Journal of Criminal and Criminology Volume 31 Article 5 Issue 2 July-August

Summer 1940 Offences Against the French State Committed Abroad Jean Barbey

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Recommended Citation Jean Barbey, Offences Against the French State Committed Abroad, 31 Am. Inst. Crim. L. & Criminology 188 (1940-1941)

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Preface by the Translator: Since the following article was written, a new law was passed on July 29, 1939 (Lois Nouvelles, 1939, p. 934 et seq.), which consolidated all previous legislation on the subject, made some important changes and formulated a new text of sections 75 to 86 of the Penal Code. References in the article are therefore to the former sections of the Code. The new law divides and delicts against the external safety of the State into three categories: (1) crimes committed by a Frenchman, which constitute treason (sections 75, 76), (2) crimes committed by a foreigner, which constitute espionage (section 77), and (3) minor offences which, whether committed by Frenchmen or foreigners, constitute a when committed in peace time, and a when com- mitted in time of war (sections 79-82). Two new crimes of treason are established: acts committed by a Frenchman for purposes of espionage, and sabotage of national defence (section 76). Art. 78 defines the term "secrets of national defence." Art. 83, para. 6, puts into effect a change advocated by M. Barbey (supra p. xxx), by providing that all delicts against the external safety of the State committed abroad shall be punished in the same way as delicts committed in France. The new law also puts the crimes and delicts with which it deals under the jurisdiction of the military tribunals, with a few exceptions only (new sections 553-569 of the Code of Criminal Instruction).

Introduction following cases: first, by virtue of the Crimes and delicts' directed against principle of territorial jurisdiction, if the French State are subject in France they were committed on French terri- to special rules different from those tory, and second, by virtue of the prin- governing crimes and delicts against ciple of personal jurisdiction, if they private individuals. For the latter, were committed by Frenchmen abroad. prosecution can be had only in the two Crimes and delicts against the State,

I Translated by Dr. Magdalene Schoch, Har- afflictive ou infamante," such as the death vard Law School, from Revue de Science Crim- penalty, life-long forced labor, deportation, de- inelle et de Droit Penal Comparg (published tention, banishment; "d~lits" are offences pun- under the auspices of the Institute of Crimin- ishable by "peines correctionnelles," such as ology and the Institute of Comparative Law of imprisonment, loss of civic rights, fines; "con- the University of Paris), April-June number, traventions" are punished by police penalties 1939. (see articles 1, 6, 7, 8, 9 of the Penal Code). The 2Docteur en droit and S.J.D. Harvard. organization of the criminal courts corresponds to the distinction: the Justice of Peace has juris- S Translator's note: French penal law divides diction over "contraventions," the Tribunal of offences into "crimes," which roughly correspond First Instance has jurisdiction over "d~lits," and to , "delits," which approximately corre- "crimes" fall under the jurisdiction of the As- spond to excepting police offences, size Courts (see articles 138, 179, 231 of the Code and "contraventions,' 'which may be rendered by of Criminal Instruction). In order to preserve police offences. The classification is determined the technical meaning of "crimes" and "6dAlits" by the penalty provided for in the Penal Code. as used by the author, the translator has ren- "Crimes" are offences threatened with a "peine dered them by the terms "crimes" and "delicts." [188] OFFENCES AGAINST THE FRENCH STATE however, can be punished even if they from being used for the preparation of were committed by a foreigner in a for- crimes which would injure the most eign country. valuable legal interests of other mem- This distinction rests on the serious- ber States. ness of offences against the State, af- Unfortunately, in the present state of fecting the French social order as a law, article 10 of the Covenant seems whole and which, therefore, must be to have had little influence as regards repressed even if they are acts of a our subject. The majority of national foreigner and committed in foreign legislations do not provide in any territory. - manner for the repression of crimes It is true that normally prosecution and delicts against foreign States, and should be undertaken in the tribunals those which do, confine themselves to of those countries where the offences measures safeguarding their national 5 were committed. In the actual state of interests, as for instance articles 84 and 6 positive law, however, it may be asked 85 of the French Penal Code. whether foreign tribunals do in fact This state of affairs has been justly guarantee the effective punishment of criticized. It is contrary to the devel- crimes and delicts committed in their opment of an ever increasing solidarity territory against the French Govern- between the various countries. But as ment? This is highly doubtful, since long as it exists national tribunals will effective protection of foreign interests practically have to rely on their own is secured in the legislation of only a law for the punishment of offences 4 few countries. committed abroad against their gov- It would.seem that the general adop- ernment. tion of provisions for mutual protection Thus, since early times, national leg- would result from the application of islations have attempted to repress of- Art. 10 of the Covenant of the League of fences menacing the safety of the Nations, according to which "the mem- State.' In ancient Rome certain crimes bers of the League undertake to re- which seriously endangered public spect and preserve as against external order, such as counterfeiting Roman aggression the territorial integrity and currency, or leze majesty, were punish- existing political independence of all able regardless of the place of the Members of the League." This clause crime or the person of the offender.8 imposes on the members of the League In Italy, in the 13th and 14th centuries, an obligation to prevent their territories various provisions in the statutes of the

