Explanatory Statement
LexInter | March 7, 2004 | 0 Comments

Explanatory Statement

Administration.

Ladies and gentlemen,

This bill continues and completes the effort to modernize criminal justice initiated by the law of 9 September 2002 on orientation and programming for justice, so that the judicial institution is able to cope with new manifestations. delinquency and criminality in our society today.

In addition to the transitional and applicable provisions of the law overseas, which appear in Title III, this project is divided into two titles of equal importance. The first, of a thematic nature, includes provisions strengthening the effectiveness of our penal law and our penal procedure vis-à-vis certain specific forms of delinquency or criminality. Title II brings, in a transversal way, to the different phases of our criminal proceedings, modifications of a general nature intended to reinforce the coherence and the effectiveness of the applicable rules, under conditions guaranteeing the full conformity of our law with the international commitments of France.

TITLE I st .- PROVISIONS ON COMBATING CRIME AND FORMS NEW CRIME

The provisions of this title successively deal with crime and organized crime (Chapter I st ), crime and international crime (Chapter II), violations in economic and financial matters, public health or marine pollution ( chapter III) and finally certain forms of discrimination (chapter IV).

Chapter I st .- Provisions concerning the fight against crime and organized crime

Strengthening the fight against modern forms of delinquency or organized crime, which very often involve genuine and particularly dangerous mafia networks, and whose dismantling must be a priority for the public authorities, requires in-depth changes to both provisions of criminal procedure and criminal law provisions.

Criminal procedural provisions enhancing the efficiency of procedures relating to delinquency and organized crime

The main purpose of the law is to create in the code of criminal procedure a specific title relating to the procedure applicable to so-called “delinquency and organized crime” offenses, which are the subject of a double definition.

The most serious forms of crime and organized delinquency are defined by a new article 706-73 and mainly concern attacks on the person, such as murder in an organized gang, torture and barbaric acts in an organized gang, trafficking drugs, kidnappings and forcible confinements, procuring or trafficking in human beings, acts of terrorism or criminal associations with a view to committing these offenses.

A second definition, which appears in article 706-74, concerns other offenses aggravated by the circumstance of an organized gang as well as the classic forms of criminal associations.

For these various offenses, new procedural rules concerning the competence of specialized courts or the applicable means of investigation have been introduced.

* Institution of specialized courts

Articles 706-75 to 706-79 provide, as has already been done in the field of public health, for the creation of specialized inter-regional courts to hear procedures relating to the offenses of delinquency or organized crime defined above, to the exception of acts of terrorism, which will continue to fall under the jurisdiction of the Paris tribunal de grande instance.

These courts will have concurrent jurisdiction with that of the normally competent courts, which may be implemented by the public prosecutor, including following a relinquishment procedure, when the complexity of the facts justifies it.

The seat of these jurisdictions and their jurisdiction will be determined by decree, and the Government will be able, on five to ten sites, to best allocate resources (specialized assistants, IT and criminal analysis resources, specialized magistrates, etc.) , depending in particular on the organizational arrangements of the judicial police investigation services.

* Establishment of specific procedural rules

Articles 706-80 et seq. Of the Code of Criminal Procedure enact specific rules concerning surveillance, infiltration, the possibility of prolonging police custody up to 4 days, night searches, telephone tapping during the initial investigation, the extension of pre-trial detention by video conference, and the freezing of assets. These rules, some of which were already provided for by our law, but only for certain offenses – such as drug trafficking or acts of terrorism – will be applicable to all the offenses referred to in article 706-73, and some of between them will be applicable to the infringements of article 706-74.

For the entire field of organized crime, article 706-80 extends the rules relating to surveillance, while giving national jurisdiction to the judicial police officers who carry out these operations, as soon as they inform the district Attorney.

For the incriminations of article 706-73 only, articles 706-81 and following define the possibility of resorting to infiltration techniques, the principle of which is referred to in numerous international legal instruments, and which allow, within a strictly regulated, a judicial police officer to carry out a certain number of acts exhaustively listed by article 706-82 (use of an assumed identity, supply of means, transport of illicit products, etc.) in order to facilitate the disclosure of offenses, without provoking them, and thus benefit from criminal immunity for the acts concerned.

Article 706-88 provides for the possibility of extending police custody twice for a period of 24 hours, for the most serious forms of delinquency or organized crime falling under article 706-73. Extra time will be ordered by the judge of freedoms and detention or the investigating judge, the person can again speak with a lawyer in the 48 th and the 72 th time of measurement -after received either two interviews, the first in the first hour of custody, according to the common law or a single interview to the 36 thtime, in accordance with paragraph 7, unchanged, of article 63-4. However, these provisions are not applicable to acts of terrorism and drug trafficking offenses, which retain their specific custody rules.

