CODE OF CRIMINAL PROCEDURES(1)
LexInter | September 4, 2018 | 0 Comments

CODE OF CRIMINAL PROCEDURE

Section XII: Appeal against the orders of the examining magistrate or the liberty and detention judge 

Article 185

(Ordinance nº 60-529 of June 4, 1960 art. 8 Official Journal of June 8, 1960)
(Law n ° 85-1407 of December 30, 1985 art. 31 and art. 94 Official Journal of December 31, 1985 in force on March 1, 1988)
(Law nº 87-1062 of December 30, 1987 art. 9 Official Journal of December 31, 1987 in force on September 1, 1989)
(Law n ° 2000-516 of June 15, 2000, art. 83 and 132 Official Journal of June 16, 2000 in force on January 1, 2001)
(Law n ° 2000-1354 of December 30, 2000 art. 26 Official Journal of December 31, 2000 in force on January 1, 2001)

The public prosecutor has the right to appeal to the investigating chamber against any order of the investigating judge or the judge of freedoms and detention.
This appeal, formed by declaration to the court registry, must be lodged within five days of notification of the decision.
In the event of an appeal by the person charged against the order of indictment provided for in article 181, the public prosecutor has an incidental appeal period of five additional days from the date of the appeal. of the Charged Person.
The right of appeal also belongs in all cases to the Attorney General. He must serve his appeal on the parties within ten days of the order of the examining magistrate or the liberty and detention judge.

Article 186

(Ordinance nº 58-1296 of December 23, 1958 art. 1 Official Journal of December 24, 1958) 
(Ordinance nº 60-529 of June 4, 1960 art. 2 Official Journal of June 8, 1960)
(Law n ° 70-643 of July 17, 1970 art. 5 Official Journal of July 19, 1970) 
(Law n ° 72-1226 of December 29, 1972, art. 32-i Official Journal of December 30, 1972)
(Law n ° 81-82 of February 2, 1981 art. 57 Official Journal of February 3, 1981)
(Law n ° 83-466 of June 10, 1983 art. 18 Official Journal of June 11, 1983)
(Law n ° 84-576 of July 9, 1984 art. 14-i, 14-ii and 19 Official Journal of July 10, 1984)
(Law n ° 85-1407 of December 30, 1985 art. 32-i, 32-ii and 94 Official Journal of December 31, 1985 in force on February 1, 1986)
(Law n ° 93-2 of January 4, 1993 art. 44 Official Journal of January 5, 1993 in force on March 1, 1993)
(Law n ° 93-2 of January 4, 1993 art. 234 Official Journal of January 5, 1993 in force on January 1, 1994)
(Law nº 93-1013 of August 24, 1993 art. 15 Official Journal of August 25, 1993 in force on September 2, 1993)
(Law n ° 2000-516 of June 15, 2000 art. 32, 82, 83 and 132 Official Journal of June 16, 2000 in force on January 1, 2001)
(Law n ° 2002-1138 of September 9, 2002 art. 39 Official Journal of September 10, 2002)
(Law n ° 2004-204 of March 9, 2004 art. 107 I Official Journal of March 10, 2004) 
(Law nº 2007-291 of March 5, 2007 art. 17 III, art. 18 VII Official Journal of March 6, 2007 in force on July 1, 2007)

The right of appeal belongs to the person under examination against the orders and decisions provided for by articles 80-1-1, 87, 139, 140, 137-3, 145-1, 145-2, 148, 167, fourth paragraph, 179, third paragraph, and 181.
The civil party can appeal against orders not to inform, dismissal and orders adversely affecting his civil interests. However, his appeal may not, in any case, relate to an order or to the provision of an order relating to the detention of the person under investigation or to judicial review.
The parties may also appeal against the order by which the judge, ex officio or on objection, ruled on his jurisdiction.
The appeal of the parties as well as the request provided for in the fifth paragraph of article 99 must be brought under the conditions and according to the modalities provided for by articles 502 and 503, within ten days of the notification or service of the notice. decision.
The information file or its copy established in accordance with article 81 is transmitted, with the reasoned opinion of the public prosecutor, to the public prosecutor, who proceeds as stated in articles 194 and following.
If the president of the investigating chamber finds that an appeal has been made against an order not referred to in paragraphs 1 to 3 of this article, he shall automatically issue an order refusing the appeal which is not admitted. is not susceptible to legal remedies. The same applies when the appeal has been brought after the expiry of the period provided for in the fourth paragraph or when the appeal has become devoid of purpose. The president of the investigating chamber is also competent to note the withdrawal of the appeal filed by the appellant.
 

