settlement orders
LexInter | October 21, 2008 | 0 Comments

SETTLEMENT ORDERS

Articles 175 and s . of the Code of Criminal Procedure

As soon as the information appears to him to be complete, the examining magistrate communicates the file to the public prosecutor and at the same time notifies the parties and their lawyers either verbally with signature in the file, or by registered letter. When the person is detained, this opinion can also be notified by the head of the penitentiary establishment, who immediately sends the examining magistrate the original or the copy of the receipt signed by the person concerned.
The public prosecutor then has a period of one month if an indicted person is detained or three months in other cases to address his motivated requisitions to the examining magistrate. A copy of these requisitions is sent at the same time to the lawyers of the parties by registered letter.
The parties have the same period of one month or three months from the sending of the notice provided for in the first paragraph to send written observations to the examining magistrate, according to the modalities provided for by the penultimate paragraph of article 81. A copy of these observations is sent at the same time to the public prosecutor.
Within this same period of one month or three months, the parties may formulate requests or present requests on the basis of articles 81, ninth paragraph, 82-1, 156, first paragraph, and 173, third paragraph. At the end of this period, they are no longer admissible to formulate or present such requests or requests.
At the end of the one-month or three-month period, the public prosecutor and the parties have ten days if an indicted person is detained or one month in other cases to address to the examining magistrate for requisitions or additional observations in view of the observations or requisitions communicated to them.
At the end of the ten-day or one-month period provided for in the previous paragraph, the examining magistrate may issue his settlement order, including if he has not received any requisitions or observations in the the prescribed time limit.
The first, third and fifth paragraphs and, with regard to requests for nullity, the fourth paragraph of this article are also applicable to assisted witnesses.

Request for referral or indictment or declaration of dismissal

Article 175-1


The indicted person, the assisted witness or the civil party may, at the expiry of the period indicated to him in application of the eighth paragraph of article 116 or of the second paragraph of article 89-1 as of, respectively, from the date of the indictment, of the first hearing or of the constitution of civil party, ask the investigating judge, in accordance with the modalities provided for in the tenth paragraph of article 81, to pronounce the dismissal or the as an indictment before the trial court or to declare that there is no need to follow, including by proceeding, if necessary, to a severance. This request can also be made when no investigative act
Within one month of receiving this request, the examining magistrate grants it or declares, by reasoned order, that it is necessary to continue the investigation. In the first case, he proceeds according to the procedures provided for in this section. In the second case, or failing the judge to have ruled within one month, the charged person, the assisted witness or the civil party may apply to the president of the investigating chamber in application of article 207-1. This referral must take place within five days of the notification of the judge’s decision or the expiration of the one-month period.
When the examining magistrate has declared that he is continuing his investigation, a new request may be made after the expiration of a period of six months.
The provisions of this article do not apply after sending the notice provided for in the first paragraph of article 175.

Order for further information

Article 175-2

 In any matter, the duration of the investigation may not exceed a reasonable period of time given the seriousness of the facts alleged against the person under investigation, the complexity of the investigations necessary for the manifestation of the truth and the exercise of rights. of the defense.


If, at the end of a period of two years from the opening of the investigation, it has not been completed, the examining magistrate issues a reasoned order by reference to the criteria provided for in the previous paragraph, explaining the reasons for the length of the procedure, including the indications which justify further information and specifying the prospects for settlement. This order is communicated to the president of the investigating chamber who may, by request, seize this court in accordance with the provisions of article 221-1.
The ordinance provided for in the preceding paragraph must be renewed every six months.


Examination of charges and legal qualification

Article 176

The examining magistrate examines whether there are charges against the charged person constituting an offense, the legal qualification of which he determines.

Order of dismissal
Article 177

If the investigating judge considers that the facts do not constitute a crime, an offense or a contravention, or if the author has remained unknown, or if there are not sufficient charges against the person under investigation, he declares , by an ordinance, that there is no need to follow.
When the dismissal order is motivated by the existence of one of the causes of criminal irresponsibility provided for in the first paragraph of article 122-1, articles 122-2, 122-3, 122-4 , 122-5 and 122-7 of the penal code or by the death of the person under examination, it specifies whether there are sufficient charges establishing that the person concerned committed the acts with which he is accused.
Charged persons who are provisionally detained are released. The order terminates the judicial review.
The examining magistrate decides by the same ordinance on the restitution of the objects placed under judicial control. He can refuse restitution when it presents a danger to people or property. The decision relating to the restitution may be referred, by any person having an interest in it, to the investigating chamber under the conditions and according to the modalities provided for by article 99.