The main purpose of Articles 706-89 to 706-95 is to extend the possibilities of night searches for investigation or instruction for the most serious forms of delinquency and organized crime within the scope of Article 706-73. , by drawing inspiration from articles 706-24 and 706-24-1 relating to the fight against terrorism, and under conditions which fully respect the constitutional requirements.

Article 706-96 provides for the possibility of resorting to a brief telephone interception during the investigation for the most serious organized crime offenses, with the authorization of the judge of freedoms and detention.

Article 706-97 allows dangerous detainees, particularly in the event of a risk of escape, to extend their pre-trial detention using video-conferencing methods.

Finally, in order to guarantee the imposition of property sanctions, the effectiveness of which in the fight against organized crime deserves to be reinforced, article 706-98 defines a specific procedure inspired by the framework adopted by the law of November 15, 2001 in in matters of seizure of terrorist assets, by appealing to the judge of freedoms and detention at the seat of the competent court which, for the execution of precautionary measures, enjoys national jurisdiction.

* Preservation and strengthening of the rights of the defense

The application of the rules of investigation reinforced within the framework of the fight against delinquency and organized crime, in return justified certain adjustments of our procedure, in a concern of balance, so that the rights of the defense are preserved.

Thus, when the new provisions have been applied during the investigation, it is expected that the person who has been placed in police custody and who has not been prosecuted within six month may question the public prosecutor on the rest of the procedure; if the public prosecutor decides to continue the investigation, he will be required to inform the person within two months, who will then be able to have the file of the proceedings consulted by his lawyer (article 706-100).

It is also provided that if the public prosecutor plans to resort to the immediate appearance procedure after having made use, during the investigation, of the new investigative rules, such as for example telephone tapping, the defendant’s lawyer may intervene before the public prosecutor before he has made his decision to seize the criminal court, to convince him to open an investigation due to the complexity of the facts (first paragraph of article 706-101).

Finally, in the event that the court is seized by the immediate appearance procedure, the defendant’s lawyer may request a period of two months, and not two weeks, to prepare his defense (second paragraph of article 706-101 ).

Criminal law provisions strengthening the repression of delinquency and organized crime

Three sets of changes are made to criminal law provisions in order to improve the fight against delinquency and organized crime.

First, the list of offenses for which the circumstance of an organized gang must be provided for in order to aggravate the penalties incurred and to allow the application to these offenses of all or part of the specific procedural rules set out above is completed. This concerns murder – with the creation of a new offense punishing the fact of engaging a person to commit murder – acts of torture and barbarism, the corruption of minors, the dissemination of pornographic images, evasion, offenses relating to arms trafficking. Certain sanctions are increased, the additional penalty of general confiscation being thus extended for the offense of “drug procuring”, for the association of criminals and for the procuring of the

Second, the provisions relating to repentance, which have existed for more than twenty years in our criminal law but which are little applied in practice, are both clarified and extended.

A new article 132-78 of the penal code lays down the principle either of an exemption from penalty or of a reduction of penalty for persons making it possible to avoid the commission of an offense, to put an end to an offense, to avoid damage or identify the perpetrators; as in the past, exemption from punishment obviously presupposes that the person has simply attempted to commit the offense before cooperating with investigators. As the security of the repentants and their families must obviously be guaranteed, it is in particular provided that, if necessary, they may be granted an assumed identity. Finally, the principle according to which the declarations of a repentant cannot by themselves justify a conviction is clearly affirmed by the law.

The provisions on repentance are obviously only applicable for certain particularly serious offenses, the list of which is however extensive. Thus, to the cases already provided for, such as drug trafficking and acts of terrorism, are added the hypotheses of poisoning, murder, torture and acts of barbarism, kidnapping and kidnapping, hijacking, human trafficking. human beings, pimping, organized gang theft, organized gang extortion and arms trafficking.

Finally, a new offense is created punishable by five years imprisonment the fact, by a person who, by reason of his functions, has knowledge, in application of the rules of the code of criminal procedure, of information resulting from an investigation or of an instruction (such as in particular a magistrate, a lawyer or an investigator), to reveal this information to certain people when this revelation is likely to hinder the progress of the investigations, for example by warning an accomplice that he is wanted by the police, allowing him to flee or remove evidence.

Currently, in fact, such facts are only indirectly and insufficiently punished for breach of professional secrecy.

Chapter II.- Provisions concerning the fight against delinquency and international crime

Chapter II of the bill improves the provisions relating to international assistance.

