| July 29, 2002 | 0 Comments
Notice of summons by report and immediate appearance
In correctional matters, after having ascertained the identity of the person referred to him, having informed him of the facts alleged against him and having taken his statements if he so requests, the public prosecutor may, if he considers that information is not necessary, proceed as stated in articles 394 to 396.
The public prosecutor then informs the person referred to him that he has the right to the assistance of a lawyer of his choice or appointed. The lawyer chosen or, in the case of a request for ex officio commission, the president of the Bar Association, is notified without delay.
The lawyer can immediately consult the file and communicate freely with the accused.
Mention of these formalities is made in the minutes under penalty of nullity of the procedure.
The public prosecutor may invite the person referred to appear before the court within a time limit which may not be less than ten days, unless the person expressly waived in the presence of his lawyer, nor greater than two months. He notifies him of the facts held against him as well as the place, date and time of the hearing. This notification, mentioned in the official report, a copy of which is immediately given to the accused, constitutes a summons to no one.
The lawyer chosen or the chairman is informed, by any means and without delay, of the date and time of the hearing; mention of this opinion is entered in the minutes. The lawyer can consult the file at any time.
If the public prosecutor considers it necessary to subject the accused until his appearance before the court to one or more obligations of judicial control, he immediately brings him before the president of the court or the judge delegated by him, ruling in the council chamber with the assistance of a clerk. This magistrate may, after hearing the accused, his lawyer having been informed and heard in his observations, if he so requests, pronounce this measure under the conditions and according to the modalities provided for by articles 138 and 139. This decision is notified verbally to the notified and mentioned in the report, a copy of which is given to him on the spot.
If the maximum imprisonment provided for by law is at least two years, the public prosecutor, when it appears to him that the charges are sufficient and that the case is ready for trial , may, if he considers that the elements of the case justify an immediate appearance, bring the accused immediately before the tribunl.
In the event of a flagrant offense, if the maximum imprisonment provided for by law is at least six months, the public prosecutor, if he considers that the elements of the case justify an immediate appearance, may express the immediately warned in court.
The accused is held until his appearance which must take place the same day; he is taken to court under escort.
In the case provided for in the preceding article, if the court meeting is impossible on the same day and if the elements of the case appear to him to require a measure of provisional detention, the public prosecutor may bring the accused before the judge of freedoms and detention, ruling in council with the assistance of a clerk.
The judge, after having taken the statements of the defendant, his lawyer having been informed, and after having carried out, if necessary, the verifications provided for by the sixth paragraph of article 41, decides on the requisitions of the public prosecutor. for the purpose of pre-trial detention, after having collected any observations from the defendant or his lawyer; the order issued is not subject to appeal.
He can place the accused in pre-trial detention until his appearance in court. The order prescribing the detention is issued in accordance with the procedures provided for in Article 137-3, first paragraph, and must include the statement of the legal and factual considerations which constitute the basis of the decision with reference to the provisions of 1 °, 2 ° and 3 ° of article 144. This decision sets out the facts retained and refers the matter to the court; it is notified verbally to the accused and mentioned in the report, a copy of which is given to him on the spot. The accused must appear in court no later than the second following working day. Otherwise, he is automatically released.
If the judge considers that pre-trial detention is not necessary,
If the accused consents to be tried immediately, this is mentioned in the hearing notes.
When the penalty incurred exceeds seven years’ imprisonment, the accused, informed of the extent of his rights, may request that the case be referred to a hearing which must take place within a period which may not be less than two months, without being more than four months.
In all the cases provided for in this paragraph, the court may, in accordance with the provisions of article 141-1, place or maintain the accused under judicial supervision. This decision is enforceable by provision.
In the cases provided for in Articles 395 et seq., The court may also place or maintain the accused in pre-trial detention by specially reasoned decision. The decision prescribing the detention is rendered in accordance with the procedures provided for in Articles 135, 137-3, first paragraph and 464-1 and is based on the provisions of 1 °, 2 ° and 3 ° of Article 144. It is enforceable by provision. .
When the accused is in pre-trial detention, the judgment on the merits must be rendered within two months of the day of his first appearance in court. In the absence of a decision on the merits at the end of this period, the pre-trial detention is terminated. The defendant, if he is not detained for another reason, is automatically released.
When the provisions of the second paragraph of article 397-1 have been applied, the period provided for in the previous paragraph is extended to four months.
In the event that the accused is sentenced to imprisonment without suspension, the court seised pursuant to Articles 395 et seq. May, whatever the length of the sentence, order, according to the elements of the case, the placement or continued detention by specially reasoned decision. The provisions of articles 148-2 and 471, second paragraph, are applicable.
The court rules within four months of an appeal against the judgment rendered on the merits lodged by the detained defendant, failing which he, if he is not detained for another cause, is automatically released. .
If the court considers it necessary to issue an arrest warrant, the provisions of article 465 are applicable, regardless of the length of the sentence imposed.
In all the cases provided for in this paragraph and by way of derogation from the provisions of Articles 550 et seq., Witnesses may be summoned without delay and by any means. When they are verbally requested by a judicial police officer or a law enforcement officer, they are required to appear under the penalties provided for in Articles 438 to 441.
The provisions of articles 393 to 397-5 are not applicable neither to minors, nor in matters of press offenses, political offenses or offenses for which the prosecution procedure is provided for by a special law.