Publication of the dismissal decision or press release
Article 177-1

The investigating judge may order, at the request of the person concerned, or, with the agreement of this person, ex officio or at the request of the public prosecutor, either the full or partial publication of his decision of dismissal, or the insertion of a press release informing the public of the reasons and the mechanism thereof, in one or more newspapers, periodicals or electronic communication services to the public that it designates.
It determines, where applicable, the extracts from the decision that must be published or sets the terms of the press release to be inserted.
If the judge does not grant the request of the person concerned, he must issue a reasoned order, which may be appealed to the investigating chamber.

Conviction for the establishment of an abusive or dilatory civil party

Article 177-2

When he issues an order of non-suit following an open investigation on the constitution of a civil party, the investigating judge may, on requisitions of the public prosecutor and by reasoned decision, if he considers that the the constitution of civil party was abusive or dilatory, pronounce against the civil party a civil fine of which the amount may not exceed 15,000 euros.

This decision can only be made at the end of a period of twenty days from the communication to the civil party and his lawyer, by registered letter or by fax with receipt, of the requisitions of the public prosecutor, in order to to allow the person concerned to address written observations to the examining magistrate.

This decision may be appealed against by the civil party under the same conditions as the order of dismissal.

If the examining magistrate does not follow the requisitions of the public prosecutor, the latter may lodge an appeal under the same conditions.

Article 177-3

When the civil party is a legal person, the civil fine provided for in article 177-2 may be pronounced against his legal representative, if the latter’s bad faith is established.

Referral to the police court or to the local court

Article 178

  If the judge considers that the facts constitute a contravention, he orders, by order, the referral of the case to the police court or to the local court.
When it has become final, this order covers, if any, procedural flaws.

Referral to the criminal court

Article 179
If the judge considers that the facts constitute an offense, he pronounces, by order, the referral of the case to the criminal court. This order specifies, if necessary, that the accused benefits from the provisions of article 132-78 of the penal code.
The settlement order ends the pre-trial detention or judicial review. If issued, the arrest warrant remains enforceable; if they have been issued, the arrest or search warrants cease to be able to be executed, without prejudice to the possibility for the examining magistrate to issue an arrest warrant against the accused.
However, the investigating judge may, by separate order with specific reasons, keep the accused in detention or under judicial supervision until his appearance in court. The order for maintaining
pre-trial detention is based on reference to 2 °, 4 °, 5 ° and 6 ° of article 144. The defendant in detention is immediately released if the criminal court has not started to examine the merits at l expiry of a period of two months from the date of the order for reference.
However, if the hearing on the merits cannot be held before the expiry of this period, the court may, exceptionally, by a decision stating the reasons of fact or of law preventing the judgment of the case, order the extension of detention for a further period of two months. The personal appearance of the accused is of right if he or his lawyer so requests. This decision can be renewed once in the same forms. If the accused has still not been tried at the end of this new extension, he is immediately released.
When it has become final, the ordinance mentioned in the first paragraph covers, if any,

Declaration of change of address
Article 179-1

Any order returning the charged person to the local court, the police court or the criminal court informs the latter that he must notify the public prosecutor, until the final judgment of the case, of any change. of the address declared at the time of its indictment, by registered letter with acknowledgment of receipt. The order also informs him that any summons, notification or service made at the last declared address will be deemed to have been made in his person.


Transmission of the file to the public prosecutor

Article 180

In cases of referral, either to the local court, or to the police court, or to the criminal court, the examining magistrate sends the file with his order to the public prosecutor. The latter is required to send it without delay to the clerk of the court which must rule.
If the criminal court is seized, the public prosecutor must summon the accused for one of the next hearings, observing the time limits for summons provided for in this code.

