Based on a civil law system, the main feature behind the processing of procedures for implementing criminal justice in France revolves around the functioning of the Investigation Magistrate, who as a sort of judge is translated in French as the “Juge d’instruction”. This Investigation Magistrate oversees cases of serious criminal nature and is completely independent from the political systems. The prosecution on the other hand, does not have this liberty and works for and under the supervision of the judiciary ministry.
The main responsibility of the Investigative Magistrate is to learn the true facts based on hearing witnesses and suspects, he can also order searches and have the assistance of the judiciary police when required for investigations. While his role is not of a prosecutor, the Investigative Magistrate has the authority to get incriminating and exculpating evidences (translated as “a’ charge et a’ decharge” in French) based on this, he may decide if there is validity in the case against the suspect for deferral to a tribunal or a court.
While both the prosecution and the defense have the rights to request further actions deemed necessary in the case, the Investigation Magistrate has the options of agreeing or not agreeing with these requests. Naturally, like in most other countries with proper judiciary systems, both the prosecution and the defense have the right to appeal against the decisions taken by the Investigation Magistrate before the Appeals Court. Victims thus have direct access to justice only after their cases have been deferred to the Appeals Court by the prosecutor to challenge his decision.
A point to be noted here is that the Investigation Magistrates do not have the authority to investigate and initiate cases on their own. This mandate lies with the prosecution and it is only after their initiation of a case before the Investigation Magistrate that the course of justice sets forth up to the allowed levels of jurisdiction empowered with the Investigation Magistrate. Unlike in the past, the Investigation Magistrates can not recommend defendants in cases being supervised for remand without the approval of other judges.
Furthermore, an Investigation Magistrate is also not allowed to sit in cases deferred by him to the tribunals and courts and is prohibited from all future cases where the same defendants may be involved. However, if victims or third parties file a direct complaint with the Investigation Magistrate with relevance to the special circumstances provisions provided by the law, he can initiate an investigation after having sent the complaint to the District Prosecutor and after having taken his submission into account.
It is only after having received this submission that the Investigations Magistrate can refuse to carry out any investigation if he feels convinced that the facts of the evidence do not qualify any further lawful prosecution. It is often that during the judicial inquiries the Investigation Magistrate cancels the proceeding on the grounds of the evidence being weak or inconclusive and deciding there and then in favor of the defendant without deferral of the cases to the tribunals and courts.
The plea and plea bargaining concept is new to the judiciary system of France where only less than a year prison sentences can be proposed, thus serious cases continue to be decided in the courts. It is in these tribunals and courts where the cases are tried for convictions of the suspects with arguments and counter-arguments by the prosecution and the defense based on evidences presented that the judge or the jury draws conclusions and decide on the verdict.
While the serious criminal cases are tried namely by the “courts or correction”, which are the “tribunaux correctionnels” in French, the “police courts” or “tribunaux de police” in French try the minor offense cases, with appeals against decisions from these courts referred to the “courts of appeal” or “cours d’appel” in French with further onwards appeals being made as far as to the highest court of France, which is the “supreme court” or “cour de cassation. ” Current laws in France give people the right to appeal against the rulings of the police courts.
The Code of Criminal Procedure sheds some light on this issue in Articles 547 and 548: “Article 547 (Act no. 2004-204 of 9 March 2004 art. 142 I Official Journal of 10 March 2004) Appeals against police court judgments are taken to the appeal court. The appeal is filed within the time limits provided for in articles 498 to 500. This appeal is investigated and tried in the same form as appeals filed against judgments made in misdemeanour matters. The court is, however, composed simply of the president of the correctional appeal court, sitting as a single judge.
Articles 502 to 504, paragraphs 1 and 2, are applicable to appeals filed against police court judgments. Article 548 (Ordinance no. 60-529 of 4 June 1960 Article 8 Official Journal of 8 June 1960) The prosecutor general files his appeal by serving it within two months from the day the judgment is passed either upon the defendant or upon the party liable under civil law for the offence. ” (See Appendix A) Background to Criminal Appellate Procedure/Process in France The current French Constitution has many constitutions and amendments in it. Included in the final format is the 1958 Constitution.
