In 2004, the French legislature broke new ground in the fight against organized crime with the passage of "Loi Perben II." As part of the newly introduced procedures, organized crime is defined for the first time by means of an offense catalog, and special judicial panels and investigative measures have been introduced. The project shows how the fight against organized crime led to the introduction of a procedure for ordinary, (moderately) severe offenses.

On 9 March 2004, the French le­gis­lature en­acted the so-called "Loi Per­ben II," which con­tains one of the most far-reach­ing amend­ments of sub­stant­ive crim­in­al law and crim­in­al pro­ced­ure of the last dec­ades. This law broke new ground in the fight against or­gan­ized crime. As part of the new pro­ced­ure that defines or­gan­ized crime by means of an of­fense cata­log, spe­cial ju­di­cial pan­els have been es­tab­lished and spe­cial in­vest­ig­at­ive meas­ures al­lowed. Ex­ist­ing in­vest­ig­at­ive meas­ures have been ex­pan­ded and new meas­ures in­tro­duced. The pro­ject has three goals: The first is to cla­ri­fy wheth­er the newly in­tro­duced cata­log of of­fenses is in­her­ently co­her­ent or wheth­er the le­gis­lature used the concept of or­gan­ized crime as a pre­tense for in­tro­du­cing a spe­cial crim­in­al pro­ced­ure for (mod­er­ately) ser­i­ous of­fenses. The second is to ad­dress the ques­tion of wheth­er the spe­cial ju­di­cial pan­els for or­gan­ized crime in­volve the in­tro­duc­tion of spe­cial or ex­traordin­ary courts and to eval­u­ate these spe­cial pan­els. The third is to identi­fy and eval­u­ate the dis­crep­an­cies that have aris­en due to the in­tro­duc­tion of spe­cial in­vest­ig­at­ive pro­ced­ures for or­gan­ized crime as com­pared to or­din­ary in­vest­ig­at­ive pro­ced­ures.

In or­der to an­swer these ques­tions, the study com­pares the in­nov­a­tions of the spe­cial crim­in­al pro­ced­ure for or­gan­ized crime with or­din­ary crim­in­al pro­ced­ure in an ana­lys­is of French case law and lit­er­at­ure. Com­pat­ib­il­ity with the European Con­ven­tion on Hu­man Rights is also dis­cussed.

A sig­ni­fic­ant find­ing of this pro­ject is the show­ing that the fight against or­gan­ized crime led to the in­tro­duc­tion of a pro­ced­ure for (mod­er­ately) ser­i­ous of­fenses. The cata­log of of­fenses is in­con­sist­ent and in­cludes of­fenses that do not con­sti­tute or­gan­ized crime. In­stead, it cov­ers or­din­ary, mod­er­ately ser­i­ous to ser­i­ous of­fenses that are pun­ish­able with a max­im­um sen­tence of at least ten years im­pris­on­ment, with no dis­cern­ible uni­form cri­ter­ia be­hind the clas­si­fic­a­tion as or­gan­ized crime. The ad­op­tion of the cur­rent cata­log of of­fenses in­to a crim­in­al pro­ced­ure en­titled "Crim­in­al Pro­ced­ure for Or­gan­ized Crime" thus serves as a pre­tense to sub­mit a smor­gas­bord of of­fenses to a spe­cial crim­in­al pro­ced­ure that is equipped with ex­pan­ded and spe­cial in­vest­ig­at­ive pro­ced­ures.

The spe­cial ju­di­cial pan­els are, however, in­teg­rated in­to the ex­ist­ing ju­di­cial or­gan­iz­a­tion and – ex­cept for the high level of spe­cial­iz­a­tion of the re­spons­ible "ma­gis­trats" – are in­dis­tin­guish­able from the or­din­ary courts. The motive for their in­tro­duc­tion is ex­ped­i­tion of pro­ceed­ings by means of cent­ral­iz­a­tion and spe­cial­iz­a­tion. In ad­di­tion, the con­sol­id­a­tion of con­nec­ted of­fenses pre­vents un­ne­ces­sary pro­ced­ur­al du­plic­a­tion.

As far as the in­vest­ig­at­ive meas­ures are con­cerned, the in­tro­duc­tion of a spe­cial crim­in­al pro­ced­ure for or­gan­ized crime led to the stat­utory co­di­fic­a­tion of in­vest­ig­at­ive meas­ures that were pre­vi­ously only partly reg­u­lated or not at all. However, these meas­ures can­not be car­ried out without ref­er­ence to or­din­ary pro­ced­ure. Thus, al­though the le­gis­lature may have in­ten­ded to cre­ate the im­pres­sion that it had es­tab­lished a spe­cial crim­in­al pro­ced­ure just for or­gan­ized crime, the new pro­ced­ure is really only an ex­pan­ded ver­sion of or­din­ary pro­ced­ure. In fact, the primary aim was to in­tro­duce new and ef­fect­ive in­vest­ig­at­ive meas­ures in­to po­lice in­vest­ig­a­tions and to jus­ti­fy them by means of a heightened re­quire­ment of ju­di­cial au­thor­iz­a­tion. Due to the ex­ist­ing double role of the liberty and cus­tody judge (juge des liber­tés et de la de­ten­tion), however, this has not suc­ceeded. Fur­ther­more, the in­tro­duc­tion of the spe­cial crim­in­al pro­ced­ure led only to mar­gin­al im­prove­ments in the po­s­i­tion of the ac­cused; these are, however, out­weighed by re­duc­tions of his or her rights.

This pro­ject is a doc­tor­al dis­ser­ta­tion su­per­vised by Prof. Dr. Ul­rich Sieber of the Uni­versity of Freiburg.