4 Cf. Preuss, La r~pression des crimes et d~lits tile acts not approved by the Government, contre la soci~t6 des Etats 6trangers, Revue g~n. makes French nationals liable to reprisals shall de droit intern, public, 1933, p. 606 et seq. be punished by banishment." 5 Cf. Preuss, op. cit., supra. 7For the historical development, see H. Don- 6 Translator's note: Art. 84 provides as fol- nedieu de Vabres, Introduction A 1'4tude du lows: "Whoever, through hostile acts not ap- droit p6nal international, Sirey, 1929. the State proved by the Government, makes sTranslator's note: Cf. P.M. Schisas, Offences liable to a declaration of war, shall be punished by banishment, and, if war should ensue, by against the State in Roman Law (London, 1926), deportation."-Art. 85: "Whoever, through hos- easp. p. 13 et seq. JEAN BARBEY

Lombard cities established juresdicion second and much more delicate prob- over and threatened punishment to lem to determine whether all of these foreigners who committed hostile acts offences are punishable irrespective of against the City outside its territory. whether they are committed by French Today, the repression of crimes and nationals or by foreigners. A solution delicts against the safety of the State which pays no attention to the nation- is established in most national legisla- ality of the offender certainly has the tions. It has likewise been confirmed advantage of simplicity. But is it a just in the Codigo Bustamente ° and the solution? Are there not certain dis- resolutions of the Institute of Inter- tinctions between the position of the national Law.1' French and the foreign offender which It is the object of this article to out- must be recognized? This will be the line the attitude of French law towards second question which we shall have to offences directed against the French examine. State which are committed in foreign 1. The Role of the Locality. countries. We shall first consider the Art. 7 of the French Code of Crim- scope of the acts punishable, and second inal Instruction, as amended by the law the rules governing prosecution of these of June 27, 1866, specifies the crimes acts in the French courts. punishable. It provides as follows: "Any foreigner who, outside French I. WHAT ACTS AnE PUNISHABLE. territory, has rendered himself guilty, There are crimes and delicts against either as principal or as accomplice, of the French State which, though pun- a crime against the safety of the State, ishable when committed in France, are or of counterfeiting the State Seal, the free from any penal sanction if they are current national coin, the national done abroad. The reason is that paper money or bank notes authorized French public order is less directly by law, can be prosecuted and sen- affected by offences committed outside tenced according to the provisions of France than it is by criminal acts done French law." within the foreign country. Our first This provision, to which Art. 5 of the problem therefore is to determine what Code of Criminal Instruction refers crimes against the French State are (which establishes rules governing punishable when committed abroad. offences committed by French nationals After having answered this question, abroad 12) covers two categories of we are immediately faced with the offences. First, offences against the 9 For the texts of the principal foreign penal laws." See International Legislation, see Travers, Le droit penal international et sa Manley 0. Hudson ed., vol. IV, 1931, p. 2279 mise en oeuvre en temps de paix et en temps et seq.) de guerre, vol. 1, 1920, p. 510 et seq. 11 See art. 4 of the Resolutions in conflict of 10 See art. 306 of the Codigo Bustamente. laws in matters of competence, adopted by the (Translator's note: The article provides as fol- Institute of International Law, on August 3, lows: "Every national of a contracting State or 1931, Annuaire de l'Institut de droit interna- every foreigner domiciled therein who commits tional, 1931, vol. 8, p. 235. in a foreign country an offence against the inde- 12 Translator's note: The full text of Art. 5 pendence of that State remains subject to its of the Code of Criminal Instruction is as follows: OFFENCES AGAINST THE FRENCH STATE