To this end, it notably introduces into the Code of Criminal Procedure the provisions necessary for the implementation of the Convention of 29 May 2000 on mutual legal assistance in criminal matters between the Member States of the European Union as well as of the decision establishing Eurojust of 28 February 2002.

To this end, it completely rewrites, in Book Four of the Code of Criminal Procedure, Title X relating to international legal assistance, which now distinguishes, in two chapters, two mutual assistance regimes: the first, of general scope, concerns mutual criminal assistance with any State; the second is specific to mutual aid with the States of the European Union.

General provisions

The provisions of this chapter clarify and simplify the conditions for the transmission (articles 694 and 694-1) and execution (articles 694-2 and 694-3) of international letters rogatory, while preserving the fundamental interests of France by consecration of the “safeguard clause” (article 694-4).

Provisions specify the conditions for the execution of certain requests, in particular to allow the use of video-conferencing and the use of infiltration (articles 694-5 to 694-9).

Mutual assistance with the States of the European Union

The provisions applicable to mutual assistance with the Member States of the European Union – which it is possible to extend to non-member States where appropriate (article 695-10) – provide for enhanced and more effective cooperation (article 695 and following).

In particular, article 695-2 relates to joint investigation teams established by article 13 of the agreement of May 29, 2000 and gives foreign agents seconded to France judicial police powers similar to those of an official. judicial police, and national jurisdiction.

In addition, articles 695-4 et seq. Define the nature, missions and powers of the Eurojust unit in accordance with articles 2 and 3 of the Decision of 28 February 2002: body of the European Union, it is responsible for promoting and to improve coordination and cooperation between the competent authorities of the Member States in all investigations and prosecutions falling within its competence.

Finally, articles 695-8 and 695-9 specify the status and powers of the “national representative” of the Eurojust unit.

Chapter III.- Provisions concerning the fight against offenses in economic, financial and customs matters and in matters of public health and maritime pollution

Provisions relating to economic and financial offenses

The provisions relating to courts specializing in economic and financial matters existing since 1975 within the jurisdiction of each court of appeal have been improved on four points: the list of offenses falling within their jurisdiction is extended; it is created, for the most complex cases, of jurisdictions with inter-regional jurisdiction, whose jurisdiction will cover several courts of appeal, as is the case for the new jurisdictions specializing in delinquency and organized crime; the mechanism for relinquishing common law jurisdictions in favor of specialized jurisdictions is clarified; the status of specialized assistants intended to assist the magistrates of these jurisdictions is improved.

Provisions relating to public health offenses

In order to strengthen their efficiency, the system of jurisdictions specializing in health matters is aligned with that of jurisdictions specializing in economic and financial matters, in particular with regard to the rules on relinquishment and the functions of specialized assistant.

Provisions relating to offenses relating to pollution of maritime waters by discharges from ships

Two series of changes have been made in order to better fight against polluting discharges from ships, which constitute a particularly serious and dramatic form of environmental damage, due both to the nature of the behaviors that are at the origin of it and to the extent of their consequences on the environmental and economic balance.

First, the provisions relating to the specialized maritime littoral courts, created by the law of 3 May 2001 and provided for in article L. 218-29 of the environment code, are inserted in the code of criminal procedure, with a regime similar to that, improved, of the courts specialized in organized crime, economic or public health, in particular as regards the rules of relinquishment.

The material jurisdiction of the specialized maritime littoral courts is also extended to all maritime pollution provided for by the environment code.

The geographical jurisdiction of these specialized courts, which currently only concerns pollution committed in territorial and internal waters, is extended to offenses committed in the French exclusive economic zone.

Secondly, the provisions of the Environmental Code relating to the repression of polluting discharges from ships are amended in order to increase, both with regard to natural persons and legal persons, the penalties incurred in the event of such committing. offenses.

Provisions relating to customs offenses

Finally, various changes have been made to both the Criminal Procedure Code and the Customs Code in order to improve the search and observation of customs offenses. In particular, the powers of customs officers empowered to carry out judicial inquiries provided for in article 28-1 of the Code of Criminal Procedure are extended.

Chapter IV.- Provisions concerning the fight against discrimination

Acts of racism constitute intolerable behavior in a society which respects the fundamental principles guaranteeing equal dignity among all human beings, and they must be combated with the greatest firmness.

Two series of changes must be made to the existing legislative arsenal in this area, these changes appearing all the more necessary as the current international context is unfortunately likely to give rise to an increase in manifestations of racism.

