Extract
[...] However, how can we claim this equality if the prosecution can rely on elements that are inaccessible to the defense?7 Beyond the principles, it is a conception of the trial that is wavering. This one ceases to be a place of shared instruction to become a unilateral device, where suspicion prevails over verification, and where legitimacy is reduced to conformity. Procedural formalism turns into a facade, when substantive rights are relegated to the background of a security rationality The dossier-coffre is not illegitimate by nature. It can, within a strictly limited framework, respond to imperative needs of protection and strategy8. [...]
[...] The file-safe in criminal procedure: an infringement of rights or a just necessity in criminal investigation? The file-safe, a novel legal innovation, aims to allow judicial authorities to store sensitive documents outside the adversarial sphere, particularly those revealing special investigation techniques, human source identities, or operational strategies. This initiative, driven by an unusual political consensus, seeks to address a growing issue: preserving the efficiency of the investigation while legally securing the actions taken. Adopted with the favorable opinion of the Council of State, the device appears, from a positive law perspective, as a technically admissible measure. [...]
[...] In matters of deprivation of liberty, this principle is reinforced. Article 145 of the Code of Criminal Procedure imposes a contradictory debate before the judge of liberties and detention6. Moreover, the notion of equality of arms, an inseparable corollary of the contradictory, is here frontally threatened. The European Court, in the founding judgment Dombo Beheer B.V. v. Netherlands (ECHR, 1993), recalled that any party must be able to present its case under conditions that do not place it at a clear disadvantage. [...]
[...] In other words, if the file-safe embodies a justified procedural protection, can we conceive, in a state of law, a procedural space that is exempt from procedural equity in the name of efficiency?), it represents a subtle, but deeper, alteration of the equality of arms and procedural legitimacy). The construction of the file-safe as a rationally structured tool of penal efficiency The file-safe project is based on a preservation logic. Preservation, first, of the operational effectiveness of a procedure faced with increasingly sophisticated forms of crime; preservation, then, of the procedural validity of acts which, in the absence of coverage, could be annulled for a defect in communication or information. This reasoning is not without foundation. [...]
[...] II- The formalization of the dossier-coffre as a structural alteration of procedural equity The criminal trial, in its contemporary form, is based on an architecture founded on the contradictory, equality of arms, and the loyalty of the procedure. This triptych not only guarantees the defense of the rights of the litigant, but also the legitimacy of the sanction that the penal justice is capable of pronouncing. However, the dossier-coffre, by its constitutive opacity, directly enters into tension with this architecture. [...]
