Английская Википедия:French criminal procedure

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Шаблон:Short description Шаблон:Expand French Шаблон:Use dmy dates

French criminal procedure (Шаблон:Lang) focuses on how individuals accused of crimes are dealt with in the French criminal justice system: how people are investigated, prosecuted, tried, and punished for an infraction defined in the penal code. These procedural issues are codified in the French code of criminal procedure (Шаблон:Lang).Шаблон:Sfn It is the procedural arm of French criminal law.

French criminal procedure has roots in customary law under the Ancien regime under Louis XIV, and was first codified with the Шаблон:Ill (Шаблон:Lang). This was replaced in 1959 with the Code of criminal procedure (Шаблон:Lang; CPP).

The main groups involved in the administration of criminal justice in France are the courts, the Public Ministry (France), and the judicial police. Criminal courts are structured in three levels, with the Police court and the Correctional court in the first instance; appeals are held by the Cour d'appel and the Cour de Cassation.

Courts involved include the police court and the correctional court at the first level or instance, and the Cour d'Appel and Cour de Cassation at the second and third instance. Traditionally, the legal system for administering criminal justice in France has been and continues to be the inquisitorial system, but more and more, aspects of the adversarial system, such as plea bargaining, has been included as well.

The typical stages of criminal procedure include: reporting an offense, police investigation, prosecution, judicial investigation, trial, and sentencing. During the investigation phase, various powers are available to assist, such as: Шаблон:Lang (remand in custody); arrest, search, and others, all laid out in specific sections of the code.

Terminology

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Two meanings

In France, the term criminal procedure (Шаблон:Lang-fr) has two meanings; a narrow one, referring to the process that happens during a criminal case as it proceeds through the phases of receiving and investigating a complaint, arresting suspects, and bringing them to trial, resulting in possible sentencing—and a broader meaning referring to the way the justice system is organized into the actors and institutions involved, chiefly the police, the prosecutors, the Public Ministry, the courts and judges, and their roles and interactions.Шаблон:Sfn

Criminal law and criminal procedure

Criminal law (Шаблон:Lang) deals with an individual's rights and obligations under the law, as codified in a penal code. Under French criminal law, the penal code (CP) defines what acts (or omissions) are punishable. Criminal procedure focuses on how individuals accused of crimes are dealt with in the criminal justice system: how people are investigated, prosecuted, tried, and punished. In France, these procedural issues are codified in the Code of criminal procedure (Шаблон:Lang).Шаблон:Sfn

Codification

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Sources

Шаблон:Wikisource The sources of criminal procedure are different than the sources of civil law. The domain of criminal procedure is the loi (lit., "law", or "statutes"), in contradistinction to civil law, which are Шаблон:Lang (regulations). Practically speaking, the main difference is that the Constitution specifies in article 34 that criminal procedure is part of the Шаблон:Lang, and thus may not be handled by Шаблон:Lang but reserved to acts of Parliament, thus demonstrating the privileged status of criminal procedure within the French legal system, compared to civil law.Шаблон:Sfn

History

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The 1810 Penal Code

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French criminal procedure has roots in customary law under the Ancien regime under Louis XIV. The Criminal Ordinance of 1670 dealt with the jurisdiction of the national police force the Maréchaussée.Шаблон:Sfn

Major developments included laws passed around the time of the French Revolution in 1791 and 1801,Шаблон:Sfn the Шаблон:Ill (Шаблон:Lang),Шаблон:SfnШаблон:Sfn and two years later, the Penal code of 1810. Шаблон:Sfn The 1897 law on Criminal defense followed. Шаблон:Sfn

Modern criminal procedure was developed at the end of the Fourth Republic, and codified with the promulgation of the provisional title and volume I of the new code in December 1957,Шаблон:Sfn legifrance which came into force in 1958Шаблон:Sfn and in 1959 with the Code of criminal procedure (Шаблон:Lang).