Provisions aggravating the repression of discrimination and attacks on persons or property of a racist nature

The aggravating circumstance of racism created by the law of 3 February 2003 aimed at increasing the penalties for offenses of a racist, anti-Semitic or xenophobic nature is extended to new offenses, such as threats, theft and extortion, thus strengthening consistency of the system provided for by this law.

It should be noted that Title III of the draft provides for the overseas applicability of this law.

The penalties for offenses of discrimination are increased, and an aggravating circumstance is introduced in the case of a place open to the public, such as discotheques.

Provisions simplifying the repression of racist or xenophobic messages

The prosecution and repression of the offenses of incitement to hatred, racial discrimination and violence, racist defamation and abuse and revisionism provided for in the 1881 Press Freedom Act are too often hampered because of the brevity of the three-month prescription provided for by this law.

This is why it is proposed, for these various offenses, to increase the period of limitation to one year.

TITLE II – PROVISIONS RELATING TO PUBLIC ACTION, INQUIRIES, INVESTIGATION, JUDGMENT AND THE APPLICATION OF SENTENCES

The provisions of this title improve the rules of criminal procedure applicable to the various stages of the proceedings, which concern public policy (Chapter I st ), surveys (Chapter II), education (Chapter III), judgment ( chapter IV) and the application of penalties (chapter V).

Many of these provisions provide clarifications and simplifications made necessary by the accumulation of legislative reforms in recent years, in order to strengthen the balanced character and efficiency of the procedure.

Chapter I st .- Provisions relating to public action

General provisions ensuring the coherence and effectiveness of criminal justice

The role of the Minister of Justice is enshrined in law, by a new article 30 of the Code of Criminal Procedure providing that the Minister of Justice ensures the consistency of the application of the criminal law throughout the territory of the Republic.

The role of public prosecutors in matters of penal policy is likewise enshrined. Article 35 of the Code of Criminal Procedure is thus rewritten in order to specify that the Attorney General ensures the proper functioning of the public prosecutors under his jurisdiction, that he leads and coordinates the action of public prosecutors as well as the conduct of various policies. public and that an annual report be sent on the activity and management of the prosecution services as well as on the application of the law.

A new article 40-1 translates into the code of criminal procedure the principle of systematic judicial response , clarifying the traditional principle of the opportunity of prosecution which is also enshrined in law. When the facts are established and the perpetrator identified, the public prosecutor will thus have to assess the advisability, either of initiating criminal proceedings, or of implementing an alternative procedure to prosecution (by resorting, if necessary, to the most simple among them, namely the reminder of the law), and he will be able to dismiss the procedure only if he considers that specific circumstances related to the commission of the facts justify it.

The new article 40-2 specifies the current rules on information for victims: the classification opinion must therefore be motivated but this obligation only concerns cases in which the perpetrator is identified, which is the most common practice. currently. Investigators, for their part, must advise the victim that in the event of a lack of clarification, his case will be closed. Public authorities, including mayors who have reported offenses to the prosecution, must also be informed.

In this regard, a new article L. 2211-2 of the general code of local authorities will be reminded of the reporting obligation which currently weighs on mayors as well as the new information obligation which in return weighs on the prosecution services and finally the possibility for the prosecution to communicate on current cases.

Provisions relating to criminal composition and other alternatives to prosecution

Article 41-1 is supplemented in order to establish the principle according to which in the event of failure of an alternative measure to the prosecution provided for by this article, the prosecution must either prosecute or implement a criminal composition, unless there is a new element, this provision being the consequence of the rule laid down by the new article 40-1.

The improvement of the penal composition procedure, started by the law of September 9, 2002, is being continued. This procedure is extended to all offenses punishable by five years’ imprisonment at most and to all fifth class contraventions. The measures proposed are, in particular in the correctional area, more numerous than in the past (notably addition of the follow-up measure for an internship or training, and obligations not to issue checks, not to appear in the or the places where the offense was committed, not to meet or receive the victim (s) or the co-perpetrator (s) and not to leave the national territory). It is specified that in the event of failure of the penal composition the public prosecutor’s office must, except for new element, set in motion the public action.

Chapter II.- Provisions relating to inquiries

Numerous improvements have been made to the rules concerning the conduct of flagrante delicto investigations or preliminary investigations to make them more efficient.

Provisions concerning the lodging of a complaint, the duration or the subject of the investigations

Article 15-3 of the Code of Criminal Procedure is supplemented in order to clarify the right of victims to have a copy of their complaint from the investigators and the conditions under which they are informed of discontinuances.

