LexInter | July 19, 2003 | 0 Comments

Section III: Powers of the public prosecutor

Section III: Powers of the public prosecutor
Article 39

(Ordinance nº 58-1296 of December 23, 1958 art. 1 Official Journal of December 24, 1958 in force on March 2, 1959) (Ordinance nº 60-529 of June 4, 1960 art. 2 Official Journal of June 8, 1960) (Law nº 2005 -47 of January 26, 2005 art. 9 III Official Journal of January 27, 2005 in force on April 1, 2005)

The public prosecutor represents in person or through his substitutes the public prosecution before the tribunal de grande instance, without prejudice to the provisions of article 105 of the forestry code and article 446 of the rural code.
He also represents in person or through his substitutes the public prosecutor before the assize court established at the seat of the court.
He also represents, in person or through his substitutes, the public prosecutor before the police court or the local court under the conditions set by article 45 of this code.

NOTE: Law n ° 2005-47, article 11: These provisions come into force on the first day of the third month following their publication. However, cases which are regularly seized by the police court or the local court on that date remain within the competence of these courts.

Article 39-1

(inserted by Law nº 2007-297 of March 5, 2007 art. 7 I 2º Official Journal of March 7, 2007)

Within the framework of his attributions as regards alternatives to prosecutions, setting in motion and exercising public action, direction of the judicial police, identity control and execution of sentences, the public prosecutor of the Republic sees to the prevention of the infringements of the penal law.
To this end, he leads and coordinates within the jurisdiction of the tribunal de grande instance the crime prevention policy in its judicial component, in accordance with the national guidelines of this policy determined by the State, as specified by the Attorney General in application. of Article 35.
He is also consulted by the State representative in the department before the latter draws up the crime prevention plan.

Article 40

(Law n ° 85-1407 of December 30, 1985, art. 1 and 94 Official Journal of December 31, 1985 in force on February 1, 1986)

(Law n ° 98-468 of June 17, 1998 art. 27 Official Journal of June 18, 1998)

(Law n ° 2004-204 of March 9, 2004 art. 74 Official Journal of March 10, 2004)

The public prosecutor receives complaints and denunciations and assesses the follow-up to be given to them in accordance with the provisions of article 40-1.
Any constituted authority, any public officer or civil servant who, in the exercise of his functions, acquires knowledge of a crime or an offense is required to give notice thereof without delay to the public prosecutor and to transmit to this magistrate all the information, minutes and documents relating thereto.

Article 40-1

(Law n ° 2002-1138 of September 9, 2002 art. 64 Official Journal of September 10, 2002)

(Law n ° 2004-204 of March 9, 2004 art. 67 Official Journal of March 10, 2004)

(Law n ° 2004-204 of March 9, 2004 art. 68 Official Journal of March 10, 2004)

When he considers that the facts which have been brought to his knowledge in application of the provisions of article 40 constitute an offense committed by a person whose identity and domicile are known and for whom no legal provision is an obstacle to the setting in motion of the public action, the territorially competent public prosecutor decides if it is appropriate:
1 ° Either to initiate proceedings;
2 ° Or to implement an alternative procedure to prosecution in application of the provisions of articles 41-1 or 41-2;
3 ° Or to discontinue the procedure as soon as the specific circumstances linked to the commission of the facts justify it.

Article 40-2

(inserted by Law nº 2004-204 of March 9, 2004 art. 68, art. 207 VII 1º Official Journal of March 10, 2004)

The public prosecutor notifies the plaintiffs and the victims if they are identified, as well as the persons or authorities mentioned in the second paragraph of article 40, of prosecutions or alternative measures to prosecutions which have been decided following their complaint. or their report.
When the perpetrator is identified but the public prosecutor decides to discontinue the procedure, he also notifies them of his decision, indicating the legal or expedient reasons which justify it.