.Its Preamble refers to the Rights of Man and the principle of national sovereignty expressed in the 1789 Declaration and the Preamble to the 1946 Constitution. The legislative powers to enact laws rest with the Parliament of France in the capacities of civil rights, nationalities, status, capacity of persons, crime and its procedures, currency, inheritances and taxation with all other laws being regulated by the executive. By publishing these laws through the government publication known as the “Journal Officiel”, these prescribed laws come into effect.
Included in this journal are also details of the parliamentary debates and proposed bills that serve as updates for the interest and information of all concerned. The other laws of persuasive nature relate to the court decisions and legal writing, “jurisprudence and doctrine”. The public laws include questions with regard to the government, constitution, public administration and importantly criminal law and are distinct to the private laws inclusive of justice between private persons and corporations. History behind Criminal Appellate Procedure/Process in France
France has one of the most complex and checkered histories pertaining to criminal procedures in its legal system. Its criminal law based on the Napoleon code of 1810 was one of the oldest systems of law that was applicable till 1992, where after reforms and revisions were made. In fact these reforms brought the whole of the French judiciary system under scrutiny and drew national and international interest with regard to its comparative difference with other criminal laws. In historical terms, prior to the 12th century, the system relied on persons committing acts of crimes formerly being accused by witnesses or an inquest before being tried.
As the consequences for making accusations that could not be proved, were severely harsh in nature, few witnesses volunteered to make accusations so as to avoid implicating themselves in any way. This adverse system with ordeals and combat being used as tools of primitive justice was also an unreliable manner to reach just decisions. These systems can in modern times be viewed with abhorrence ways for seeking the truth and settling disputes. The medieval inquisition in the 12th century began the reforms in criminal procedures, with Pope Innocent III in 1198 issuing a series of decrees that transformed the judiciary system.
With the introduction of new inquisitional processes, the magistrates of those times no longer required formal accusations to summon witnesses for interrogations for the trial of defendants with secretive testimonies of witnesses also being admissible in the criminal procedures. This form of judicial undertakings were considered as the Medieval category with the clergy being forbade to conducts trials through ordeals and combats, resulting in this methods becoming an acceptable and domineering system of those times in France and overall in parts of continental Europe.
The major developments towards the modernized criminal procedures system began in the 19th century leading to the current levels with limitations to the powers of the investigators and increased rights of the defendants. The Code civil des Francais, which in English translates as the Napolneonic Code was established and enforced in the March of 1804 on its 21st day as the French Civil Code and is considered amongst the first successful codification system of the legal system and they also influenced the development of similar laws in various other countries.
With its clarity and easy accessibility, the law impact helped to set up proper rule of law. Based on existing French and Roman law, it followed the “Justinian’s Corpus Juris Civils” system for implementing civil law for personal status, property and acquisition of property with the intent of reforming the French legal system in accord with the French Revolution and avoiding feudal and royalty laws deemed contrary to people’s interests. The French law also gives detainees the right to appeal as stated in Article 503 of the Code of Criminal procedure: “Article 503
Where the appellant is detained, the appeal may be filed by means of a statement made to the prison governor. This statement is recorded, dated and signed by the prison governor. It is also signed by the appellant. If the latter cannot sign, this is noted by the prison governor. This original document or a copy of it is sent forthwith to the court office of the court which made the contested decision. It is transcribed into the register provided for by the third paragraph of article 502 and attached to the instrument drafted by the clerk. ” (See Appendix A)
Prior to the introduction of the Code system, laws depended on old local customs with selective exemptions, privileges and personalized special charters by the kings, lords and the powerful. The French Revolution abolished these feudal vestiges and the different legal systems working in different parts of France so that they would all came under the umbrella of a unified single code system. It was during the Napolean era that France began to stabilize after experiencing unrestful and turmoil filled periods of war to be able to project itself in a purposeful and serene manner.
Some of the ancient parliamentarian based laws practiced in France tended to be enforced through the legislative roles the judges adapted to protest against the excesses and the royal decision that clashed with their privileges particular class of society. This resulted in the French Revolution taking a negative view of these practices and recommending drastic changes in the laws. The Napoleonic Code therefore curtailed the roles of judges to only pass judgment on matters within the domain of the law and legislation and the judiciary system.