Article 53 is amended to provide for an extension from eight to fifteen days of the duration of the investigation of flagrante delicto for crimes and misdemeanors falling under articles 706-73 and 706-74 of the Code of Criminal Procedure, namely the most serious offenses of criminality and organized delinquency. The condition, which enshrines and specifies case law, that the investigation must continue uninterrupted is also enshrined in the law.

The scope of the procedure for investigating the causes of death in Article 74 is extended to the case of discovery of a seriously injured person, when the person is for example in a coma, or has amnesia after having been injured by a cause. unknown, this provision filling a legal gap denounced by practitioners.

Provisions concerning searches and requisitions

Section 56 is supplemented to ensure the presence of witnesses during a search.

The right of investigators to issue judicial requisitions is enshrined and clarified during the flagrance investigation (article 60-3) and the preliminary investigation (article 77-1-2).

Provisions relating to persons summoned, wanted or held in police custody during the investigation

The most important provisions of this section are those which modify article 63-4 in order to strengthen the consistency of the provisions relating to the intervention of the lawyer in police custody, which will henceforth take place at the start of police custody. and at the start of extra time. Indeed, currently, the lawyer can go back to the 20 th  hour, but must then, if extended, wait sixteen hours is the twelfth hour of the extension of the custody, to meet with the person, which in practice leads to both less effective investigations and a weakening of the role of defense. It is therefore preferable that the lawyer intervenes at the start of the extension,

In addition, the arrest warrant of the public prosecutor, which has fallen into disuse, is replaced by a search warrant which may be issued during an investigation relating to a flagrant crime or a flagrant offense punishable by at least three years of imprisonment against any person against whom there is one or more plausible reasons to suspect that he has committed or attempted to commit the offense. This search warrant will allow the person to be placed in police custody, not only by investigators already seized of the facts but also by the judicial police officer of the place of the discovery of the person concerned. The issuance of a search warrant in preliminary investigation may be done by the liberty and detention judge.

Chapter III.- Provisions relating to the investigation

These very numerous provisions reinforce the coherence and efficiency of the preparatory investigation, which constitutes an essential phase of criminal proceedings, while simplifying its conduct as much as possible.

Victims’ rights provisions

The obligation of the examining magistrate to notify the civil party every six months is limited to the only cases in which it is justified, namely in criminal matters or in the case of an offense against people, this information being able, if necessary, to be obtained through an association bringing together several victims of a collective accident.

An article 91-1 is created extending during the investigation for crimes and misdemeanors against persons, the provisions of articles 375-1 and 422 which respectively provide for the assize court and the criminal court. that the civil parties can be granted compensation as is the case for witnesses.

The interests of victims in the event of the release of the Charged Person or his placement under judicial supervision is taken into account, in accordance with the European Union framework decision of 15 March 2001 on the status of victims in the framework of criminal proceedings.

It is first of all provided that the victim must be informed when the person under examination is subjected, within the framework of a judicial control, to the prohibition to receive, to meet or to enter into relation with the victim.

It is also provided that before any release decision the court seised must take into account the interests of the victim with regard to the consequences for the latter of this decision. If there is a risk of pressure on the victim, the court will then have to place the indicted person under judicial supervision by subjecting him to a ban on receiving or meeting the victim or entering into contact with him.

Finally, the provisions on the constitution of security interests in favor of victims are clarified within the framework of a judicial review.

Provisions relating to witnesses and assisted witnesses

The main purpose of these provisions is to simplify and strengthen the consistency of the rules relating to assisted witnesses in order to encourage recourse to this procedure, which has the advantage of avoiding unjustified or hasty indictments.

Essentially, the conditions for indictment by the examining magistrate of a person having benefited from the status of assisted witness are facilitated. In addition, the rights of the assisted witness, in particular as regards requests for annulment, are increased, the rules relating to the period of admissibility of these requests being in return made opposable to him.

Mandate provisions

In general, the provisions of this section strengthen the consistency and effectiveness of the rules relating to warrants issued by the investigating judge – or by other courts – which meets the objectives that led to the creation of a central office specializing in the search for people on the run.

In particular, provision is made for the creation for the investigation of the search warrant, which is less formal than the arrest and arrest warrants, since it allows the placement in police custody – and therefore the hearing by the investigators – of the person discovered. .

In addition, a period of 24 hours is, in general, given to investigators who have arrested a person on a warrant of arrest or arrest to present him to the examining magistrate or the public prosecutor, in order to ” prevent the person arrested during the night from having to be imprisoned in a remand center: such a time limit is already provided, but only in certain cases. If the arrested person is detained by the police before his presentation before the magistrate, the latter must be immediately informed and he will have the right to have his relatives informed and to be examined by a doctor, which is not provided for in the current texts. . In return, the possibility of imprisoning the person in a remand center for 24 hours before his presentation before a magistrate is removed.