safety of the State, i.e. the crimes con- contemplated in Articles 132 and 139 of templated by Articles 75 to 102 of the the Penal Code,'1 6 which, though re- 3 Penal Code,' to which must be added sulting from more subtle manoeuvres, those established by Articles 104 to are not less damaging to French inter- 4 108 of the Code of Military Justice ests. A recent example is offered by and finally those offences which are the law of August 18, 1936, which pro- created by special legislation, as for vides punishment of imprisonment and instance the law of January 26, 1934, fines for any person who, by any means, concerning espionage." In the second spreads among the public false rumors place, it includes offences against the destined to cause the public to with- State credit, as enumerated in articles draw funds or sell government bonds.' 132 and 139 of the Penal Code: crimes The offences created by this law are not of counterfeiting the State Seal, the punishable in France if they were com- national money, bonds or notes issued mitted in a foreign country. Thus, the by the Treasury. criminal character of an act varies ac- This list is strictly exclusive. Of- cording to the place where it is done. fences which do not figure in it, can- It varies likewise according to the not be punished in France. This applies nationality of the actor. As we shall to delicts against government adminis- see now, certain acts declared criminal tration which consist in serious when committed by Frenchmen are not breaches of duty of certain public ser- punishable when done by foreigners. vants, and which are punishable in other countries, such as England, Ger- 2. The Role of Nationality. many, the United States. The same is At first sight, one might believe that true of certain acts injurious to the no distinction should be drawn be- credit of the State other than those tween French and foreign nationals