Indictment before the Assize Court

Article 181

If the examining magistrate considers that the facts withheld from the indicted persons constitute an offense qualified as a crime by law, he shall order their indictment before the Assize Court.
He can also refer related offenses to this jurisdiction.
The order of indictment contains, under penalty of nullity, the statement and the legal qualification of the facts, object of the accusation, and specifies the identity of the accused. It also specifies, if necessary, that the accused benefits from the provisions of article 132-78 of the penal code.
When it has become final, the order of indictment covers, if any,
The judicial review of the accused continues to have effect.
The provisional detention or judicial review of persons returned for a related offense ends, unless the provisions of the third paragraph of article 179 are applied. The time limit provided for by the fourth paragraph of article 179 is then extended to six months.
If the accused is remanded in custody, the warrant of committal issued against him retains its enforceable force and the person concerned remains detained until his trial by the Assize Court, subject to the provisions of the following two paragraphs and of the article 148-1. If issued, the arrest warrant remains enforceable; if they have been issued, the arrest or search warrants cease to be able to be executed, without prejudice to the possibility for the examining magistrate to issue an arrest warrant against the accused.
The accused detained on account of the facts for which he is referred to the Assize Court is immediately released if he has not appeared before it after the expiration of a period of one year from either from the date on which the indictment decision became final if he was then detained, or from the date on which he was subsequently remanded in custody.
However, if the hearing on the merits cannot begin before the expiry of this period, the investigating chamber may, exceptionally, by a decision rendered in accordance with Article 144 and stating the reasons of fact or of right preventing the judgment of the case, order the extension of the pre-trial detention for a further period of six months. The appearance of the accused is by right if he or his lawyer so requests. This extension can be renewed once in the same forms. If the accused has not appeared before the Assize Court at the end of this new extension, he is immediately released.
The examining magistrate sends the file with his order to the public prosecutor. The latter is required to send it without delay to the registry of the Assize Court.
The exhibits, of which it is drawn up, are transmitted to the registry of the Assize Court if the latter sits in a court other than that of the examining magistrate.

Partial dismissal orders

Article 182


Orders involving partial dismissal may be issued during the information process.
Orders for partial return or partial transmission of documents may intervene, under the same conditions, when, on one or more of the facts before the examining magistrate, the charges collected appear sufficient.
Persons who have been the subject of an order for partial return or partial transmission of documents and who do not remain indicted for other facts are heard as assisted witnesses. The same applies in the event of disjunction of an investigation procedure.

Article 183


Settlement orders are brought to the attention of the Charged Person and the assisted witness and the referral or indictment orders are brought to the attention of the civil party; the notification is made as quickly as possible either verbally, with signature in the procedure file, or by registered letter.
Subject to the application of article 137-3, second paragraph, decisions which may be the subject of appeal by a party to the proceedings or a third party in accordance with articles 99 , 186 and 186-1 are notified to them as quickly as possible either verbally, with signature in the procedure file, or by registered letter. If the Charged Person is detained, they can also be brought to his attention by the head of the penitentiary establishment who sends, without delay, to the examining magistrate the original or the copy of the receipt signed by the no one. In all cases, a copy of the act is given to the person concerned.
Any notification of an act to a party by registered letter sent to the last address declared by the interested party is deemed to have been made in person.
The orders mentioned in the first and second paragraphs of this article which must be brought to the attention of the parties are simultaneously, and in the same manner, brought to the attention of their lawyers.
The opinions intended for the public prosecutor are sent to him by any means. When the examining magistrate renders a decision or order not in conformity with the requisitions of the public prosecutor, notice is given to the latter by the clerk.
In all cases, the clerk shall enter into the file the nature and date of the diligence carried out in application of this article as well as the forms used.

Article 184


The orders issued by the examining magistrate under this section contain the surname, first names, date, place of birth, domicile and profession of the person under examination. They indicate the legal qualification of the fact imputed to it and, in a precise way, the reasons for which there are or not sufficient charges against it. This motivation is taken with regard to the requisitions of the public prosecutor and the observations of the parties which were sent to the examining magistrate in application of article 175, specifying the elements for the prosecution and the defense concerning each of the persons under investigation.

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