Organization

Шаблон:Further The main groups involved in the administration of criminal justice in France are the courts, the Public Ministry, and the judicial police.Шаблон:Sfn

Criminal courts

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Organization of the French judiciary for criminal matters.

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Criminal courts in France are one of two kinds of "ordinary courts" (ordre judiciaire), which handle both criminal and civil litigation.Шаблон:Sfn

At the bottom of the hierarchy of ordinary courts are the courts of minor jurisdiction,Шаблон:Sfn which, on the criminal law side, may sit as police courts (Шаблон:Lang) to hear summary offenses (such as traffic violations, limited assault, breach of peace).Шаблон:Sfn (A particularity of the French judiciary is that the same court may also sit as a civil court (Шаблон:Lang) on other occasions to hear minor civil cases.Шаблон:Sfn)

Next are the courts of major jurisdiction.Шаблон:Sfn When the court hears Шаблон:LangШаблон:Sndless serious felonies and misdemeanorsШаблон:Sndit is called a Criminal court (sometimes, "Correctional court"; Шаблон:Lang),Шаблон:Sfn (The major jurisdiction courts may also sit to hear civil cases as a Civil Court.Шаблон:Sfn or as a Juvenile Court.Шаблон:Sfn)

Public ministry

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Judicial police

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Background

Legal system

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Traditionally, the legal system for administering criminal justice in France has been and continues to be primarily the inquisitorial system. Chief characteristics include secrecy (not open to the public), that it is primarily written and not oral, that judges play an important role in the gathering of evidence and investigation of the case, and that parties to the case don't necessarily have a right to be heard.Шаблон:Sfn Adversarial systems, on the other hand, emphasize transparency, oral and written expression, placing the parties involved front and center in prosecuting or defending the case, with the judge limited to the role of a referee adjudicating points of law and ensuring fair play.Шаблон:Sfn

In the inquisitorial system in France, the courts and judiciary come into the process at an earlier stage than in adversarial systems such as in England and Wales, or in the United States, and are involved with both investigation (Шаблон:Lang) and interrogation. Conversely, the police are less involved with carrying out an investigation than in countries with an adversarial system. A separate set of judges and courts are involved in trying the case, so that there are two separate systems of courts and judges: one for the investigative phase (the Шаблон:Lang), and a second set for trial (Шаблон:Lang).Шаблон:Sfn

The two investigation phases in French criminal procedure are the preliminary police investigation, and the judicial one carried out by the investigating judge, follow the inquisitorial system, and focus on creating a written dossier including a list all the procedures carried out, witness and expert statements, and the accumulated evidence. Late in the Fifth Republic, some additional protections for the rights of parties involved have added some aspects of the adversarial system to the mix.Шаблон:Sfn

Sources

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Sources of criminal procedure are primarily Шаблон:Ill of the Constitution, and go back to the 1789 Declaration of the Rights of Man and of the Citizen. International sources include the European Convention on Human Rights (ECHR), which have an influence due to article 55 of the Constitution which requires adherence to international treaties such as the ECHR.Шаблон:Sfn

Customary law

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Some gaps in statutory law and case law rely on uncodified, customary law from the Ancien regime. Such cases had strict constraints, and had to be cocnsidered as binding by the people who applied them, be widely accepted in a particular profession, and had to be consistently used over a long period of time.Шаблон:Sfn

Principles

A criminal proceeding is guided by a set of principles, which have as a goal to ensure a fair trial. The most important of these principles include the presumption of innocence, the rights of the defense, and the timeliness of the proceedings. These principles embody the constitutional block and have been endorsed and extended by the European Court of Human Rights, and the June 2000 law amended the code of criminal procedure to increase guarantees of a fair trial, presumption of innocence, speedy proceedings, and the right to appeal.Шаблон:Sfn

Presumption of innocence

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Major principles include the Шаблон:IllШаблон:Sfn This was strengthened in 2000 with additional legal limitations placed upon the freedom of the press in order to protect that presumption, as added to article 35 of the law of 1881 by the Шаблон:Ill of 15 June 2000,Шаблон:Sfn legifrance and elevated to a principle of constitutional force (principe à valeur constitutionnelle) by the Constitutional Council in 1989.[1]