Article 40-2

(Law nº 2004-204 of March 9, 2004 art. 68, art. 207 VII 1º Official Journal of March 10, 2004)

(Law nº 2004-204 of March 9, 2004 art. 207 VII 1º Official Journal of March 10, 2004 in force on December 31, 2007)

The public prosecutor notifies the plaintiffs and the victims if they are identified, as well as the persons or authorities mentioned in the second paragraph of article 40, of prosecutions or alternative measures to prosecutions which have been decided following their complaint. or their report.
When he decides to discontinue the procedure, he also notifies them of his decision, indicating the legal or expedient reasons which justify it.
Article 40-3

(inserted by Law n ° 2004-204 of March 9, 2004 art. 68 Official Journal of March 10, 2004)
Anyone who has denounced facts to the Public Prosecutor may appeal to the Public Prosecutor against the discontinued decision taken following this denunciation. The public prosecutor may, under the conditions provided for in article 36, order the public prosecutor to initiate proceedings. If he considers the appeal unfounded, he informs the person concerned.

Article 40-4

(inserted by Law n ° 2004-204 of March 9, 2004 art. 67 Official Journal of March 10, 2004)

When the victim wishes to become a civil party and requests the appointment of a lawyer after having been informed of this right in application of 3 ° of articles 53-1 and 75, the public prosecutor, notified by the officer or agent of the judicial police, if he decides to put the public action in motion, immediately informs the president of the bar association.
Otherwise, he indicates to the victim, by notifying him of the classification of his complaint, that he can directly address his request for designation to the President of the Bar if he maintains his intention to obtain compensation for his damage.

Article 41

(Ordinance nº 58-1296 of December 23, 1958 art. 1 Official Journal of December 24, 1958 in force on March 2, 1959)

(Law n ° 81-82 of February 2, 1981 art. 38 Official Journal of February 3, 1981)

(Law n ° 89-461 of July 6, 1989 art. 1 Official Journal of July 8, 1989 in force on December 1, 1989)

(Law n ° 93-2 of January 4, 1993, art. 5 and 6 Official Journal of January 5, 1993)

(Law n ° 99-515 of June 23, 1999 art. 2 Official Journal of June 24, 1999)

(Law n ° 2000-516 of June 15, 2000, art. 102 and 123 Official Journal of June 16, 2000)

(Law n ° 2000-516 of June 15, 2000 art. 3 Official Journal of June 16, 2000 in force on January 1, 2001)

(Law n ° 2002-307 of March 4, 2002 art. 1 Official Journal of March 5, 2002)

(Law n ° 2003-1119 of November 26, 2003 art. 80 Official Journal of November 27, 2003)

(Law n ° 2004-204 of March 9, 2004 art. 128 I Official Journal of March 10, 2004 in force on October 1, 2004)

(Law nº 2007-291 of March 5, 2007 art. 13 Official Journal of March 6, 2007)

The public prosecutor carries out or has carried out all the acts necessary for the investigation and prosecution of offenses against criminal law.
To this end, he directs the activity of the officers and agents of the judicial police within the jurisdiction of his court.
The public prosecutor controls the custody measures. He visits the custody premises whenever he considers it necessary and at least once a year; for this purpose, he keeps a register listing the number and frequency of checks carried out in these different premises. He sends the Attorney General a report on the custody measures and the state of the custody premises under his jurisdiction; this report is sent to the Keeper of the Seals. The Keeper of the Seals reports on all the information thus collected in an annual report which is made public.
He has all the powers and prerogatives attached to the quality of judicial police officer provided for by section II of chapter I of title I of this book, as well as by special laws.
In the event of flagrant offenses, he exercises the powers assigned to him by article 68.
The public prosecutor may also request, depending on the case, the penitentiary integration and probation service, the competent service for supervised education or any person authorized under the conditions provided for in Article 81, sixth paragraph, to verify the material, family and social situation of a person being investigated and informing him of the appropriate measures to promote the social integration of the person concerned.
These procedures must be prescribed before any request for placement in pre-trial detention, in the event of proceedings against an adult under the age of twenty-one at the time of the commission of the offense, when the penalty incurred does not exceed five years. ‘imprisonment, and in the event of prosecution according to the immediate appearance procedure provided for in articles 395 to 397-6 or according to the appearance procedure on prior admission of guilt provided for in articles 495-7 to 495-13.