The fate of the various warrants following the information is also regulated, as is the conduct to be taken when a person is arrested on an arrest or search warrant after the information has been settled, in order to clarify and to simplify the current law, which is both insufficiently precise and particularly complex.

The conditions for distributing warrants to the wanted persons file are also specified.

Finally, the particularly archaic rules relating to the arrest order applicable in criminal matters are deleted: their usefulness since the law of June 15, 2000 instituting an appeal in criminal matters and removing the obligation for the free accused to constitute himself prisoner before the Assize Court had in fact disappeared, and they were a source of difficulties in practice. These provisions are thus replaced by the rules relating to arrest warrants or committal warrants applicable in correctional matters.

Provisions relating to letters rogatory

Several improvements are made to the rules on letters rogatory, in particular to facilitate the transport of the examining magistrate to the place of execution of a letter rogatory, to remove the obligation to take an oath concerning persons held in police custody during ‘a rogatory commission, and to allow the examining magistrate to have the person brought before the end of police custody without having to issue a warrant against him.

Provisions concerning expertise

The provisions of the draft aim to simplify the particularly complex and formalistic rules, allowing a party to be heard by an expert, to facilitate the communication of expert opinions to investigators and to clarify the provisions on the notification of expert opinions.

Provisions concerning the investigative chamber and its president

The role of the investigating chamber and its president, which is essential in the conduct of criminal proceedings and in particular of investigations, has been improved on various points, and more particularly on the following points:

– the power of the president of the investigating chamber to filter appeals is extended;

– in the event of additional information, the president of the investigating chamber may himself issue warrants or order the person’s provisional imprisonment for four working days, in order to await the chamber’s meeting;

– the investigating chamber may proceed to partial evocations, which responds to an old and repeated request from practitioners;

– the very complex question of the reservation of detention disputes when the investigating chamber decides to detain or maintain the person under investigation is both clarified and simplified.

Miscellaneous

The bill makes numerous other changes concerning the investigative procedure, some of which respond to suggestions made in the annual reports of the Court of Cassation, among which it is worth mentioning:

– the clarification of the procedures for appointing a lawyer during the investigation;

– the action to be taken in the event of substitution during the procedure of a criminal qualification for a correctional qualification;

– the possibility of appointing as judge of freedoms and detention, in the event of the incapacity of the first vice-president or of the normally appointed vice-president, any judge of the bench, which will make it possible to avoid the difficulties related to incompatibilities in the small jurisdictions;

– reduction from six to four months of the time limit for the parties to raise nullities;

– the consecration in the law of the practice of judicial correctionalization: if the parties do not contest it at the time of the settlement -possibility which is now offered to them- it can in principle no longer be contested before the correctional court or, by way of consequence, before the Court of Appeal or the Court of Cassation.

Chapter IV.- Provisions relating to the judgment

The bill improves the procedure for judging misdemeanors as well as that of crimes, and it also improves certain rules concerning the functioning of the Court of Cassation.

Provisions concerning the trial of misdemeanors

* The procedures for immediate appearance and summons by report are first of all improved on various points: the cases in which a social inquiry is compulsory are extended; competence is given to the judge of freedoms and detention, already competent in matters of immediate appearance, to order a judicial review in the event of a summons by report; a bridge is established between the immediate appearance and the summons by report when the judge of freedoms does not place the person in pre-trial detention, but places him under judicial control; the rights of the defense are increased, the law expressly specifying that the lawyer can request acts from the court.

* The most important and innovative provisions of this section are those which create a new procedure, known as “  appearance on prior admission of guilt  ”, inspired by Anglo-Saxon “plead guilty” procedures.

This procedure, provided for by articles 495-6 et seq. Of the Code of Criminal Procedure, will allow the public prosecutor before whom a person will be brought who acknowledges having committed an offense punishable by up to five years’ imprisonment, to offer him a or more sentences, including a term of imprisonment. If agreed, the proposed sentence or sentences will be approved by the president of the court, without the need to proceed to a hearing before the criminal court.