Article 186-1

(Law n ° 72-1226 of December 29, 1972 art. 32-ii Official Journal of December 30, 1972) 
(Law n ° 85-1407 of December 30, 1985, art. 33 and 94 Official Journal of December 31, 1985 in force on February 1, 1986)
(Law nº 87-1062 of December 30, 1987 art. 9 Official Journal of December 31, 1987 in force on September 1, 1989)
(Law nº 93-2 of January 4, 1993 art. 45 Official Journal of January 5, 1993 in force on March 1, 1993) 
(Law n ° 2000-516 of June 15, 2000 art. 22, 83 and 132 Official Journal of June 16, 2000 in force on January 1, 2001)
(Law n ° 2007-291 of March 5, 2007 art. 18 VII Official Journal of March 6, 2007 in force on July 1, 2007)

The parties may also appeal against the orders provided for by the ninth paragraph of article 81, by articles 82-1 and 82-3, and by the second paragraph of article 156.
In this case, the file of the information, or a copy drawn up in accordance with article 81, is sent with the reasoned opinion of the public prosecutor to the president of the investigating chamber.
Within eight days of receiving this file, the president decides, by an order which is not subject to appeal, whether or not it is necessary to refer the appeal to the investigating chamber.
If so, he transmits the file to the Attorney General who proceeds as stated in Articles 194 and following.
If not, he orders by reasoned decision that the information file be returned to the examining magistrate.

Article 186-2

(inserted by Law n ° 2000-516 of June 15, 2000, art. 82 and 132 Official Journal of June 16, 2000 in force on January 1, 2001)

In the event of an appeal against an order provided for in article 181, the investigating chamber rules within four months of the order, failing which, if the person is detained, he is automatically released.

Article 186-3

(inserted by Law n ° 2004-204 of March 9, 2004 art. 124 I Official Journal of March 10, 2004 in force on October 1, 2004)

The indicted person and the civil party may appeal against the orders provided for in the first paragraph of article 179 in the sole case where they consider that the facts referred to the criminal court constitute a crime which should have been the subject of ‘an order of indictment before the Assize Court.

Article 186-3

(Law n ° 2004-204 of March 9, 2004 art. 124 I Official Journal of March 10, 2004 in force on October 1, 2004) 
(Law n ° 2007-291 of March 5, 2007 art. 7 V Official Journal of March 6, 2007 in force on March 1, 2008)

The indicted person and the civil party may appeal against the orders provided for in the first paragraph of article 179 if they consider that the facts referred to the criminal court constitute a crime which should have been the subject of an order of indictment before the Assize Court.
When the information has been the subject of a co-referral, they may also, in the absence of co-signature by the Co-seized investigating judges in accordance with article 83-2, appeal against these orders.

NOTE: Law 2007-291 of March 5, 2007 art. 30 III: Article 7 of this law comes into force on the date fixed by the decree provided for by article 52-1 of the Code of Criminal Procedure in its wording resulting from I of article 6 of this law, and no later than the first day of the twelfth month following the publication of this law.
However, until the date of entry into force of article 7, a decree taken in application of article 52-1 of the same code may establish poles of instruction in the jurisdictions of one or more courts. appeal or parts of these jurisdictions, by fixing in these jurisdictions the date of entry into force of article 6 of this law.
The investigating judges of the jurisdictions in which the poles are not established remain competent to continue until completion the information in progress on the date of establishment of the poles for facts of a criminal nature, without prejudice to the possibility of a divestiture if necessary in cosaisine.

Article 186-3

(Law n ° 2004-204 of March 9, 2004 art. 124 I Official Journal of March 10, 2004 in force on October 1, 2004)
(Law n ° 2007-291 of March 5, 2007 art. 7 V Official Journal of March 6, 2007 in force on March 1, 2008)
(Law n ° 2007-291 of March 5, 2007 art. 30 II Official Journal of March 6, 2007 in force on January 1, 2010)

The indicted person and the civil party may appeal against the orders provided for in the first paragraph of article 179 if they consider that the facts referred to the criminal court constitute a crime which should have been the subject of an order of indictment before the Assize Court.

Article 187

(Law nº 87-1062 of December 30, 1987 art. 9 Official Journal of December 31, 1987 in force on September 1, 1989)
(Law nº 93-1013 of August 24, 1993 art. 38 Official Journal of August 25, 1993 in force on September 2, 1993)
(Law nº 95-125 of February 8, 1995, art. 57 Official Journal of February 9, 1995) 
(Law n ° 2000-516 of June 15, 2000, art. 83 and 132 Official Journal of June 16, 2000 in force on January 1, 2001)

When an appeal is lodged against an order other than a settlement order or when the investigation chamber is directly seized, in application of articles 81, ninth paragraph, 82-1, second paragraph, 156, second paragraph, or 167, fourth paragraph, the examining magistrate continues his information, including, where applicable, until it is settled, unless the president of the investigating chamber decides otherwise. This decision is not subject to appeal.
The same applies when the investigating chamber is seized of a request for nullity in application of article 173.
 