With the exception of the offenses provided for in Articles 19 and 27 of Ordinance No. 45-2658 of 2 November 1945 relating to the conditions of entry and stay of foreigners in France, in the event of prosecution for an offense liable to lead to against the pronouncement of a ban on French territory of a foreigner who declares, before any referral to the competent court, to be in one of the situations provided for by articles 131-30-1 or 131-30 -2 of the penal code, the public prosecutor cannot take any requisition of prohibition from French territory if he has not previously requested, depending on the case, the competent judicial police officer,the penitentiary integration and probation service, the competent service for the judicial protection of young people, or any person authorized under the conditions of Article 81, sixth paragraph, in order to verify the validity of this declaration.
The public prosecutor may also resort to an association to help victims who have been the subject of an agreement by the heads of the court of appeal, in order to provide assistance to the victim of the offense.

Article 41-1

(Law n ° 85-1407 of December 30, 1985 art. 2 and 94 Official Journal of December 31, 1985 in force on February 1, 1986)
(Law nº 87-962 of November 30, 1987 art. 10 Official Journal of December 1, 1987)

(Law n ° 99-515 of June 23, 1999 art. 1 Official Journal of June 24, 1999)

(Law n ° 2003-495 of June 12, 2003 art. 6 IX Official Journal of June 13, 2003)

(Law n ° 2004-204 of March 9, 2004 art. 69, art. 70 Official Journal of March 10, 2004)

(Law n ° 2005-1549 of December 12, 2005 art. 35 I Official Journal of December 13, 2005)

(Law n ° 2006-399 of April 4, 2006 art. 12 I Official Journal of April 5, 2006)

(Law nº 2007-297 of March 5, 2007 art. 65 I Official Journal of March 7, 2007)

If it appears to him that such a measure is likely to ensure compensation for the damage caused to the victim, to put an end to the disturbance resulting from the offense or to contribute to the reclassification of the perpetrator, the public prosecutor Republic may, prior to its decision on the public action, directly or through the intermediary of a judicial police officer, a delegate or a mediator of the public prosecutor:
1 ° Make a reminder to the author of the facts of the obligations resulting from the law;
2 ° Refer the perpetrator to a health, social or professional structure; this measure may consist in the accomplishment by the perpetrator, at his expense, of an internship or training in a health, social or professional service or organization, and in particular a citizenship internship, d ” a parental responsibility course or an awareness course on the dangers of the use of narcotic products; in the event of an offense committed while driving a land motor vehicle, this measure may consist in the completion, by the perpetrator, at his expense, of a security awareness course road;
3 ° Ask the perpetrator to regularize his situation with regard to the law or regulations;
4 ° Ask the perpetrator to repair the damage resulting from them;
5 ° To proceed, with the agreement of the parties, to a mediation mission between the perpetrator and the victim;
6 ° In the event of an offense committed either against his spouse, his cohabiting partner or his partner bound by a civil solidarity pact, or against his children or those of his spouse, cohabiting partner or partner, ask the perpetrator to reside outside the domicile or residence of the couple and, where applicable, to refrain from appearing in this domicile or residence or in the immediate vicinity thereof, as well as, if necessary, to be taken into account. health, social or psychological burden; the provisions of this 6 ° are also applicable when the offense is committed by the former spouse or partner of the victim, or by the person having been bound to him by a civil solidarity pact,
The procedure provided for in this article suspends the limitation period for public action. If the mediation is successful, the public prosecutor or the public prosecutor’s mediator draws up a report, which is signed by himself and by the parties, and a copy of which is given to them; if the perpetrator has undertaken to pay damages to the victim, the latter may, in view of this report, request its recovery following the order for payment procedure, in accordance with the rules laid down by the new code of civil procedure.
In the event of non-execution of the measure due to the behavior of the perpetrator, the public prosecutor, unless there is a new element, implements a penal composition or initiates proceedings.