The judges were also prohibited from assuming authority whereby they could enact any new judicial laws like they had done in the past. However, existing gaps in the laws, rules and regulations had to be prescribed to, and as there were no set binding precedents, the decisions by courts in some cases were considered more or less equivalent as “case laws”. Some Facts and Statistics The French Penal Code of 1994 was Amended on the 1st of January, 1999, and was translated by Edward A. Tomlinson; with an introduction.
The most recent translation at the Library is The French Code of Criminal Procedure, translated by Gerald L. Kock and Richard S. Frase; with an introduction by Richard S. Frase. Rev. ed. (Littleton, Colo. : F. B. Rothman, 1988). KJV 8412 . 41957 . A52 1988. See also Comparative Criminal Procedure” (KJC 9405 . C66x 1996)” Certain important provisions have been established regarding the rule of law that can be applied after duly being promulgated and officially published. Thus there is no risk of any secret laws being enacted to give authorization for the enforcement of their application prior to the laws being enacted.
While the laws restricts judges from refusing to impart justice on the grounds of its insufficiency, it encourages them to interpret the law from its existing formats. However, at the same time it also prohibits the judges from passing generalized judgments towards legislative values. While the French laws edict the supremacy of the husband with regard to all family matters consisting of the wife and children, it extends liberal basic freedom in allowing marriages to be annulled with ease, and by mutual consent even easier.
Civil claims are considered as parts of criminal prosecutions for causes of damage whether bodily, materialistic or moral with victims being able to claim compensation from perpetrators. Articles 496 and 497 of the Code of Criminal Procedure describe the rulings of the appeals of court in misdemeanour matters. “Article 496: Judgments made in misdemeanour matters may be challenged by appeal. The appeal is brought before the appeal court. Article 497: (Act no. 83-608 of 8 July 1983 art.
8 Official Journal of 9 July 1983 in force 1 September 1983) The right to appeal belongs to: 1 the defendant; 2 the person liable under civil law but in respect of civil claims only; 3 the civil party, in respect of his civil claims only; 4 the district prosecutor; 5 governmental agencies, in cases where they have prosecuted; 6 the prosecutor general attached to the appeal court. ” (See Appendix A) In the Administrative Courts known as the “Conseil d’Etat”, proceedings in litigation are more inquisitions and conducted in writing.
These proceeding involve the plaintiff, the court and the concerned administrations or public services to correspond with each other through a written format till the case reaches a point to warrant a lawsuit in a court. The concerned parties in such cases are not required to make personal court appearance as the methods adopted in these courts are for the most parts, consistent of formal procedures and technicalities. On the other hand, cases in the French courts are based on proceedings that are dependent on the principle of oral hearings by the trial judge and from the key witnesses to the cases.
Court Systems Structuring The French Court system is divided in the following two bodies: 1. At the top of the judiciary courts is the Cour de Cassation or the Supreme Court of Appeals and 80 judges for this court are appointed by the President of France. There are a further 35 courts of appeals, 181 tribunaux de grande instance, and 478 tribunaux d’instance. 2. At the top of the Administrative Courts is the Council of State or Conseild’Etat, and there are 8 cours administratives d’appek with another 36 tribunaux administratifs
Cases and Appeals Articles 712-11 and 712-12 of the Code of Criminal Procedure provide some information about the procedures practiced in the case of appeals. “Article 712-11 Decisions of the penalty enforcement judge and the penalty enforcement court may be challenged by means of an appeal by the convicted person, the district prosecutor or the prosecutor general, within: 1° twenty-four hours for the rulings mentioned in articles 712-5 and 712-8; 2° ten days in the case of the judgments mentioned in articles 712-6 and 712-7. Article 712-12
Appeals against the orders mentioned in articles 712-5 and 712-8 are brought before the president of the penalty enforcement chamber of the appeal court, who rules by means of a reasoned decision after considering the written observations of the public prosecutor’s office and of the convicted person or his advocate. ” (See Appendix A) The Cour d’Assises i. e. Assize Court is consistent of a jury and this court is responsible to charge individuals accused of felonies, according to the French law felonies are acts of crime for which individuals can be condemned for more than years of imprisonment.