This procedure will fully respect the rights of the defense since:

– the person’s consent can only be received in the presence of their lawyer;

– the person will appear before the president of the court seized of a request for homologation, either in public hearing or, if he so requests, in council chamber;

– the person may request a period of ten days before making his response known, during which time the judge of freedoms and detention may, at the request of the public prosecutor, place him under judicial control or, exceptionally, in pre-trial detention;

– the decision of homologation by the president of the tribunal, although executory immediately, may be appealed within ten days: the person may therefore change their mind after the fact;

– the approval decision will be made public;

– the “possible” sentences will be lower than those likely to be pronounced by the court: the prison sentence cannot exceed six months, the fine penalty cannot exceed half of the fine incurred; the prison sentence may be offered with a suspended sentence, or with other modalities of accommodation, such as day parole;

– this procedure will not be applicable to minors, nor in matters of press offenses, offenses of manslaughter, political offenses or offenses for which the prosecution procedure is provided for by a special law.

The rights of the victim will be fully safeguarded, since either she will appear with the accused before the president of the court for an immediate ruling on her claims for compensation, or she will subsequently be entitled to a public trial on the civil action, at the diligence of the prosecution.

This procedure may also be carried out at the request of the accused or his lawyer, including in the event of a direct summons or summons by a judicial police officer.

* The other most prominent provisions of the bill in matters of judgment of offenses concern the question of the trial of an accused in his absence , for which France has been condemned on several occasions by the European Court of Human Rights which considers that such judgments do not comply with the requirement of a fair trial within the meaning of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Our law currently allows such judgments, which are either rendered by default, when the accused was not informed of the date of the hearing, or “contradictory to be served” judgments otherwise.

To meet the conventional requirements, four sets of modifications should be made.

First, article 411 of the Code of Criminal Procedure should be amended in order to generalize the possibility for the defendant absent from the proceedings to be represented by a lawyer, by giving him an express mandate in this sense, like the Court of Justice. cassation has already recognized this, whatever the amount of the penalty incurred. If the lawyer intervenes with a written mandate from the accused, the judgment will be fully contradictory. Otherwise, the lawyer who appears at the hearing must be heard, and the judgment rendered will be contradictory to be served. Obviously, if the court considers necessary the personal appearance of the accused – appearance which will remain the principle – it can order this appearance by referring the case.

Secondly, it is appropriate to prohibit the pronouncement of a fixed prison sentence by default, when the defendant absent and not represented or not defended by a lawyer was not even informed of the date of the hearing. In this case, the court may however pronounce a “search judgment”, which will result in the limitation of the sentence, while issuing an arrest warrant.

However, in order to allow, when necessary, the judgment by default of a fugitive, it is provided that the public prosecutor may request the appointment of an official lawyer to ensure the defense of the interests of this person, which will then allow his eventual conviction to a term of imprisonment.

Finally, in the event of a conviction by contradictory judgment to be served with a fixed prison sentence, the appeal period cannot run until the accused has been personally informed of the judgment: currently such a judgment is final for ten days. after its service, whatever the mode, and in particular in the event of service at the public prosecutor’s office, town hall or at home, of which the accused may not be aware.

* Other simplifying changes are made to the judgment of offenses:

–  hearings concerning only civil interests will fall under the competence of the single judge;

– the provisions of article 706-71 relating to the use of telecommunication means will be applicable during the hearing for the hearing of witnesses or experts;

– the president of the correctional appeals chamber may himself reject certain inadmissible appeals, or note the appellant’s withdrawal;

– the field of criminal order procedure created in tort matters by the law of September 9, 2002 for traffic offenses will be extended to offenses relating to the coordination of transport.

Provisions relating to the trial of crimes

In addition to a simplification in the procedure for drawing up the lists of jurors of assizes and an increase in the penalties incurred by defaulting jurors, the project provides for the possibility of an audiovisual recording of the hearing of the victim before the court of assizes. , only sound recording is currently possible.

The most important provisions are those which, in order to comply with the requirements of the European Convention on Human Rights, proceed to the abolition of the absentia procedure, it is true very archaic, by creating the possibility for an absent accused of ” be defended by a lawyer and for the Assize Court either to issue a search order against a fugitive defendant, or to judge him if a lawyer has been appointed to defend his interests, under conditions which are partly similar to those provided for in correctional matters.

Provisions concerning the Court of Cassation

Article 586 of the Code of Criminal Procedure is amended in order to remove the civil fine incurred by clerks provided for therein.

Article 612-1 is completed following a request made by the Cour de cassation in its latest annual reports so that, when it orders that in the interest of public order or good administration of justice the annulment that it pronounces will have effect with regard to the parties which have not provided themselves, these parties cannot be condemned to penalties higher than those pronounced by the court whose decision was annulled.

Article 626-5 is supplemented in order to provide a clarification concerning the detention of a person in the context of the review procedure, the current text resulting from the law of June 15, 2000 may indeed lead to the release of dangerous individuals when the re-examination of their conviction is ordered following a conviction pronounced, for an unfair trial, by the Strasbourg Court which wants the convicted person to be retried, which does not necessarily imply that he is released.