"Any Frenchman who, outside the territory of "No prosecution can be had until the accused France, has rendered himself guilty of a crime returns to France, except for the crimes listed punishable under French law, can be prosecuted in article 7 infra." and tried in France. 13 Translator's note: Articles 75 to 85 deal "Any Frenchman, who outside the territory of with offences against the external safety of the France, has rendered himself guilty of an act State, such as carrying arms against France, characterized as a delict in French law can be acts of treason and espionage; articles 86 to 102 prosecuted and tried in France, if the act is deal with offences against the internal safety of punishable by the law of the country where it the State. was committed. 14 Translator's note: The articles referred to "In either case, whether a crime or a delict deal with treason, espionage and soliciting has been committed, no prosecution may be soldiers to desert. brought if the accused shows that a final judg- 15 Translator's note: "An act for the repression ment was rendered in the matter by a foreign of delicts of espionage and delictual acts en- court and, in case of conviction, that he has un- dangering the external safety of the State." dergone his punishment or that it has lapsed, or For the text and an abstract of the "travaux that he has obtained a pardon. pr~paratoires," see Les Lois Nouvelles, 1934, p. "in the case of a delict committed against a 136 et seq. French or foreign private individual, prosecu- 16 Translator's note: Article 132 deals with tion cannot be begun except upon the request the counterfeiting of money, article 139 with the of the Public Ministry; it must be preceded by counterfeiting of the State Seal and banknotes. a complaint of the injured party or by an 17 Translator's note: "An Act for the repres- official denunciation to the French authorities sion of attacks on the credit of the Nation." by the authorities of the country where the For text and "travaux prdparatoires," see Les delict was committed. Lois Nouvelles, 1936, p. 902 et seq. JEAN BARBEY with regard to the criminal character This results from the text of the arti- of an act. According to this view, cles referred to, and the explanation is, whenever an offence has been com- that these are acts of high treason. mitted against the safety or the credit In all the cases mentioned so far, of the French State, punishment should the results are indisputable. Other result irrespective of the nationality cases are open to doubt, or at least of the offender. were so until the law of January 26, French legislation has not, however, 1934. The new law deals with the of- adopted this solution. It distinguishes fences covered by articles 76 et seq. between Frenchmen and foreigners. of the Penal Code which consist in This distinction is just, for there exist "engaging in machinations or holding offences for which Frenchmen alone intercourse with foreign powers or can be held responsible. They are of- their agents, with the object of induc- fences consisting in a breach of a duty ing them to commit hostilities or to of loyalty towards the State, such as wage war against France." Before it the crime of carrying arms against was enacted, the question whether the France as viewed by Art. 75 of the above article was applicable to for- Penal Code. The text of the Article eigners was highly controversial."9 One runs thus: "Any Frenchman who has opinion maintained that these acts carried arms against France shall be should only be punishable when com- punished by death." Other examples of mitted by Frenchmen, because they offences confined to French nationals consisted in the violation of a duty of are those dealt with in Articles 80 and loyalty which was binding only on 81 of the Penal Code. 8 Here, too, the French nationals. A considerable num- text implies that they are punishable ber of authors, however, were inclined only when committed by French na- to treat foreigners domiciled in France, tionals. and even non-domiciled foreigners, on On the other hand, there are offences an equal footing with Frenchmen as re- for which foreigners can be punished gards the crime in question. The latter as well as Frenchmen. These are opinion, which was also shared by the crimes against the internal safety of Courts, 0 was adopted by the law of the State according to Articles 86 et seq. January 26, 1934. of the Penal Code, and the crimes In imitation of certain foreign laws, against the State credit according to and particularly of the German law of articles 132 and 139 of the same Code. April 24, 1934,21 the French law estab-

18 Translator's note: Art. 80 provides the death Vabres, Des crimes et d6lits contre la chose penalty for "any public officer, Government publique, Cours de droit p~nal sp6cial, 3e ann6e, agent, or any other person" who has delivered p. 33 et seq. an official secret to the agents of a foreign 20 For application of art. 77 of the Penal Code power or of the enemy. Art. 81 provides the to foreigners, cf. Cass. crim., August 23, 1917, same penalty for."any public officer, any agent Clunet, 1917, p. 1748 (Sedano c. Leguizano); for or employee of the Government," who delivers application of art. 78, cf. Cass. crim., January 15, to the enemy plans of fortifications, arsenals, 1920, Clunet, p. 195 (Urios). etc., of which he is in charge. 22 Translator's note: The Law amending cer- 19 For further details see H. Donnedieu de tain provisions of the Penal Code and the Code OFFENCES AGAINST THE FRENCH STATE

lishes the principle of uniform treat- In the first place, there exist rules 22 ment of foreigners and Frenchmen. referring to the criminal law of the This is done expressly with regard to place of the crime. For certain offences acts of espionage, and indirectly and a prosecution and trial cannot be had in fortiori as regards crimes against the France unless the acts in question are security of the State, as enumerated in punishable under the law of the coun- Articles 76 et seq. of the Penal Code. try in which they were committed. We Thus the law of January 26, 1934 shall have to consider, therefore, to marks an important stage in the de- what extent the law of the place of velopment of punishment of offences acting is taken into account. committed abroad against the French Then it may be that the delinquent State. Until the promulgation of that is absent or has escaped. The question law, simple delicts were punishable which then arises is, to what extent a judgment by default only when they were committed by can be effective. Finally, it may happen that the de- Frenchmen. In cases where they were linquent has been convicted abroad for attributable to foreigners, the silence of an act which is punishable under the law assured immunity for those French law. To what extent should guilty. The new law has abolished the such conviction be taken into account? distinction between foreigners and This is the third question with which Frenchmen in matters of espionage. we have to deal. The change is the more striking as a decree-law of June 17, 1938, has im- 1. When Act Must Be Punishable posed the death penalty for acts of Under the Lex Loci Delicti. espionage. Generally speaking, our tribunals But the law of 1934 did not stop adhere to the principle of the exclusive there. It also considerably modified the application of the French penal laws, general rules governing the prosecution and do not take into consideration the of crimes by the French courts. foreign law of the place where the act was committed. The reason is obvious: II. PROSEcUTION in FRENcH COURTS. if the French tribunals made prosecu- In order that a person can be con- tion dependent on whether the law of victed of a crime, it is not sufficient the place of acting declares the act that the acts committed constitute a punishable, the result would be that criminal offence under French law. in the vast majority of cases where an Certain additional conditions must be offence against the French State was fulfilled, which may be divided into committed abroad it would be impos- three groups. sible to prosecute in France, since most of Criminal Procedure (Reichsgesetzblatt, 14, foreigner, the consent of the Minster of Justice vol. I, p. 341) provides in article 3I that a Ger- is required. 22 The expression "any person" (tout individu) man or a foreigner who has committed abroad used by the law makes it clear that it does not an act of treason against the German Reich can take into account the nationality of the de- be prosecuted in Germany; in the case of a linquent. JEAN BARBEY