V ° CRIMINAL COMPOSITION

Article 41-2

(Law n ° 99-515 of June 23, 1999 art. 1 Official Journal of June 24, 1999)

(Law n ° 2001-1062 of November 15, 2001 art. 54 Official Journal of November 16, 2001)

(Ordinance n ° 2000-916 of September 19, 2000 art. 3 Official Journal of September 22, 2000 in force on January 1, 2002)

(Law n ° 2002-1138 of September 9, 2002 art. 36 Official Journal of September 10, 2002)

(Law n ° 2004-204 of March 9, 2004 art. 71 I Official Journal of March 10, 2004)

(Law n ° 2005-47 of January 26, 2005 art. 8 I Official Journal of January 27, 2005 in force on April 1, 2005)

(Law n ° 2005-1549 of December 12, 2005 art. 35 II Official Journal of December 13, 2005)

(Law n ° 2006-399 of April 4, 2006 art. 12 II Official Journal of April 5, 2006)

(Law nº 2007-297 of March 5, 2007 art. 50, art. 63 II, art. 64 IX Official Journal of March 7, 2007)

The public prosecutor, as long as the public action has not been set in motion, can propose, directly or through an authorized person, a criminal composition to a natural person who acknowledges having committed one or more offenses punishable as the main penalty with a fine or imprisonment for a period of less than or equal to five years, as well as, where applicable, one or more related offenses consisting of one or more several of the following measures:
1 ° Pay a composition fine to the Public Treasury. The amount of this fine, which may not exceed the maximum amount of the fine incurred, is set according to the seriousness of the facts as well as the resources and costs of the person. Its payment may be staggered, according to a schedule set by the public prosecutor, within a period which may not exceed one year;
2 ° To divest itself for the benefit of the State of the thing which served or was intended to commit the offense or which is the product thereof;
3 ° Return his vehicle, for a maximum period of six months, for immobilization;
4 ° Submit his driving license to the registry of the district court, for a maximum period of six months;
5 ° Submit your hunting license to the registry of the tribunal de grande instance, for a maximum period of six months;
6 ° To carry out for the benefit of the community, in particular within a legal person of public law or of a legal person of private law entrusted with a public service mission or an authorized association, unpaid work for a period of maximum of sixty hours, within a period which may not exceed six months;
7 ° Follow an internship or training in a health, social or professional service or organization for a period which may not exceed three months within a period which may not exceed eighteen months;
8 ° Not to issue, for a period of six months at most, checks other than those which allow the withdrawal of funds by the drawer from the drawee or those which are certified and not to use payment cards;
9 ° Not to appear, for a period which may not exceed six months, in the place or places in which the offense was committed and which are designated by the public prosecutor, with the exception of places in which the person resides habitually ;
10 ° Not to meet or receive, for a period which cannot exceed six months, the victim (s) of the offense designated by the public prosecutor or not to enter into contact with them;
11 ° Not to meet or receive, for a period which cannot exceed six months, the co-author (s) or possible accomplices designated by the public prosecutor or not to enter into contact with them;

12 ° Not to leave the national territory and to hand over his passport for a period which cannot exceed six months;
13 ° Carry out, if necessary at his own expense, a citizenship course;
14 ° In the event of an offense committed either against his spouse, his cohabiting partner or his partner bound by a civil solidarity pact, or against his children or those of his spouse, cohabiting partner or partner, reside outside the domicile or residence of the couple and , where applicable, refrain from appearing in this home or residence or in the immediate vicinity thereof, as well as, if necessary, undergo health, social or psychological care; the provisions of this 14 ° are also applicable when the offense is committed by the former spouse or partner of the victim, or by the person having been bound to him by a civil solidarity pact,
15 ° Carry out, if necessary at his own expense, a training course to raise awareness of the dangers of the use of narcotic products;
16 ° Submit to a day activity measure consisting of the implementation of professional integration activities or educational upgrading either with a legal person of public law, or with a legal person of law private responsible for a public service mission or an association empowered to implement such a measure;
17 ° Submit to a therapeutic injunction measure, in accordance with the terms defined in Articles L. 3413-1 to L. 3413-4 of the Public Health Code, when it appears that the person concerned is using narcotics or making a habitual and excessive consumption of alcoholic beverages.
When the victim is identified, and unless the perpetrator justifies compensation for the damage committed, the public prosecutor must also offer the latter to repair the damage caused by the offense within a time limit which cannot be greater than at six months. He informs the victim of this proposition. This compensation may consist, with the victim’s consent, in the restoration of property damaged by the commission of the offense.
The proposal for a penal composition emanating from the public prosecutor may be brought to the attention of the perpetrator through the intermediary of a judicial police officer. It is then the subject of a written and signed decision by this magistrate, which specifies the nature and quantum of the measures proposed and which is attached to the procedure.
The penal composition can be proposed in a house of justice and law.
The person who is proposed a criminal composition is informed that he can be assisted by a lawyer before giving his agreement to the proposal of the public prosecutor. Said agreement is obtained by minutes. A copy of this report is sent to him.

