Gérald Pandelon, criminal lawyer: "Lyhanna didn't fall victim to a flaw in the justice system, she fell victim to its organized indifference."

As the funeral of Lyhanna, the murdered 11-year-old schoolgirl, takes place this Friday, we interviewed Gérald Pandelon. A lawyer at the Paris Bar, he specializes in criminal law, business criminal law, and international criminal law, and holds doctorates in private law and criminal science, as well as political science., He is also registered with the International Criminal Court in The Hague. He shares his thoughts on the failings of the justice system, which has been heavily criticized following the numerous blunders surrounding the main suspect, Jérôme Barella…

Jérôme Goulon: You are the author of The France of the bossesTell us about this book…
Gérald Pandelon: The France of the bosses This is a criminological and philosophical meditation on the moment when a society, by constantly managing crime through statistics and directives, ceases to understand it. I denounce something simple yet terrible: we have replaced criminal policy with criminal communication. The institution doesn't lack documents; it lacks meaning, a hierarchy of priorities, and budgetary courage. The Lyhanna case is a tragic illustration of this: not a glitch in the system, but a symptom of a system that sees but does not act.

Can we legally speak of "serious misconduct" by the justice system in the Lyhanna case, or is it still too early?
The classification rests solely with the judge, in this case the Paris Judicial Court, the natural judge of state liability arising from the functioning of the justice system. It is therefore legally premature to declare it. However, it is not premature to gather the constituent elements, and these appear, based on the information currently available, to be alarming. Since the plenary assembly ruling of February 23, 2001 (Bolle-Laroche), gross negligence, as defined in Article L. 141-1 of the Code of Judicial Organization, is no longer defined by the "serious" fault of an isolated agent, but rather as any deficiency characterized by an act or series of acts demonstrating the inability of the public justice service to fulfill its assigned mission. But it is precisely a series of events—old reports, a detailed complaint from August 2025, a child interviewed, expert assessments commissioned, and yet a suspect never questioned for nine months—that outlines this incompetence. Gross negligence is not found in a single culprit; it is understood in a chain of events. And this chain, here, appears to have broken at every link.

What is the difference between a miscarriage of justice, a judicial malfunction, and gross negligence on the part of the State?
These are three distinct categories that should not be confused. A miscarriage of justice, strictly speaking, is the conviction of an innocent person, remedied through review (Articles 622 et seq. of the Code of Criminal Procedure) and compensation for wrongful detention. Malfunction, or "defective functioning of the justice system," is the substantive category defined in Article L. 141-1 of the Code of Judicial Organization: the system did not function as it should have. Gross negligence, on the other hand, is the threshold of severity that alone triggers compensation: not every malfunction engages the State; only one that reaches the level of a serious deficiency does. In other words, a malfunction is the act itself; gross negligence is its aggravated legal qualification; a miscarriage of justice is a separate category, governed by its own rules. The pedagogy of this distinction is not merely academic: it is this distinction that determines the admissibility of the families' legal action.

"Inaction in the face of a complaint of rape of a minor is not just another fault: it is a breach of obligation.".« 

If a complaint of sexual violence against a minor was not dealt with quickly enough, can this engage the responsibility of the State?
Yes, without the slightest ambiguity, and for two reasons. Domestically, unreasonable delay is the very archetype of the denial of justice targeted by Article L. 141-1 of the Code of Judicial Organization, which case law interprets not merely as a refusal to adjudicate but as any failure by the State to fulfill its duty of judicial protection. In terms of international conventions, the European Court of Human Rights imposes positive obligations on the State: Article 3 of the Convention requires not only that children not be mistreated, but that they be protected from abuse by third parties and that an effective and diligent investigation be conducted (MC v. Bulgaria, 2003; O'Keeffe v. Ireland, 2014; E. and Others v. United Kingdom, 2002). Inaction in the face of a complaint of rape of a minor is not just another fault: it is a violation of a reinforced obligation, at the very top of the hierarchy of protected values.

Who can be held responsible: the prosecutor's office, the investigators, the magistrates, the State, or the entire judicial system?
A distinction must be made between liability for damages and personal liability. With regard to victims, the debtor is the State, and the State alone: ​​it is responsible for the malfunctioning of the system, regardless of the agents involved—prosecutors, investigative services, or the courts. This is a guarantee for the individual seeking justice, who does not have to identify a specific culprit. Internally, however, responsibility is distributed: the prosecutor's office, which decides whether to prosecute and directs the investigation, bears responsibility for the procedural timeline; the investigative services, for the execution of the acts; and the central administration, for the allocation of resources and the setting of priorities. It would be a mistake to look for an individual scapegoat when it is the entire organization, and the political hand that provides it, that must be questioned.