foreign laws do not provide penal sanc- to the foreign penal law (double incrim- tions for an act directed against the ination), it should be noted, applies to French State. This state of affairs is delicts against private individuals as due to the lack of reciprocal assistance well as those against the State. The between governments in criminal mat- legislature of 1866, which introduced 23 ters. the rule into article 5, para. 2, of the The principle stated above applies Code of Criminal Instruction, had no whenever the act done abroad against intention of drawing any distinction the French State was committed by a between the two classes of delicts. Yet foreigner. A foreigner can be prose- the application of the rule presents cuted in France only for a crime, never grave inconveniences. The punish- for a simple delict. A crime against ment of delicts against the French State the safety of the State injures the is ordinarily not provided for in foreign national interest sufficiently to justify penal laws, so that prosecution in the rule that the French legislator France is prevented in most cases. alone is competent to determine the The courts have well recognized the necessary punishment. Hence in such danger and have developed important cases the judge is bound to apply restrictions on the principle of double French law to the exclusion of any incrimination. In cases where French other law. public order was concerned, several On the other hand, where the decisions have admitted prosecution in offender is a French national who has France for offences which were not committed a simple delict, the situa- punishable under the law of the coun- 25 tion is different. A Frenchman who try in which they occurred. has committed a delict against the Now the law of January 26, 1934, French State in foreign territory can has completely abolished the principle only be prosecuted in France if the act of double incrimination for delicts of in question is punishable under the espionage. This is an important reform. legislation of the country where it was It tends to reinforce the repression of committed. This results clearly from offences against the safety of the article 5, para. 2, of the Code of French State, by giving jurisdiction to Criminal Instruction.2" French courts and making them inde- The underlying consideration is, that pendent of the attitude of the foreign a simple delict committed abroad legislator. against the French State is not suffi- 2. When Judgment by Default May ciently grave to call for prosecution in France if it does not fall under the be Pronounced. foreign penal law. The rule of reference A very clear distinction is drawn in

22 Cf. in this sense, H. Donnedieu de Vabres, tionale de droit compar4," vol. H, part 3, p. 224 Application de la loi p6nale dun Etat aux in- et seq. fractions commises par un 6tranger hors de son 24 Translator's note: Text see supra, note 12. territoire, "M1moires de rAcadimie interna- 25 See in particular Cass. crim., June 13, 1917, p. 1920, p. 143, Int&dt de la loi c. Rivi~re. OFFENCES AGAINST THE FRENCH STATE

