French criminal procedure

During the investigation phase, various powers are available to assist, such as: garde à vue (remand in custody); arrest, search, and others, all laid out in specific sections of the code.

In France, the term criminal procedure (French: procédure pénale) has two meanings; a narrow one, referring to the process that happens during a criminal case as it proceeds through the phases of receiving and investigating a complaint, arresting suspects, and bringing them to trial, resulting in possible sentencing—and a broader meaning referring to the way the justice system is organized into the actors and institutions involved, chiefly the police, the prosecutors, the Public Ministry, the courts and judges, and their roles and interactions.

Under French criminal law, the penal code (CP) defines what acts (or omissions) are punishable.

Practically speaking, the main difference is that the Constitution specifies in article 34 that criminal procedure is part of the loi, and thus may not be handled by décrets but reserved to acts of Parliament, thus demonstrating the privileged status of criminal procedure within the French legal system, compared to civil law.

[4] French criminal procedure has roots in customary law under the Ancien regime under Louis XIV.

The main groups involved in the administration of criminal justice in France are the courts, the Public Ministry, and the judicial police.

[20] Adversarial systems, on the other hand, emphasize transparency, oral and written expression, placing the parties involved front and center in prosecuting or defending the case, with the judge limited to the role of a referee adjudicating points of law and ensuring fair play.

Late in the Fifth Republic, some additional protections for the rights of parties involved have added some aspects of the adversarial system to the mix.

[20] Sources of criminal procedure are primarily article 34 [fr] of the Constitution, and go back to the 1789 Declaration of the Rights of Man and of the Citizen.

Such cases had strict constraints, and had to be cocnsidered as binding by the people who applied them, be widely accepted in a particular profession, and had to be consistently used over a long period of time.

These principles embody the constitutional block and have been endorsed and extended by the European Court of Human Rights, and the June 2000 law amended the code of criminal procedure to increase guarantees of a fair trial, presumption of innocence, speedy proceedings, and the right to appeal.

[fr][24] This was strengthened in 2000 with additional legal limitations placed upon the freedom of the press in order to protect that presumption, as added to article 35 of the law of 1881 by the Guigou law [fr] of 15 June 2000,[25] and elevated to a principle of constitutional force (principe à valeur constitutionnelle) by the Constitutional Council in 1989.

For example, anyone who fails to demonstrate sufficient financial resources to support their standard of living and who resides with someone who engages in prostitution, is assumed to be a pimp according to article 255-6 of the penal code, unless they furnish proof to the contrary.

[20] A complaint (plainte) by a victim or a law enforcement official, or a denunciation (dénonciation) by a third party is the initial step in launching a criminal investigation.

[45] In this phase, the police make inquiries in order to determine if a crime has been committed, and attempt to find a suspect.

[48][49] Expedited and preliminary investigations share two features: they can take individuals into police custody for a period of 24 hours (renewable once; or four days for terrorism and drugs), and they are obliged to issue reports (procès-verbaux) to the public prosecutor, who will make the decision whether to carry on with the process.

There is an exception in terrorism cases which may permit search and seizure in preliminary investigations, and requires sign-off by a judge of a tribunal de grande instance.

[58] This principle of prosecutorial discretion in France is more similar to what is seen in common law countries, and is distinguished from what happens in Germany, Italy, and Spain, where the decision to continue or not is based on the particulars of the case and must go forward if the circumstances require it.

[57] For two centuries, prosecutors in France faced one of two choices: prosecute, or dismiss the charges (classement sans suite).

[63] The alternative disposition may be one of several possibilities, such as community service, payment of a fine to the national treasury, or enrolling in a treatment program.

The investigating judge may issue letters rogatory (commission rogatoire), order the seizure of necessary evidence, compel witnesses to appear and give evidence, and request expert testimony at an investigative hearing, the judge may have witnesses confront each other or the accused.

Public trials may not be recorded or filmed, but exceptions are made in cases of high importance such as that of Maurice Papon, convicted in 1998 of crimes against humanity during the Vichy regime of World War II.

[70] At the end of the session, the president of the trial notifies the parties of the date when the judgement of the court will be delivered.

[71][72] The accused has a right to a lawyer,[b] and certain parties are required to have one, including juveniles, and anyone with reduced mental capacity.

However, in 2001, this was held to be contrary to the European Convention on Human Rights, and since then, the attorney for the missing defendant must be heard by the court; this is known as défaut criminel.

With backlogs in court schedules causing delays, the Truche Commission recommended judicial reforms including adopting some aspects of the adversarial system of common law legal systems including the possibility to accept a reduced sentence for certain crimes in exchange for a guilty plea, however the proposal was rejected.

It was brought up again, and finally in 2004 a proposal was accepted for admitting a guilty plea for less serious crimes punishable by a fine or less than five years imprisonment.

A defendant's past criminal history may be considered not only at sentencing but also at trial to determine guilt or innocence.

[68][c] For certain major offenses, the court is provided with additional material on the personality, means, and family situation of the defendant, per article 81 of the code of criminal procedure.

Police are obliged to issue reports (procès-verbaux) to the public prosecutor, who will make the decision whether to carry on with the process.