Processus pénal et mise en détention provisoire

Abstract

Penal Process and Detention under Remand. The use of detention under remand, frequently denounced as an example of the arbitrariness of the judiciary, is usually associated with a certain type of criminal procedure, the inquisitory procedure. This article presents the problematics and method used in a study of the set of factors involved in the process leading to the issue of a committal order. The study has made it possible to verify the Durkheimian hypothesis that jurisprudence gives precise, visible, clear and official form to the often confused or even repressed literal and personal stipulations-measures (in both meanings of the term in French) of the actors and institutional mechanisms, the functioning and the foundations of which depends more on makeshift solutions and on hierarchical and social power relations than on provisions defined and laid down in procedural rules. It reveals the perceptive and cognitive structures of the agents involved and the emergence of the ethical and social categories used by judges for making decisions in this area.

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