The presumption of innocence is not total, and in some cases, the suspect must prove their innocence, and if they fail, conviction is the default. For example, anyone who fails to demonstrate sufficient financial resources to support their standard of living and who resides with someone who engages in prostitution, is assumed to be a pimp according to article 255-6 of the penal code, unless they furnish proof to the contrary.Шаблон:SfnШаблон:Sfn legifrance

Benefit of the doubt

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The benefit of the doubt is closely related to the presumption of innocence, as a procedural application of it. A differencce is that benefit of the doubt is not enshrined in either the penal code or in the code of criminal procedure.Шаблон:Cn

Right of defense

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Criminal defendants have rights, such as the right to have an attorney while in police custody, the right to access their police file and to request additional investigations, to object, and to file appeals. Although there isn't a statute that codifies these rights, they are recognized by the law. Judicial texts refer to them as a "fundamental right of constitutional dimension",Шаблон:Sfn such as a 1995 text from the Cour de Cassation.Шаблон:Sfn legifrance Violations of the right to defense will nullify the proceedings.Шаблон:SfnШаблон:Sfn legifranceШаблон:Sfn legifrance

Timeliness

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Another principle of fairness of the proceedings is "reasonable speed" (Шаблон:Lang). In 1945, judicial inquiries under the aegis of an investigating judge lasted three months; in 1970, nine months, and in 2008, eighteen months. Part of this is likely due to the fact that most investigations are simpler and no longer handled by investigating judges, and prosecutors now bring the most complex cases to the investigating judges. and they take longer to investigate.Шаблон:Sfn

Stages

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There are six stages, reporting the offense, the preliminary police investigation, initiating prosecution of the accused, the judicial investigation, the trial, and enforcement of the judgment.Шаблон:Sfn In many cases, the investigating judge at their discretion may delegate the second investigation phase to the police as well.Шаблон:Sfn

Reporting an offense

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A complaint (plainte) by a victim or a law enforcement official, or a denunciation (dénonciation) by a third party is the initial step in launching a criminal investigation.Шаблон:Sfn The report of an offense is usually made to the police, but can also be made directly to the public prosecutor's office (Шаблон:Lang), which acts on reports from either the police or from the victim.Шаблон:Sfn

Once a criminal proceeding (Шаблон:Lang) has been initiated in the criminal courts, the victim may also pursue a civil action (partie civile) for damages resulting from the criminal offense to obtain compensation for his or her loss. This is a specific type of procedure in which a criminal proceeding and a civil proceeding are combined, namely when a criminal prosecution also has a civil portion involving Шаблон:Ill attached to it.Шаблон:Sfn

Police investigation

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Criminal procedure starts with the investigation phase. The purpose is to gather initial evidence before the prosecution begins.Шаблон:Sfn

The investigation has two parts: the preliminary police investigation (Шаблон:Lang) and the in-depth investigation (Шаблон:Lang) under the supervision of the court.Шаблон:SfnШаблон:Sfn These two phases take place in secret, in order to protect the accused, who is not yet guilty under the presumption of innocence, and to protect the judicial process. This implies some limitations on the freedom of the press, and is codified in article 11 of the CPP.Шаблон:SfnШаблон:Sfn legifrance. The secrecy only applies to those taking part in the investigation: police, lawyers, experts, clerks, and others. However the defendant, the victim, and other witnesses are not bound by secrecy, and may speak to anyone, including journalists. Leaks may hurt the search for justice, so the law tries to limit it by the notion of concealmentШаблон:SfnШаблон:Sfn legifranceШаблон:Sfn legifranceШаблон:Sfn legifrance (Шаблон:Lang).