This court is headed by a senior judge, also called as the president of the court and consists of 3 judges and 9 jurors. In cases where appeals have been filed, the number of jurors is increased to 12. Although jurors are drawn randomly from the electoral records, the defense and the prosecution have the right to refuse some jurors without giving any reason or justification. A special children’s court know as the Cour d’Assises des Mineurs judges felonies committed by teenagers who are older than 16 years.
A special Cour d’Assises judges cases related to terrorism and illegal drug trafficking and in such cases a jury is not included, instead 7 judges are involved and on appeal of such cases their number is raised to 9 judges. The decisions of the Assize Courts can be challenged too as mentioned in Article 380-1 of the Code of Criminal Procedure. “Article 380-1 Decisions by the assize court in the first instance imposing convictions may be appealed from as provided for by the present chapter. This appeal is brought before another assize court, nominated by the criminal chamber of the Court of Cassation.
This assize court proceeds to re-examine the case according to the terms and the conditions set out in chapters II to VII of the present title. The court rules without the presence of jurors in the following cases: 1 Where the accused, committed to the assize court solely for a misdemeanour related to a felony, is the only appellant; 2 Where the appeal from the public prosecutor’s office against a conviction of an acquittal concerns a misdemeanour related to a felony, and no appeal has been lodged against the felony conviction.
” (See Appendix A) While in the past appeals could only be filed in the Cour de cassation which is the Supreme Court, since January 1, 2001 appeals can be filed with regard to the question of facts another Cour d’assises where the jury is extended to rehear the case till they are fully retired. Appeals however, are possible to the Cour d’cassation on procedural grounds. While the Cout de Cassation is at the apex of the pyramid, there are two characteristics that singles out this court a being only one.
And secondly this court’s purpose is not to rule on the merits of appealed cased but to confirm whether the law is correctly applied on the facts already assessed in the decisions referred to it. This is why the Court of Cassation does rule on the disputes resulting in the decisions referred to it, but on those decisions themselves. In the civil cases appeals are lodged by a declaration to the Registry of the Court of Cassation (except for electoral cases whey they can be lodged by the concerned party or it’s authorized representative).
In civil cases the time-limits for filing appeals are within two months, of the challenged decision, except as otherwise provided with effect from notification. While In criminal cases the declaration of appeal must be made to the registrar of the court having delivered the decision challenged within five days of its delivery. After an appeal has been registered with the Registry of the Court of Cassation, the next step is to file a memorial of application (memoire en demande), still called an amplificatory or supplementary memorial (memoire ampliatif), provided the case has not been disqualified .
Article 185 The district prosecutor has the right to lodge an appeal before the investigating chamber against any order made by the investigating judge or the liberty and custody judge. This appeal must be filed within five days of the notification of the decision and is made by a statement at court office at the district court. In the event of an appeal by the person under judicial examination against being indicted, provided for in article 181, the district prosecutor has an incidental time limit of five extra days at his disposal, running from the time of the person under judicial examination’s appeal.
In every case the right to appeal also belongs to the public prosecutor. He must notify the parties of his appeal within ten days of the ruling by the investigating judge or the liberty and custody judge. (See Appendix A) Arguments and Counter Arguments Some of the stronger arguments and counter arguments that can be made about the criminal appellate procedure/process in France are the following: The Napoleon Code in its presentation of a new criminal code according to some views defined crimes with more appropriation while outlawing crimes based on superstition, feudalism and despotism.
Wisely or unwisely, religion based crimes like blasphemy, superstition, heresy, sacrilege same-sex acts and witchcraft etc. were not listed in this criminal code but could be considered as decriminalized in wisdom. According to the “Declaration of the Rights of Man and of the Citizen” of the French Revolution, suspects had to be presumed innocent unless declared guilty by the courts of law, therefore the possibility of arrest and remand on arbitrary grounds could be understood as being violations of law as remand continued to be considered as a normal procedure for severe crime and murder suspects.
Therefore the possibility of lengthy remand periods on de facto presumption of guilt was a reason for the criticism. In cases where the Investigation Magistrate receives potential immunity cases, they are referred to the Ministry of Foreign Affairs that deals with such issues and on the recommendations of the Ministry of Foreign Affairs the Investigation Magistrate decides whether to proceed with the case further or not.