Can the victim's relatives take legal action against the State for a malfunctioning justice system?
Yes. The relatives, as indirect victims and beneficiaries, have standing and a legitimate interest in bringing an action against the State Legal Agent before the Paris Judicial Court, based on Article L. 141-1 of the Code of Judicial Organization. They will have to establish three cumulative elements: gross negligence or a denial of justice; harm, in this case, the most irreparable kind; and a causal link between the negligence and the harm. It is this last point that will be the crux of the dispute: the State will argue that no one can definitively assert that diligence would have saved the child. The counter-argument will be that the breached obligation was precisely an obligation of vigilance and protection, and that the loss of the opportunity to avoid the tragedy constitutes, in itself, compensable harm.

"That the left hand of justice ignored what the right hand knew is not inevitable: it is an organizational failure, and therefore a mistake."

What evidence would be needed to demonstrate that the justice system failed in its mission of protection?
The demonstration is chronological before it is legal. It is necessary to reconstruct, piece by piece, the traceability of the alerts: the old reports dating back to 2017; the complaint of August 22, 2025, and its aftermath; the child's hearing; the forensic and psychological assessments of autumn 2025; and then the gap, the months-long absence of any questioning of the suspect. The structural elements must also be considered: the vacant positions publicly announced as early as April 2025, including that of a magistrate dedicated to the protection of minors; any internal instructions that were ignored; and, when it is released, the report of the General Inspectorate of Justice. Since the Bolle case, proof of gross negligence does not reside in a single act: it is built up through accumulation, by highlighting a set of factors that make the service's incompetence manifest.

Should the fact that a suspect had already been the subject of previous proceedings or complaints have triggered particular vigilance?
This is, legally, the heart of the scandal. Our legal system has specifically equipped itself with the tools for cross-referencing information: the National Automated Judicial File of Perpetrators of Sexual or Violent Offenses (FIJAIS, art. 706-53-1 et seq. of the Code of Criminal Procedure), the reporting mechanisms of Article 40 of the same code, and, since the law of April 21, 2021, the sliding statute of limitations, which extends the statute of limitations for past offenses when the same perpetrator reoffends against another minor. These mechanisms are only effective because they are interconnected. A person reported since 2017, the subject of several complaints, should have been an absolute focal point of institutional vigilance. That the left hand of the justice system ignored what the right hand knew is not inevitable: it is an organizational failure, and therefore a fault.

Are there specific obligations when a complaint concerns sexual violence against a minor?
Yes, and they are of particular intensity. The legislature has made the protection of minors a priority in criminal policy, reaffirmed by successive circulars; the law of April 21, 2021, established a fifteen-year age of consent and strengthened the probationary and statute of limitations; the International Convention on the Rights of the Child (Articles 19 and 34) and the Lanzarote Convention impose enhanced due diligence; the CIIVISE (Interministerial Commission for the Protection of Minors) has formulated eighty-two recommendations, most of which remain unheeded. There is therefore an obligation of qualified speed: what might be tolerated, unfortunately, in the handling of ordinary litigation becomes wrongful when a child's integrity is at stake. The gradation of urgency is a legal obligation, not simply a matter of good practice.

"Nine months without a suspect, targeted by a complaint of child rape, even being questioned: if this is not considered a denial of justice, then the word has lost its meaning."

Can an abnormally long delay in processing a complaint be considered a denial of justice?
Yes. Denial of justice is not limited to a formal refusal to try a case; case law includes prolonged inaction, inertia, and unreasonable delays that deprive litigants of the effectiveness of their rights. This is, moreover, the interpretation required by Article 6 § 1 of the ECHR, from the perspective of the reasonable time requirement, combined with Article 13 on the right to an effective remedy. Nine months without a suspect, the subject of a detailed complaint of child rape, even being heard: if this is not considered a denial of justice, then the word has lost its meaning, and the duty of judicial protection, its substance.

Was there a lack of human, material or organizational resources in the handling of this case?
Public evidence points to this conclusion. The prosecutor's office directly concerned had vacancies reported as early as April 2025 within the parliamentary precinct, including, and the details are damning, that of a magistrate assigned to the protection of minors. However, we cannot simply rely on a numbers game. The problem is not merely the inadequacy of resources; it is their failure to be prioritized. The Minister of Justice himself maintained that he had lacked "neither resources nor laws," but that the priority given to rapes of minors had been neglected. This admission, which he believes exonerates him, is in reality baffling: to acknowledge that one knew and prioritized children after everything else is to point to a design flaw, not an inevitable management failure.

Can the lack of resources in the justice system legally explain, or even excuse, a delay in processing a serious complaint?
He explains it; he never excuses it. This is a constant principle, both of the Court of Cassation and the European Court of Human Rights: the State cannot use its own structural deficiencies—chronic overcrowding, staff shortages, budgetary inadequacy—to evade its obligation to deliver justice within a reasonable timeframe. Shortages are not a case of force majeure that falls from the sky; they are the product of political and budgetary choices, and these choices are attributable to the State. Thus, the lack of resources, far from mitigating responsibility, constitutes its very foundation: it transforms an individual failing into a systemic fault. When the Head of State declares that he does not want to hear the "argument of resources," he commits, in my opinion, a legal misinterpretation: it is precisely this argument, turned on its head, that overwhelms the State, because the lack of resources is its fault, not its alibi.