The preliminary police investigation takes place under supervision of the public prosecutor's office (Шаблон:Lang).Шаблон:Sfn legifrance The police charged with the investigation may be either of the two national police forces in France, the National Police or the Gendarmerie.Шаблон:Sfn

In this phase, the police make inquiries in order to determine if a crime has been committed, and attempt to find a suspect.Шаблон:SfnШаблон:Sfn There are two national police forces, the National Police, who act in urban areas, and the gendarmes in suburban and rural areas who report to the Ministry of Defense. Police are barred from taking part in the commission of any offense, and thus entrapment is off the table, although there are exceptions for drug and customs offenses.Шаблон:Sfn

There are two types of police investigations: ordinary,Шаблон:Sfn legifrance and expedited. The latter require certain special conditions to be met, and confer increased powers upon the police.Шаблон:SfnШаблон:Sfn legifrance Expedited and preliminary investigations share two features: they can take individuals into police custody for a period of 24 hours (renewable once; or four days for terrorism and drugs), and they are obliged to issue reports (procès-verbaux) to the public prosecutor, who will make the decision whether to carry on with the process.Шаблон:Sfn

In either type of investigation, police have recourse to Шаблон:Slink.Шаблон:Sfn

Expedited

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An expedited investigation (Шаблон:Lang-fr) is the most frequent type of police investigation,Шаблон:Sfn and can be carried out if suspects are caught red-handed, or in a private home when committing the crime, or in possession of incriminating evidence in the immediate aftermath of the crime.Шаблон:Sfn legifrance Police have increased powers in expedited investigations, including the power of search and seizure without the consent of the owner (with a few exceptions like diplomatic residences). Some locations require a search to be conducted by a judge, including doctor and attorney offices, offices of press and the media, and others.Шаблон:SfnШаблон:Sfn An expedited investigation can only be carried out for Шаблон:Lang and for Шаблон:Lang.Шаблон:Sfn

Preliminary

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When the conditions are not met for an expedited investigation, then preliminary investigation (Шаблон:Lang; also "ordinary investigation") is carried out. In a preliminary investigation, police have only two coercive powers: to summon a witness to the police station for questioning,Шаблон:Sfn legifrance or to take a suspect into custody.Шаблон:Sfn legifranceШаблон:SfnШаблон:Efn Search and seizure require the consent of the person involved, and there is no power of arrest. There is an exception in terrorism cases which may permit search and seizure in preliminary investigations, and requires sign-off by a judge of a Шаблон:Lang.Шаблон:Sfn legifranceШаблон:SfnШаблон:Sfn

The investigations at this stage are carried out by the officers of the Judicial police (Шаблон:Lang; OPJ), who operate under the supervision of the Public prosecutor's office.Шаблон:Sfn

Prosecution

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Once the police investigation is completed, the dossier is forwarded to the public prosecutor's office.Шаблон:Sfn The public prosecutor is the magistrate in charge of the public prosecutor's office (Шаблон:Lang). He receives complaints and reports, directs investigations, decides on prosecutions and ensures that the law is enforced. The victim may also apply directly to the public prosecutor's office.Шаблон:Sfn

At this point, the prosecutor has considerable discretion on whether to prosecute the case. The prosecutor may decide that there is insufficient evidence to continue, or that justice is best served by not proceeding. A check on this discretion, is that the victim has the right to summon the accused directly to appear before the court (citation directe}.Шаблон:Sfn

Prosecutorial discretion

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The principle of opportunity to prosecute (Шаблон:Lang) belongs to the Public Prosecutor's Office. It is a power that is conferred by article 40-1 of the French Code of Criminal Procedure.Шаблон:Sfn Legifrance

In France, the prosecutor has a lot of discretion on whether to take the case further, and the decision not to may be taken not only for weak cases, but even when the case is strong and the facts are certain, if the prosecutor judges that the common good is better served by not going further.Шаблон:Sfn The prosecutor may decide not to prosecute a case and instead to Шаблон:Ill.Шаблон:Sfn