While crimes against humanity and genocide under the prevailing laws are not subject to statutes of time limits, felonies including crimes of torture are subject to limitation periods of ten years from the day of the commission of the crimes. The code for personal attiring along nationalistic lines infringe with the codes advocating freedom of expression and religious beliefs. As some of the new rules being implemented like, not allowing one group of people within the French society to wear headgear in a while allowing another group to wear theirs.
An example of this is the prohibition for Muslim girl students to wear headscarves at schools, while hats, caps and different headgear can be worn by the common men, women and religious society members like priests. Issues like these could be argued against or for, depending of which side of the fence one was. Conclusion A short and to the point logical conclusion to the criminal appellate procedure in France amounts to, “the legal process for adjudicating if someone has or has not violated criminal law”.
While the prevailing laws applicable in modern times perhaps give too much power to the prosecution in comparison to the past, laws have evolved to the states where justice has overall become more just for all. The guillotine blades have been allowed to rest and finally rust. The rights to human dignity are being respected and the individuals are not guilty unless proven guilty. In many aspects the process and procedures for implementing justice in France may be different from the rest of the world, but it has over time improved for the stability and good of France and its people.
The philosophy of the judiciary system of France is like in all other countries of the world, for the serving its people in the fairest way possible. And as stated by Bonaparte, the judging of civil and criminal cases by the courts should be based on similar lines, so as to give more prestige to the courts and all. How much more fairer could justice get? References Assemblee nationale ~ Les deputes, le vote de la loi, le Parlement francais http://www. assemblee-nat. fr/english/8ab. asp Accessed, February 19, 2007 Avalon Project: Declaration of the Rights of Man – 1789 http://www.
yale. edu/lawweb/avalon/rightsof. htm Accessed,19 February 2007 Cour de cassation – Conception realisation http://www. courdecassation. fr/article9256. html (Accessed: 8 March, 2007) GlobaLex – Researching French Law Guide http://www. nyulawglobal. org/globalex/France. htm Accessed, February 19, 2007 Law of France – UofM Law School http://www. law. umn. edu/library/tools/pathfinders/france. htm Accessed, February 19, 2007 Legifrance – Le service public de l’acces au droit http://www. legifrance. gouv. fr/ Accessed, February 19, 2007 Legifrance – Le service public de l’acces au droit
http://www. legifrance. gouv. fr/html/frame_jo. html Accessed, February 19, 2007 Legifrance – Le service public de l’acces au droit http://www. legifrance. gouv. fr/html/frame_codes1. htm Accessed, February 19, 2007 Not Available http://www. journal-officiel. gouv. fr Accessed, February 19, 2007 Preambule to the 27th of october 1946 Constitution – Website of the Office of the French President http://www. elysee. fr/elysee/anglais/the_institutions/founding_texts/preambule_to_the_27th_of_october_1946_constitution/preambule_to_the_27th_of_october_1946_constitution.
20243. html Accessed, February 19, 2007 Pays / Europe / France / Juridique http://www. strategic-road. com/pays/europe/france03. htm Accessed, February 19, 2007 Stephane Cottin and Jerome Rabenou, Researching French Law, May 2005 http://www. nyulawglobal. org/globalex/France. htm#Court (Accessed: 8 March, 2007) The Avalon Project : Declaration of the Rights of Man – 1789 http://www. yale. edu/lawweb/avalon/rightsof. htm Accessed, February 19, 2007 Appendix A SECTION XII APPEALS FILED AGAINST RULINGS BY THE INVESTIGATING JUDGE AND
THE LIBERTY AND CUSTODY JUDGE Articles 185 to 187-3 Article 185 (Ordinance no. 60-529 of 4 June 1960 Article 8 Official Journal of 8 June 1960) (Act no. 85-1407 of 30 December 1985 art. 31 Official Journal of 31 July 1985 in force 1 February 1986) (Act no. 87-1062 of 30 December 1987 Article 9 Official Journal 31 December 1987, in force on 1 March 1998) (Act no. 2000-516 of 15 June 2000 art. 83 & 132 Official Journal of 16 June 2000) (Act no. 2000-1354 of 30 December 2000 art 26 Official Journal of 31 December 2000)
The district prosecutor has the right to lodge an appeal before the investigating chamber against any order made by the investigating judge or the liberty and custody judge. This appeal must be filed within five days of the notification of the decision and is made by a statement at court office at the district court. In the event of an appeal by the person under judicial examination against being indicted, provided for in article 181, the district prosecutor has an incidental time limit of five extra days at his disposal, running from the time of the person under judicial examination’s appeal.
