La loi de l'accusé

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Getalex

Member
English - Australia
Bonjour les amis

Je cherche à me rassurer qu'il n'y pas de sens juridique dans la phrase la loi de l'accusé qui est évident au francophones mais que j'ai perdu dans ma traduction:

Dans le procès où la documentation abonde, il est donc tentant de se plier à la loi de l’accusé: en l’absence de document, il y a doute; dans le doute, écarter.

Ma tentative:

When there's an abundance of documentary evidence, it's tempting to give in to the law of the accused: where there’s no documentary evidence, there’s doubt; and if in doubt, set it aside.
 
  • Hildy1

    Senior Member
    English - US and Canada
    From what I have been able to find, it seems to refer to cases where more than one law code could apply, particularly in international cases. Would the person be tried according to the law of the country where the crime allegedly occurred, or according to the law in the person's own country?
    It might apply to trials for war crimes, crimes against humanity, etc.
     
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    Getalex

    Member
    English - Australia
    Thanks Hildy, that makes sense in the context.

    Now what I need is a good lawyer-linguist to get to the bottom of it.

    Amazingly, the library where I am has no legal Fr-En dictionary, and my own is in a box in storage!
     

    Hildy1

    Senior Member
    English - US and Canada
    The trouble with "giving the defendant the benefit of the doubt" is that it mostly means the presumption of innocence. That's the second case mentioned in the document: "dans le doute, écarter".
     

    Getalex

    Member
    English - Australia
    Good point, Hildy.

    Also, you hit the nail on the head in your first post: the trial does indeed concern a crime against humanity.

    So my question is, does la loi de l'accusé refer to some legal concept well-known to lawyers? And if so, is there a corresponding English phrase?
     

    Tochka

    Senior Member
    Not well-known enough to appear in the Council of Europe legal dictionary!
    Non plus dans Lexique de termes juridiques (Dalloz, 1981)
    Dans le procès où la documentation abonde, il est donc tentant de se plier à la loi de l’accusé: en l’absence de document, il y a doute; dans le doute, écarter. [....]
    When there's an abundance of documentary evidence, it's tempting to give in to the law of the accused: where there’s no documentary evidence, there’s doubt; and if in doubt, set it aside.
    This doesn't quite sound right to me. If there's an abundance of documentary evidence, why would you rely on a rule that kicks in when there isn't any? Or is it perhaps referring to finding the one gap in the evidence that might throw the case into doubt?

    A few thoughts:
    • Je me demande si "fall back on" serait mieux que "give in to", puis que cela se présente comme moyen to aider l'auccusé malgré l'abondance de documents.
    • "loi de l'accusé":
      • Hildy's right about avoiding terminology that already has a legal significance in an English-speaking country's law since to do so risks confusing one principle of law with another. (Of course, if the two were the same principle, that would be another matter, but as Hildy points out, that doesn't seem to be the case here.)
      • ça paraît s'agir de la loi concernante le processu (procedure)--In American jurisprudence (and I presume BE also), laws relating to procedure are called "rules".
      • In the absence of any official information which would clarify exactly what the equivalent English legal terminology would be (if such exists), for "loi de l'accusé", although it's a bit long, I would suggest: "the rule of presumption in favor of the defendant" which to me seems to state the rule's function.
      • OR, if you can establish that this is indeed a known juridical term in French, since the maxim is defined, just use the French in Italics?
      For the whole phrase, what would you think of "When documentary evidence abounds, it's tempting to fall back on the rule of presumption in favor of the defendant: where there’s a gap in the documentary evidence, there’s doubt; and when in doubt, set it aside."
    From what I have been able to find, it seems to refer to cases where more than one law code could apply, particularly in international cases. Would the person be tried according to the law of the country where the crime allegedly occurred, or according to the law in the person's own country?
    It might apply to trials for war crimes, crimes against humanity, etc.
    Normally crimes are tried according to the law of the place where they are committed (noting, of course that planning a crime can be a crime itself ;)), but war crimes and crimes against humanity would fall outside that rule.
    @Getalex: Do you have more context that would tell us the nature of the trial? Is it a human rights matter or simply cross jurisdictional crime that is at issue?
     
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    Getalex

    Member
    English - Australia
    Tochka, wow, your line of thinking has really cleared things up in my mind. I feel much closer to a solution now and I really like rule of presumption in favour of the defendant.

    Yes, absolutely I can tell you about the trial.

    The text concerns the trial of Kaing Guek Eav, alias comrade Duch. He was the Khmer Rouge commander who ran the notorious prison in Phnom Penh where tens of thousands lost their lives.

    In 2008, Duch was tried for crimes against humanity by the Extraordinary Chambers in the Courts of Cambodia (ECCC) -- a UN-backed court presided over by an international panel of judges.

    The trial was conducted in three languages -- Khmer, French and English. Duch spoke in Khmer. There are transcripts of the interpretation into English and French available online, which I've been going through. I wasn't at the trial, but from what I've read thus far, the quality of the interpreting (I don't know whether it was consecutive or simultaneous) was patchy. Some of the stuff I've read makes no sense, and some of it is good, though I can't compare it against the original Khmer.
     

    Tochka

    Senior Member
    So glad to know it!
    Note, however, that if the translation is to be relied on in a legal setting, you probably should keep searching to see if there actually is an accepted English equivalent for this. Although I've correctly used the term "presumption" in its generic legal sense, this can also be a defined term under codes of evidence, and my use of the term "rule" might be taken to imply that this particular principle is identified as a defined presumption in the code. (Of course, this is probably not a crucial matter since a good attorney should know to check the relevant code before relying on this as a rule!) All the same, to avoid this difficulty you might be able to substitute "principle of evidence" for the word "rule", although that makes the phrase longer still.:(

    Yes, absolutely I can tell you about the trial.
    Thanks for explaining the background!

    Knowing this was an international criminal court, I checked out the International Criminal Court (ICC)'s rules of procedure, which may provide some helpful phrases in parallel translation--although "loi de l'accusé" wasn't among them.
    The ICC only dates from 2002, so unless your case was more recent than it sounds, these would not have been the precise rules in effect. Still...
    A copy in English is at http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf and in French at http://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283948/RomeStatuteFra1.pdf

    Article 66 addresses the presumption of innocence.

    Good luck!
     
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