General criminal law

These are general principles of criminal law.

INFRINGEMENT

Any action or behaviour that contravenes the law is punishable by law. The offence is defined by the penalty.

In principle, criminal penalties can only be imposed following a trial. There are exceptions:

• tickets (fine stamps)
• the Perben II bill and the concept of pleading guilty to reduce criminal penalties (negotiations on the sentence between the prosecution and the person who declares himself guilty).

When there is no trial, in principle there is consent between the prosecution and the person concerned. So the penalty can also be imposed with the consent of the person being punished, but if not, there is a right to a fair trial.

THE CRIMINAL PENALTY

Penalties vary according to the seriousness of the offence. Imprisonment is one of the criminal penalties, especially for felonies. But imprisonment can also be used for misdemeanours.

But the legislator is trying to find other means of punishment, such as fines. But other penalties are geared towards ensuring that offenders do not re-offend, such as professional and social bans and unpaid community service.

CRIMINAL PROCEEDINGS 

The primary purpose of a criminal trial is to determine whether an individual is innocent or guilty. If the latter, the trial is used to choose the most appropriate punishment.

To determine guilt :

• First phase: this takes place in front of the police or gendarmerie.
• The second phase is judicial if legal action is taken.

Police or gendarmerie investigation.

The police or gendarmerie establish that an offence has been committed or following a complaint or report from a third party.

Under the authority of the Procureur de la République (magistrate who represents the interests of the company), an investigation is requested by him.

Depending on whether the offence has just been committed or is older, the investigation will be a "flagrante delicto" or preliminary investigation.

At the end of the investigation, the investigators report the results to the public prosecutor, who decides whether or not to prosecute.

Initiating proceedings

It is the public prosecutor who refers cases to the criminal courts.

No further action is taken if there is insufficient evidence to proceed.

If there is sufficient evidence, the Public Prosecutor will initiate proceedings.

The direct victim of an offence (direct personal injury) may also bring a civil action for damages.

Victims can choose whether to take their case to the civil courts or the criminal courts. In the latter case, it is the victim who initiates the public prosecution, even though in principle this should be the responsibility of the public prosecutor.

Victims can file a civil party complaint.

Finally, if the person who committed the offence is known, the victim can summon that person to appear in court.

The judicial phase

For cases that have not been solved, or for the most serious or sensitive cases, a judicial investigation is required.

The examining magistrate will look for evidence both for and against the accused.

The matter has been referred to it by the public prosecutor (either by way of an introductory indictment or by way of a civil party complaint against X or a named person).

At this stage, there is no defendant to the criminal action.

When the examining magistrate finds serious and corroborating evidence, he or she puts the individual concerned under investigation.

The defendant is always presumed innocent.

This indictment triggers the rights of defence, but not only for the defendant.

An assisted witness is not a defendant, but if suspicions are raised against him, he will be given the rights of defence.

While freedom is the principle, the accused may be remanded in custody.

The legislator is doing everything possible to limit these detentions.

Under the terms of the hearing, the judge can take two types of decision:

• If the judge finds that there are insufficient charges against the defendant, he will dismiss the case. The presumption of innocence is strengthened
• Consider that there are sufficient charges and refer the case to a court for trial:
• If the examining magistrate considers that this is a offence he will refer the case to the criminal court. Most offences will not have been investigated, except for the most serious or those committed by minors.

For the contraventionsIn this case, there is no investigation, but the case is heard directly by the police or local court.

• If the examining magistrate considers that this is a crimeHe will refer the case to an assize court.