In every case the right to appeal also belongs to the public prosecutor. He must notify the parties of his appeal within ten days of the ruling by the investigating judge or the liberty and custody judge. Article 186 (Ordinance no. 58-1296 of 23 December 1958 Article 1 Official Journal of 24 December 1958 in force on 2 March 1959) (Ordinance no. 60-529 of 4 June 1960 Article 2 Official Journal of 8 June 1960) (Act no. 70-643 of 14 July 1970 art. 5 Official Journal of 19 July 1970) (Act no. 72-1226 of 29 December 1972 Article 32-i Official Journal of 30 December 1972) (Act no. 81-82 of 2 February 1981 art.
57 Official Journal of 3 February 1981) (Act no. 83-466 of 10 June 1983 art. 18 Official Journal of 11 June 1983 in force 27 June 1983) (Act no. 84-576 of 9 July 1984 art. 14-i, 14-ii and 19 Official Journal of 10 July 1984) Updated 01/01/2006 – Page 73/278 CODE OF CRIMINAL PROCEDURE (Act no. 85-1407 of 30 December 1985 art. 32-i, 32-ii & 94 Official Journal of 31 July 1985 in force 1 February 1986) (Act no. 93-2 of 4 January 1993 art 44; Official Journal 5 January 1993, in force 1 March 1993) (Act no. 93-2 of 4 January 1993 art 234; Official Journal 5 January 1993, in force 1 March 1993)
(Act no. 93-1013 of 24 August 15 1993 art 14; Official Journal 25 August 1993, in force 2 September 1993) (Act no. 2000-516 of 15 June 2000 art. 32, 82, 83 & 132 Official Journal of 16 June 2000) (Act no. 2002-1138 of 9 September 2002 Article 39 Official Journal of 10 September 2002) (Act no. 2004-204 of 9 March 2004 art. 107 I Official Journal of 10 March 2004) The right to appeal against the orders and decisions set out by articles 87, 137-3, 139, 140, 145-1, 145-2, 148, 179, third paragraph, and 181 is open to the person under judicial examination.
The civil party may file an appeal against orders refusing the investigation, against discharge orders and against orders affecting his civil claims. However, in no case may he appeal against an order or the provisions of an order made in respect of the detention of the person under judicial examination or in respect of judicial supervision. The parties may also file an appeal against an order by which the judge has ruled upon his jurisdiction, either on his own motion, or upon an objection made to his jurisdiction.
The appeal filed by the parties as well as the application provided for in the fifth paragraph of article 99 must be drafted in the conditions and pursuant to the rules provided for in articles 502 and 503, within ten days of the notification or service of the decision. The investigation case file, or its copy made in accordance with article 81, is transmitted with the reasoned opinion of the district prosecutor to the public prosecutor, who proceeds as stated under article 194 onwards.
If the president of the investigating chamber finds that an appeal is filed against an order not covered by paragraphs 1 to 3 of the present article, he makes on his own motion an order ruling the appeal inadmissible and such order is unappealable. The same applies to appeals filed against any rulings made by an investigating judge after the time limit provided for in the fourth paragraph of the present article, or where an appeal has become groundless. The president of the investigating chamber is also competent to rule on the withdrawal of an appeal made by the appellant.
Article 186-1 (Act no. 72-1226 of 29 December 1972 Article 32-ii Official Journal of 30 December 1972) (Act no. 85-1407 of 30 December 1985 art. 33 & 94 Official Journal of 31 July 1985 in force 1 February 1986) (Act no. 87-1062 of 30 December 1987 Article 9 Official Journal 31 December 1987, in force on 1 March 1998) (Act no. 93-2 of 4 January 1993 art 45; Official Journal 5 January 1993, in force 1 March 1993) (Act no. 2000-516 of 15 June 2000 art. 22, 83 & 132 Official Journal of 16 June 2000)
The parties may also lodge an appeal against the orders set out in the ninth paragraph of article 81, in articl