Can the administrative investigation entrusted to the inspectors lead to real sanctions, or only to an internal report?
The General Inspectorate of Justice is not a court and does not impose sanctions: it prepares a report, makes findings, and formulates recommendations. This report, however, is not an end in itself; it is a beginning. It can serve as the basis for initiating disciplinary proceedings before the High Council of the Judiciary for judges, or for proceedings before the Minister of Justice, upon the advice of the High Council of the Judiciary, for public prosecutors. The real risk, and this is the legitimate fear of families, is that the report will become a disguised dismissal: that an investigation will be launched only to be buried. Citizen and media vigilance hinges precisely on this: between the findings and the sanction, in that space where outrage usually dies.

Can judges be personally sanctioned in this type of case? If so, under what circumstances?
From a disciplinary standpoint, yes. Article 43 of the statutory ordinance of December 22, 1958, defines misconduct as any breach of the duties of a magistrate, of honor, of integrity, or of dignity. Gross negligence in handling such a sensitive case is likely to fall under this definition. However, a safeguard protects judicial acts: since the organic law of July 22, 2010, disciplinary misconduct cannot arise from the content of a court decision, except in cases of serious and deliberate violation of a procedural rule guaranteeing the rights of the parties, as established by a final ruling. The distinction here is crucial: the magistrate is not criticized for what they have judged, but for what they have failed to do—the inaction, the abstention, the neglect of the case. It is on this ground of deficiency, and not of judicial assessment, that personal liability can, exceptionally, prevail.

Why is it so difficult in France to directly challenge the individual responsibility of a magistrate?
Because our legal system has made a fundamental choice: to protect the independence of the judge by placing the State between the judge and the individual seeking justice. The judge's personal civil liability, based on their own misconduct, can only be pursued through the State's right of recourse, after the State has compensated the victim (Articles L. 141-2 and L. 141-3 of the Code of Judicial Organization, Article 11-1 of the 1958 Ordinance). However, this right of recourse is, in practice, a mere formality: the State, which should seek redress from its own agents at fault, virtually never does so. The individual thus faces a double layer of protection: the State's shield, which prevents them from taking direct action, and the State's inaction, which fails to exercise the right of recourse it has reserved for itself. Independence, a fundamental guarantee, ultimately produces a de facto irresponsibility, which was never the intention of the constituent.

What reforms would be necessary to prevent complaints of sexual violence against minors from going unanswered?
I won't be so naive as to propose yet another law: we already have plenty of those. Instead, I would outline a few structural requirements. First, a binding and traceable prioritization of the handling of complaints of sexual violence against minors, with a strict deadline for hearing the accused and automatic alerts if it is exceeded. Second, the effective interconnection of reports and databases, so that no one already targeted can remain undetected. Then, a protected budget for child protection, exempt from annual budget allocations. Finally, the implementation of the eighty-two recommendations of the Interministerial Committee for the Protection of Minors (CIIVISE), and a reform of the recourse action so that it ceases to be merely theoretical. Everything else, the symbolic increase in sentences for "serial rapists" that is already being discussed, is simply a matter of emotional penology: the punishment of the perpetrator is being made harsher to avoid having to address the failings of the institution.

"A Republic that knows how to protect its procedures better than its children has reversed the order of its duties."

Can this case influence case law on state responsibility for the protection of minor victims?
It can be done, and we must hope so. The path has been laid out by Strasbourg: the positive obligation of protection stemming from Article 3 of the Convention, already enshrined in the case of failures by child protection services, can permeate our domestic law and lower the threshold for proving fault in this area. One can imagine a judge establishing, for minors who are victims of sexual violence, a presumption of gross negligence based on prolonged inaction, or a more flexible interpretation of causation based on loss of opportunity. Major developments in the law of public liability have almost always arisen from a tragedy that the collective conscience could not bear. It is crucial, however, that the tragedy not be, once again, diluted by commemoration.

Ultimately, does this case reveal an isolated error or a systemic failure of the justice system in the face of sexual violence against minors?
A systemic failure, and I mean that. The isolated error is the convenient explanation, the one that allows for the punishment of an individual and the declaration of the institution as safe. But when the same person is reported for eight years without being investigated, when a complaint of child rape sits dormant for nine months for lack of a magistrate who should have handled it, it's not a minor issue: it's the mechanism itself that is flawed. A member of parliament put it with cruel accuracy: it's not the malfunction of the justice system, it's its ordinary functioning. That's what we must dare to confront. For years, our successive governments have preferred circulars to staffing levels, announcements to reform, outrage to expenditure. A Republic that knows how to protect its procedures better than its children has reversed the order of its responsibilities. Lyhanna didn't fall victim to a flaw in the justice system: she fell victim to its organized indifference. And this indifference now has a legal name. It is up to us to have her appointed by a judge.