Article 187-1

(Law nº 93-1013 of August 24, 1993 art. 17 Official Journal of August 25, 1993 in force on September 2, 1993)
(Law nº 96-1235 of December 30, 1996 art. 11 Official Journal of January 1, 1997 in force on March 31, 1997)
(Law n ° 2000-516 of June 15, 2000, art. 83 and 132 Official Journal of June 16, 2000 in force on January 1, 2001)
(Law n ° 2000-1354 of December 30, 2000 art. 16 Official Journal of December 31, 2000 in force on January 1, 2001)

In the event of an appeal from an order of placement in pre-trial detention, the person under examination or the public prosecutor may, if the appeal is lodged no later than the day following the decision of detention, ask the president of the investigating chamber or, in the event of impediment, to the magistrate replacing him, to immediately examine his appeal without waiting for the hearing of the investigating chamber. This request must, under penalty of inadmissibility, be made at the same time as the appeal before the investigating chamber. The person under examination, his lawyer or the public prosecutor may attach any written observations in support of the request. At his request, the
The president of the investigating chamber or the magistrate who replaces him decides at the latest on the third working day following the request, in view of the elements of the file of the procedure, by an unjustified order which is not susceptible to appeal. .
The president of the investigating chamber or the magistrate who replaces him may, if he considers that the conditions provided for by article 144 are not met, set aside the order of the judge of freedoms and detention and order the release of the person. The investigation chamber is then divested.
Otherwise, he must refer the examination of the appeal to the investigating chamber.
If he reverses the order of the judge of freedoms and detention, the president of the chamber of instruction or the magistrate who replaces him can order the placing under judicial supervision of the person under examination.
If the examination of the appeal is referred to the investigating chamber, the decision is brought to the attention of the public prosecutor. It is notified to the person under examination by the registry of the penitentiary establishment who can, if necessary, receive the withdrawal of the appeal from the latter.
The declaration of appeal and the request provided for in the first paragraph of this article may be noted by the judge of freedoms and detention at the end of the adversarial debate provided for by the fourth paragraph of article 145. For the application of the second paragraph of the present article, the transmission of the file of the procedure to the president of the chamber of the instruction can be carried out by fax.

Article 187-2

(inserted by Law n ° 2000-516 of June 15, 2000, art. 64 and 132 Official Journal of June 16, 2000 in force on January 1, 2001)

The person who forms the appeal provided for in article 187-1 may request that it be directly examined by the investigating chamber. It is then decided at the latest, in view of the elements of the file, the fifth working day following the request.
 

Article 187-3

(inserted by Law n ° 2002-1138 of September 9, 2002 art. 38 Official Journal of September 10, 2002 in force on November 1, 2002)

In the case provided for by the second paragraph of article 148-1-1, the public prosecutor who lodges an appeal against a release order contrary to his requisitions within four hours of his notification must , under penalty of inadmissibility, at the same time seize the first president of the court of appeal or, in the event of impediment, the magistrate who replaces him, of a summary-detention in order to declare this suspensive appeal. The public prosecutor attaches to his request the written observations justifying the person’s continued detention. The Charged Person and his lawyer may also present any written observations they deem useful.
The first president of the court of appeal or the magistrate who replaces him rules no later than the second working day following the request. During this period, the effects of the release order are suspended and the person remains in detention. If the first president of the court of appeal or the magistrate who replaces him fails to rule within this period, the person is released, unless he is detained for another cause.
The first president of the court of appeal or the magistrate who replaces him decides, in view of the elements of the file of the procedure, by a reasoned order which is not susceptible to appeal. At his request, the lawyer of the person under examination can present oral observations before this magistrate, during a hearing of cabinet of which the public prosecutor is informed so that he takes, if necessary, his requisitions.
If the first president of the court of appeal or the magistrate who replaces him considers that the continued detention of the person is clearly necessary in view of at least two of the criteria provided for by the provisions of article 144 until that the investigating chamber decides on the appeal of the prosecution, it orders the suspension of the effects of the release order until that date. The indicted person cannot then be released until the hearing of the investigating chamber before which his personal appearance is by right; the investigating chamber must rule as quickly as possible and at the latest within ten days of the appeal,
Otherwise, the first president of the court of appeal or the magistrate who replaces him orders that the person be released if he is not detained for another cause.
Under penalty of nullity, the magistrate having ruled on the request for summary detention cannot be part of the composition of the investigating chamber which will rule on the appeal of the public prosecutor.
The transmission of the file of the procedure to the first president of the court of appeal or to the magistrate who replaces him can be carried out by fax.

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