This principle of prosecutorial discretion in France is more similar to what is seen in common law countries, and is distinguished from what happens in Germany, Italy, and Spain, where the decision to continue or not is based on the particulars of the case and must go forward if the circumstances require it. A unique feature of French law is that the victim can also make the decision to move forward with the case.Шаблон:Sfn

Alternatives

For two centuries, prosecutors in France faced one of two choices: prosecute, or dismiss the charges (Шаблон:Lang).Шаблон:Sfn Recent reforms have introduced alternatives which may allow the prosecutor to avoid a trial and still serve justice.Шаблон:SfnШаблон:Sfn

Defendants in a criminal case cannot plead guilty. A defendant may confess to a crime, but this becomes one more piece of evidence that can be used against them. Plea bargaining as known in common law countries does not exist.Шаблон:Sfn

For less serious offenses (délits), the legislature introduced reforms to criminal procedure in the 1990s that permit the prosecutor to close a case if the perpetrator accepts an alternative procedure;Шаблон:SfnШаблон:SfnШаблон:Sfn legifrance this has become know informally as the "third way" (Шаблон:Lang).Шаблон:Sfn The alternative disposition may be one of several possibilities, such as community service, payment of a fine to the national treasury, or enrolling in a treatment program. The goal is to serve justice, while avoiding the hearings required in a formal trial. Other West European countries have very similar arrangements. If the perpetrator refuses an alternative procedure, then the case goes to trial.Шаблон:Sfn

Judicial investigation

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In the second investigative phase, the in-depth judicial investigation (known in French as either instruction, or information judicaire) is carried out to see if there is enough evidence to warrant prosecution.Шаблон:SfnШаблон:Sfn The second part is normally carried out by the prosecutor (Шаблон:Lang), or in some serious cases, by the investigating judge.Шаблон:SfnШаблон:Sfn

An investigation carried out by the investigating judge (juge d'instruction; JI). Although this was formerly the model of how French criminal investigations were carried out, since various legal reforms took effect, investigations carried out by a JI compared to a Шаблон:Lang were less than 5% in 2003.Шаблон:Sfn

Investigating judge

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An investigating judge initiates an investigation upon an order of the Public Prosecutor (Шаблон:Lang) or upon the request of a private citizen. The investigating judge may issue letters rogatory (commission rogatoire), order the seizure of necessary evidence, compel witnesses to appear and give evidence, and request expert testimony at an investigative hearing, the judge may have witnesses confront each other or the accused.Шаблон:Sfn

Trial

General characteristics

During the trial phase, the procedure becomes less inquisitorial, and more adversarial, in the sense that it becomes more oral, the parties may be present in person, and witnesses may be examined, although not cross-examined in the common law sense.Шаблон:Sfn However, the inquisitorial underpinnings are still there, and the judiciary takes an active role in the proceedings, with the President of the Court for directing it.Шаблон:Sfn

Trials are usually held in front of a panel of judges, but there are numerous exceptions, and in cases one judge may preside. The trial itself follows the adversarial system, with some aspects of the inquisitorial system mixed in, in accordance with the 1958 code of criminal procedure, and is public, oral, and hearing the parties involved. The hearing itself is oral, but focuses on the written investigation reports and evidence. In some cases, the written materials are sufficient to convict, in the absence of exculpatory evidence. In general, trials are public, but terrorist or rape trials may be held in private, and in some cases victims can request a private hearing. Public trials may not be recorded or filmed, but exceptions are made in cases of high importance such as that of Maurice Papon, convicted in 1998 of crimes against humanity during the Vichy regime of World War II.Шаблон:Sfn

The actual hearing may be divided into two parts, with the first part being a final investigation, including review of the preliminary investigation, augmented by hearing of witnesses and filling out any points not completed in the written report of the initial investigation. The second part is the closing argument phase, where the evidence is discussed and conclusions are made.Шаблон:Sfn