When the perpetrator agrees to the proposed measures, the public prosecutor applies to the president of the court by request for the purpose of validating the composition. The public prosecutor informs the author of the facts and, if applicable, the victim of this referral. The president of the court may proceed to hear the perpetrator and the victim, assisted, if necessary, by their lawyer. If this magistrate issues an order validating the composition, the measures decided upon are implemented. Otherwise, the proposal lapses. The decision of the president of the court, which is notified to the perpetrator and, where appropriate, to the victim, is not subject to appeal.
If the person does not accept the penal composition or if, after having given his agreement, he does not fully carry out the measures decided upon, the public prosecutor sets in motion the public action, unless there is a new element. In the event of prosecution and conviction, account is taken, if applicable, of the work already done and the sums already paid by the person.
The acts tending to the implementation or the execution of the penal composition are interrupting the prescription of the public action.
The execution of the penal composition extinguishes public action. However, it does not preclude the right of the civil party to issue a direct summons before the criminal court under the conditions provided for in this code. The court, composed of a single magistrate exercising the powers conferred on the president, then rules only on civil interests, in view of the procedural file which is submitted for debate.
The victim also has the possibility, in view of the validation order, when the perpetrator has undertaken to pay him damages, to request its recovery following the order for payment procedure,

The executed penal compositions are entered in bulletin n ° 1 of the criminal record.
The provisions of this article are not applicable in matters of press offenses, manslaughter offenses or political offenses. They are applicable to minors of at least thirteen years of age, in accordance with the terms set out in article 7-2 of ordinance n ° 45-174 of 2 February 1945 relating to child delinquency.
The president of the court may designate, for the purposes of validating the penal composition, any judge of the court as well as any local judge practicing within the jurisdiction of the court.
The modalities of application of this article are fixed by decree of the Council of State.

Article 41-3

(Law n ° 99-515 of June 23, 1999 art. 1 Official Journal of June 24, 1999)

(Ordinance n ° 2000-916 of September 19, 2000 art. 3 Official Journal of September 22, 2000 in force on January 1, 2002)

(Law n ° 2002-1138 of September 9, 2002 art. 36 Official Journal of September 10, 2002)

(Law n ° 2004-204 of March 9, 2004 art. 71 II Official Journal of March 10, 2004)

(Law n ° 2005-47 of January 26, 2005 art. 8 II Official Journal of January 27, 2005 in force on April 1, 2005)

The penal composition procedure is also applicable to contraventions.
The duration of the deprivation of a driving license or a hunting license may not exceed three months, the duration of unpaid work may not exceed thirty hours, within a maximum period of three months, and the duration of the ban on also issuing checks cannot exceed three months. The measures provided for by 9º to 12º of article 41-2 are not applicable. The measure provided for by 6 ° of the said article is not applicable to contraventions of the first class to the fourth class. The same applies to the measures provided for in 2 ° to 5 ° and 8 ° of this article, except if the contravention is punishable by the additional penalties referred to in 1 ° to 5 ° of article 131-16 of the penal code.
The request for validation is brought, depending on the nature of the contravention, before the judge of the police court or before the judge of the local court, unless the local judge is appointed by the president of the court for the purpose of validating the case. ‘all of the contraventional penal compositions.