French law between the position of possess property in France, and, in any French nationals and that of foreigners case, by giving effect to a judgment by when the question arises whether a default or in contumaciam against him, judgment may be pronounced against we shall prevent him from returning them by default or in contumaciam. with impunity into France, which im- As regards a French national, there poses at least some sanction. is no doubt that such a judgment may In reality, the distinction between be rendered. Art. 5, para. 6, of the French and foreign nationals in this Code of Criminal Instruction 6 estab- matter appears to me to be most objec- lishes an express exception to the gen- tionable. No principle of international eral rule that no prosecution shall take law would be violated if our legislation place unless the accused has returned permitted the rendering of judgments to France; it provides that a French- in absentia against foreigners. Numer- man may be prosecuted for a crime ous foreign legislations have adopted 27 against the safety of the State, com- this solution. mitted abroad, even during his absence In this respect the law of 1934 has from France. again accomplished a welcome reform, A foreigner, on the contrary, can be in that it does not require the presence brought to trial in France only if he of the accused in French territory, re- has been arrested on French soil or his gardless of his nationality. This means extradition has been obtained (Art. 7, that in matters of espionage a judg- para. 1, of the Code of Criminal In- ment in contumaciam can be pro- struction). nounced against French nationals and Thus the French courts have primary foreigners alike. The reform should jurisdiction over French nationals, be extended to crimes and delicts since the prosecution is independent of against the French State generally. the accused person's presence, volun- In the meantime, in all matters except tary or forced, within French territory; espionage, judgments by default are whereas their jurisdiction over foreign- effective only as against French ers is secondary only. nationals. On the other hand we shall The distinction has been justified by see that as regards the recognition of various arguments. It has been said in foreign judgments, French law is more particular that conviction in con- severe towards foreigners than it is tumaciam is more effective against a towards Frenchmen. Frenchman than against a foreigner, 3. Effects of Foreign Penal Judg- because the Frenchman ordinarily owns ments. property in France, while a foreigner A. The Position of French Na- as a rule does not. tionals. This argument is, in my opinion, not convincing. A foreigner may in fact A Frenchman can plead a foreign