Chapter V. – Provisions relating to the application of penalties

Victims’ rights provisions

The bill first of all takes into account the interests of victims in the event of the release of a convicted person, in accordance with the framework decision of the European Union of March 15, 2001 relating to the status of victims within the framework of criminal procedures, which in particular presupposes the institution of a possibility of supervision of convicts released following reduced sentences.

The principle is thus established according to which, before taking any decision resulting in the temporary or definitive cessation of the imprisonment of a person sentenced to a custodial sentence before the expiry date of this sentence, the enforcement judge penalties or the regional parole jurisdiction must take into account the interests of the victim or the civil party with regard to the consequences for the latter of this decision.

If there is a risk that the convicted person may be in the presence of the victim or the civil party and such an encounter appears to have to be avoided, the court must prohibit the convicted person from receiving, meeting or entering into a relationship in any way. whether with the latter, and it must, with some exceptions, notify the victim.

A new article 721-2 has also been created which modifies the penalty reduction regime. The judge responsible for the application of sentences will thus be able to match the reductions in sentences (three months per year of imprisonment) and reductions in additional sentences (two months or one month in the event of legal recidivism per year of imprisonment) with certain obligations or prohibitions intended to prevent recidivism and to ensure the safety and rights of victims after the release of the convicted person. The duration of these obligations or prohibitions may not exceed the total of the reductions in sentences granted.

The sentence enforcement judge who will find that the convicted person has violated his obligations may order his re-incarceration for all or part of the duration of the reductions in sentences granted.

Provisions relating to the execution of custodial sentences

First of all, there is a simplification and clarification of the rules on the warrants issued by the judge responsible for the execution of sentences.

In addition, in order to limit extractions, jurisdiction is given to hear disputes relating to the execution of sentences, and in particular custodial sentences – such as requests for confusion of sentences – to the jurisdiction in whose jurisdiction the convicted person is detained.

Finally, the criminalization of the offense of escape is broadened, so that it is no longer necessary to provide proof of violence, break-in or corruption. The fact for a detainee to escape by all means from the custody to which he is subject will constitute escape, the penalties for which will moreover be aggravated.

Provisions relating to the recovery of fines

A procedure is instituted allowing the voluntary payment of the fine at the hearing, such as to avoid the difficulties linked to the recovery of fines, this voluntary payment giving rise to a 10% discount, without this reduction exceeding € 1,000 .

The procedure of constraint by body, partly contrary to the European Convention on Human Rights is replaced by a more jurisdictionalized procedure, known as “judicial constraint”.

Provisions relating to criminal records

Some changes have been made to the rules for issuing Criminal Records Bulletin No. 2, in order to ensure compliance with professional prohibitions resulting from criminal convictions, in particular for perpetrators of sexual offenses prohibited from working with children.

TITLE III.- TRANSITIONAL PROVISIONS

AND RELATING TO OVERSEAS

Chapter I st of this title provides for deferred application of the law in the first day of the fourth month following its publication in the Official Journal , for some of its provisions requiring prior notification of the courts. This chapter also includes several provisions of transitional law, made necessary by the modifications made to certain rules of our criminal procedure.

Chapter II of this title makes most of the provisions of this law applicable to New Caledonia, French Polynesia, the Wallis and Futuna Islands and Mayotte.

Only the provisions relating to the customs code (article 11 II, III and IV) were not extended because of the competences of the overseas communities in the matter.

This chapter II also extends numerous laws adopted in recent years that do not include overseas provisions, to allow the application of this project in the overseas communities:

– Law n ° 97-1159 of December 19, 1997 establishing placement under electronic surveillance as a means of executing custodial sentences;

– certain provisions of Law No. 2001-1168 of 11 December 2001 on urgent reform measures of an economic and financial nature;

– Law n ° 2002-3 of January 3, 2002 relating to the safety of transport infrastructures and systems;

– Law n ° 2002-1138 of 9 September 2002 on orientation and programming for justice;

– Law No. 2003-88 of February 3, 2003 aimed at increasing the penalties for offenses of a racist, anti-Semitic or xenophobic nature.

Finally, article 24 of the draft relating to the general code of local authorities, which is not applicable in French Polynesia, New Caledonia and Saint-Pierre-et-Miquelon, the third and last chapter of this title III transposes this provision in law n ° 77-1460 of December 29, 1977 for French Polynesia and in the code of the municipalities of New Caledonia and Saint Pierre and Miquelon.

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