NOTE: Law n ° 2005-47, article 11: These provisions come into force on the first day of the third month following their publication. However, cases which the police court or the local court are regularly seized on that date remain within the competence of these courts.
Article 41-4

(Law n ° 99-515 of June 23, 1999, art. 1 and 21 Official Journal of June 24, 1999)

(Law n ° 2004-204 of March 9, 2004 art. 126 I Official Journal of March 10, 2004)

When no court has been seised or when the court seised has exhausted its jurisdiction without having ruled on the return of the objects, the public prosecutor or the public prosecutor is competent to decide, ex officio or on request, on the restitution of these objects when the ownership is not seriously contested.
There is no reason for restitution when it is likely to create a danger for people or property or when a special provision provides for the destruction of objects placed under the control of justice; the decision of non-restitution taken for one of these reasons or for any other reason, even ex officio, by the public prosecutor or the public prosecutor may be contested within one month of its notification by request of the person concerned before the criminal court or the correctional appeals chamber, which rules in the council chamber.
If restitution has not been requested or decided within six months of the classification decision or the decision by which the last court seised has exhausted its jurisdiction, the objects not returned become property of the State, subject to the rights of third parties. It is the same when the owner or the person to whom the restitution has been granted does not claim the object within two months from a formal notice sent to his domicile. Objects the return of which is likely to create a danger for people or property become property of the State, subject to the rights of third parties, as soon as the decision of non-return can no longer be contested,
Article 42

   The public prosecutor has, in the exercise of his functions, the right to directly request the public force.
Article 43

(Law n ° 2004-204 of March 9, 2004 art. 111, art. 125 Official Journal of March 10, 2004)

(Law n ° 2005-1549 of December 12, 2005 art. 36 II Official Journal of December 13, 2005)

The public prosecutor of the place of the offense, that of the residence of one of the persons suspected of having participated in the offense, that of the place of arrest of one of these persons, even when this The arrest was made for another cause and that of the place of detention of one of these persons, even when this detention is carried out for another cause.
forward the procedure to the public prosecutor at the tribunal de grande instance closest to the jurisdiction of the court of appeal. This court is then territorially competent to hear the case, by way of derogation from the provisions of articles 52, 382 and 522. The decision of the public prosecutor constitutes a measure of judicial administration which is not subject to any appeal.
Article 44

(Ordinance nº 58-1296 of December 23, 1958 art. 1 Official Journal of December 24, 1958 in force on March 2, 1959)
(Law n ° 2005-47 of January 26, 2005 art. 9 IV Official Journal of January 27, 2005 in force on April 1, 2005)

The public prosecutor has authority over the officers of the public prosecution in the police courts and the local courts within his jurisdiction. He can denounce to them the contraventions of which he is informed and order them to prosecute. It can also, if necessary, request the opening of information.
NOTE: Law n ° 2005-47, article 11: These provisions come into force on the first day of the third month following their publication. However, cases which the police court or the local court are regularly seized on that date remain within the competence of these courts.

Article 44-1

(Law n ° 2006-396 of March 31, 2006 art. 51 Official Journal of April 2, 2006)
(Law nº 2007-297 of March 5, 2007 art. 74 III 2º Official Journal of March 7, 2007)

For offenses that municipal police officers are authorized to record by report in accordance with the provisions of article L. 2212-5 of the general code of local authorities and which are committed to the detriment of the municipality under the one of his assets, the mayor can, as long as the public action has not been set in motion, propose to the offender a transaction consisting in the compensation of this damage.
The transaction proposed by the mayor and accepted by the offender must be approved by the public prosecutor.
Acts tending to the implementation or execution of the transaction interrupt the prescription of the
Public action is terminated when the offender has performed the obligations resulting for him from the acceptance of the transaction within the time limit.
The transaction may also consist of the performance, for the benefit of the municipality, of unpaid work for a maximum period of thirty hours. It must then be approved, depending on the nature of the offense, by the judge of the police court or by the judge of the local jurisdiction.
When one of these contraventions has not been committed to the detriment of the municipality but has been committed on the territory of the latter, the mayor may propose to the public prosecutor to proceed with one of the measures provided for in articles 41- 1 or 41-3 of this code. He is informed by the public prosecutor of the action taken on his proposal.
The provisions of this article apply to contraventions of the same nature as the agents of the city of Paris in charge of a police service and the surveillance agents of Paris are authorized to record by report in accordance with the provisions of articles L. 2512-16 and L. 2512-16-1 of the general code of local authorities. These provisions also apply to contraventions of the same nature that the rural guards are empowered to record in accordance with article L. 2213-18 of the general code of local authorities.
A Council of State decree specifies the conditions of application of this article.

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