26 See supra, note 12. par un 6tranger hors de son territoire, "Mlmoires 27 Cf. H. Donnedieu de Vabres, Application de de l'Acad~mie internationale de droit compar6," la loi p~nale d'un Etat aux infractions commises vol. II,part 3, 1935, p. 224 et seq., 23L JEAN BARBEY penal judgment (acquittal or convic- delict is committed against a private tion) obtained by him, whenever he is individual, the social order of the place tried for the same offence in a French of acting is most seriously affected. court. Art. 5, para. 4, of the Code of Where offences are directed, however, Criminal Instruction provides that no against the French State, the contrary prosecution may be brought if the is true: here the French social order accused shows that a final judgment is primarily interested. Therefore, in was rendered in the matter by a for- these latter cases the offender should eign court, and, in case of conviction, not be permitted to plead a foreign that he has undergone his punishnient, criminal judgment. If this solution or that it has lapsed, or that he has were adopted, it would have the ad- obtained pardon. vantage of harmonizing the position of This rule, it is to be noted, is not Frenchmen with that of foreigners. satisfied by the mere existence of a judgment rendered abroad. It requires B. The Position of Foreigners. in addition that in case of a conviction The Code of Criminal Instruction is the penalty pronounced has actually sildnt as to the effect to be given to been suffered or is extinguished by foreign criminal judgments in cases lapse of time, or that a pardon has been where a crime was committed abroad granted. This additional requirement by a foreigner. It seems that this was introduced by the law of April 3, should be interpreted as denying any 1903, amending Art. 5 of the Code of effect to such judgments. Criminal Instruction which had already It is true that with regard to crimes been modified by the law of June 27, or delicts committed in France, article 1866. The amendment of the text of 7, para. 2, of the Code of Criminal 1866 was necessary. In effect, under Instruction (as amended by the law of the law of 1866, a delinquent who had April 3, 1903) grants the foreigner the succeeded in escaping from the country right to plead, in the French courts, a in which he had been sentenced, en- foreign judgment rendered in the mat- joyed complete impunity in France. ter, and thus to avoid a second prosecu- This undesirable situation was reme- tion in France. died by the law of 1903. Certain authors, basing their argu- Both in the former and in the present ment on the article referred to and on language of article 5, para. 4, of the the analoguous provision of article 5, Code of Criminal Instruction, no dis- para. 4, of the Code of Criminal In- tinction whatever is made as regards struction, have contended that, by way the nature of the crime or delict. It of analogy and a fortiori, the same rule applies equally to crimes and delicts should apply to foreigners who have against the State and to offences against committed a crime in a foreign coun- private individuals. try. Why-so they argue-treat this For the latter offences the solution foreigner more severely than a for- is satisfactory; for when a crime or eigner who has committed the offence OFFENCES AGAINST THE FRENCH STATE in France? The combined fact of his the question, it seems that a foreigner foreign nationality and the commission should not be entitled to plead a for- abroad should rather place him in a eign judgment in a matter which is 28 more favorable position. before the French criminal courts. The This reasoning is open to criticism. same rule should apply to French In the field of criminal law, strict inter- nationals. In analogy to a number of pretation is the established rule. The foreign legislations," no difference legislation of 1903 has allowed the right should exist between the position of to plead a foreign criminal judgment Frenchmen and foreigners in this only to French nationals and to those matter. foreign nationals who have committed the offence in question in France. In CONCLUSION the absence of an express mention of The numerous alterations which foreigners who have committed a crime articles 5 and 7 of the Code of Criminal abroad, the statutory provision cannot Instruction have undergone and the be held applicable to them. promulgation of new criminal laws To adopt the opposite point of view such as the law of January 26, 1934, is not only contrary to a reasonable have rendered the question of punish- interpretation of the law, but would ment of crimes and delicts against the also lead to regrettable practical con- French State, committed abroad, high- sequences. The same considerations of ly complex. protection of the French social order Yet the general position of French which, as we have pointed out, would law in the matter is clear. Our law is justify the rule that French nationals directed towards the repression of such should not be permitted to plead a offences. This is apparent both in the foreign criminal judgment are valid in scope of offences declared punishable cases where the offence was committed and in the conditions for prosecution in by a foreigner. In the latter case a France. further consideration may be added: We have seen that the scope of of- where the crime was committed by a fences punishable has generally been foreigner, the foreign tribunals will be widened. Under the Code of Criminal inclined to a certain leniency, so that Instruction of 1808, only crimes were the sentence pronounced is likely to punishable. The Law of June 27, 1866, be inadequate, from the French point provided for the punishment of delicts of view, for a crime which endangered committed by French nationals abroad. the French social order. Finally the law of January 26, 1934, Thus from whatever angle we view sanctioned the punishment of delicts of

28 Cf. La Poittevin, Code d'instruction crimi- foreigner who commits, outside Italian terri- nelle annot, 1911-1915, comment on art. 7, voL 1, tory, an offence against the security of the p. 125, no. 169. See also Matter, La Competence State or an act of counterfeiting the currency p6nale des tribunaux frangais et les conflits de of the Kingdom... shall be prosecuted in the lois, Clunet, 1904, p. 619 et seq. Kingdom, even if he has been judged for the 29 See for instance article 4 of the Italian Penal same act in a foreign country, if the Minister Code, which provides that "An Italian or a demands it." JEAN BARBEY espionage, regardless of whether they eign judgments, whether convictions or were committed by foreigners or acquittals. Jurisdiction assumes a de- Frenchmen. fensive character; it has for its sole As regards prosecution in the French basis the national interest. courts, the tendency is no less marked. This movement of self-protection in Since the law of January 26, 1934, criminal matters is a direct conse- whenever the French government in- quence of the nationalism which has tervenes for the protection of its in- prevailed with particular Intensity terests, it no longer subordinates its since the war. It is regrettable, because action to the convenience or the atti- it is contrary to the solidarity which tude of a foreign sovereign, as it did should exist between nations. Jurisdic- under the former law. Our law has not be based solely on the ceased to take account of either the tion should criminal character of the act according interests of the State, but on the duties to the law of the place of the crime, or which each State has within the inter- the presence, voluntary or enforced, of national community. It should be or- the accused in French territory, and it ganized not on a national but a uni- is diminishing the effects given to for- versal basis.