L'acte de torture et de barbarie : « une incrimination criminelle trop souvent oubliée en cas de violences policières, de viol ou d'actes de sodomie »

It is rare to see criminal convictions for police officers for acts of torture or barbarity in cases of police brutality. Two very recent and separate incidents (the cases of Alexandre and Theo) in 2016 and 2017 that hit the headlines are a case in point. In both cases, a policeman or -men were accused of inserting a truncheon into the rectum of youths during their arrest or whilst in police custody, causing injuries to the anus, directly responsible for a temporary work disability. Both cases were referred to the Magistrates' court of Bobigny, an inner suburb of Paris. But the charges were amended by the magistrates in both cases, considering that this behaviour was a crime and not simply an offence. Their opinion was that the Assize Court was the only competent court to judge such cases. The accusation of rape was invoked. No final judgement has as yet been passed on either of these two cases. One can understand charges of brutality, aggravated violence, or even rape. However, on this latter point, precise justifications have to be provided, given the complexity of qualifying the insertion of a truncheon as “rape”. But why not use another type of criminal charge that might appear better suited to the situation, such as “act of torture or barbarity”. This specific concept of torture and barbarity referring to nazi war-crimes with no statute of limitation, is not very clearly defined in French law, but there is nothing to prevent the use of references to case-law or even international conventions, particularly those of the United States. Is this omission really involuntary? How can it be justified? Might there not be deliberate reticence to use such charges? In these troubled times overshadowed by the fear of terrorist attacks, the cost of dismissing the use of such criminal charges could be the loss of our democratic values.