The Dominici affair, by juge Carrias
4 - What is “intimate conviction” ?
It was under the French Revolution that the legislature decided to call upon the intimate conviction of a judge. Prior to this, justice had been done in the name of the King. Once the people became sovereign, it acted in the name of the French People. People were given the right to intervene directly to judge misdemeanours – in the form of a jury in criminal law. To define the task, the law called on reason and conscience (there was a cult of Reason at the time). For many years Article 342 of the old criminal code contained the following warning to jurors:
“The law does not require jurors to reveal by what means they arrived at their verdict; it does not prescribe rules to which they have to refer for full and sufficient proof; it only prescribes them to ask themselves in quiet and calm and to seek in the sincerity of their conscience the impression made on their reason by the evidence brought against the accused and his means of defence. The law does not tell them: “You will hold for truth every fact attested by such and such witnesses”; nor does it tell them: “You will not consider as sufficiently established proof that does not emanate from such a statement, exhibits, witnesses or clues”; it only asks them this question which contains the entire scope of their duties: “Do you have the intimate conviction?”
Intimate conviction is also to be found in the juror’s oath. In 1954, its form was that of the criminal code that the current penal code has retained, except for religious considerations. When receiving the oath, the judge at the Court of Assizes addressed the jury thus:
“You will swear and promise before God and men to scrupulously examine the charges brought against N…; not to betray the interests of the accused nor those of the society that accuses him; to communicate with no one until after your verdict; to listen neither to hate nor wickedness, neither fear nor affection; to decide according to the charges and the defence’s case, according to your conscience and your intimate conviction, with impartiality and firmness suited to a man of probity and of freedom; to keep the secret of the deliberations, even after your functions have ceased.”
It can be seen that the law imposes no particular method of proof. It only demands of juries – and judges – that they look at the evidence used both to convict or declare innocent the accused according to their reason and conscience and find according to their intimate conviction. The novelist Jean Giono understood this when he wrote (what was to become a sometimes corrupted phrase), “I do not say that Gaston Dominici is not guilty. I only say that it has not been proved to me that he was.” He then continued, “the presiding judge, the assessor, the judges, the counsel for the prosecution, the public prosecutor… all have the intimate conviction that the accused is guilty. I say that this conviction has not convinced me”.
In this system, proof is free, providing it is administered in a loyal way. It can be material or psychological, direct or indirect. The result can be - and I understand that this can shock some people – that the same element of proof can be interpreted according to a person’s conscience both to convict or declare innocent. In this way, Giono formed the opinion that Gaston Dominici was innocent as the magistrates (whose honesty and probity he never questioned) did to find him guilty.
In the case before us, we have the ceaseless variations, contradictions, denials, refusal to look at reality, etc., which were the mark of successive statements by the Dominici family. In a material sense, this attitude can give rise to doubt regarding the indictment against Gaston Dominici. This is the way those who proclaimed his innocence saw it and drew up his defence based on it. But psychologically, it can also lead to the conviction that the apparently irrational behaviour of these people was deliberate and intended to sow doubt about criminal actions by one of them. This is what I personally believe. I knew neither the judge nor the jurors of 1954 and I obviously do not know how they formed their intimate conviction, but I imagine that they had the same reaction as me. His deceit and that of his relatives contributed to his condemnation and made them lose the first battle in their war. But the doubt stemming from this behaviour certainly played a part in getting his appeal accepted, and helped win the second battle, which is something I do not regret – quite the contrary; I will return to this. As to the third battle concerning a retrial, I await it confidently.
Not being a specialist in these questions, I have preferred quoting from legal codes rather than exposing my own version. I will also refrain from giving my opinion on the principles which govern criminal justice. But I will now give the basis of my intimate conviction regarding Gaston Dominici’s guilt.