Order of trial

The hearing starts with the cross-examination of the defendant. Evidence is presented (reading of statements, hearing of witnesses and expert testimony). Defendants may question prosecution witnesses (or have them questioned), and may demand the summoning and questioning of defense witnesses under the same conditions as prosecution witnesses. When there is a partie civile associated with the case, that is, a claim by the victim for compensation for losses associated with the crime, then the civil case is heard next, and the amount of damages sought is specified. The closing arguments are last, with the prosecution going first and giving recommendations as to the desired sentence, followed by the defense attorney, and finally, the defendant has the option of making a closing statement.Шаблон:Sfn At the end of the session, the president of the trial notifies the parties of the date when the judgement of the court will be delivered.Шаблон:Sfn legifranceШаблон:Sfn

Rights of the defendant

The accused has a right to a lawyer,Шаблон:Efn and certain parties are required to have one, including juveniles, and anyone with reduced mental capacity.Шаблон:Sfn The accused is presumed to be innocent, until there is a statement of guilt by the court, and the prosecution must prove the defendant is guilty, but the defendant must also prove the existence of a defense. There are a very few circumstances where defendants are presumed guilty and must prove innocence such as someone who lives with prostitutes, or with drug traffickers, is presumed to be living off the proceeds of illegal activity unless they can prove the contrary.Шаблон:Sfn

Absence of the defendant

Normally, the defendant must be present at their trial. If they don't appear, the trial goes on without them, and historically, without their attorney being able to act on their behalf. However, in 2001, this was held to be contrary to the European Convention on Human Rights, and since then, the attorney for the missing defendant must be heard by the court; this is known as Шаблон:Lang. If they have not appeared before the conclusion of the trial, a warrant is issued for their arrest and they lose their right of appeal.Шаблон:SfnШаблон:Sfn legifranceШаблон:Sfn legifrance

Pleading guilty

Historically, under France's inquisitorial system, there was no provision for pleading guilty. Even if a suspect confessed, the full investigation and trial procedure was carried out anyway; the confession merely became another piece of evidence for judges to consider. With backlogs in court schedules causing delays, the Truche Commission recommended judicial reforms including adopting some aspects of the adversarial system of common law legal systems including the possibility to accept a reduced sentence for certain crimes in exchange for a guilty plea, however the proposal was rejected. It was brought up again, and finally in 2004 a proposal was accepted for admitting a guilty plea for less serious crimes punishable by a fine or less than five years imprisonment. Suspects have a week to consider their course of action, and may discuss it with their attorney.Шаблон:SfnШаблон:Sfn legifrance

Evidence

All evidence legally obtained is admissible at trial. Mistreatment of a suspect can render evidence inadmissible unless authorities can prove the contrary. A defendant's past criminal history may be considered not only at sentencing but also at trial to determine guilt or innocence.Шаблон:SfnШаблон:Efn For certain major offenses, the court is provided with additional material on the personality, means, and family situation of the defendant, per article 81 of the code of criminal procedure.Шаблон:SfnШаблон:Sfn legifrance

Judgment

After the audience is over and the court has announced the date of the sentencing, the judge, or judges, retire to consider the case and render their judgment. Their decision is based on their personal sentiment, per articles 353 and 427 of the code.Шаблон:SfnШаблон:Sfn legifranceШаблон:Sfn legifrance In the Ancien regime, judges were obliged to render decisions based on specific evidence presented, but this was abolished during the French Revolution because they considered it subject to prejudice, and a failure to consider individual circumstances. The judge can order an acquittal or a conviction, and the penalty may rise to life in prison (the death penalty was abolished in 1981). If the victim sought plaintiff damages and a conviction was obtained, then the judge may agree to award damages to the victim as civil party (Шаблон:Lang).Шаблон:Sfn

Enforcement of judgment

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Actions

Garde à vue

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Шаблон:Ill is the term for the detention of a suspect in police custody during a police investigation. Normally, the detention lasts a maximum 24 hours.Шаблон:SfnШаблон:SfnШаблон:SfnШаблон:Sfn It is covered in article 62-2 of the French code of criminal procedure.Шаблон:Sfn Legifrance Formerly, Шаблон:Lang applied to witnesses as well.Шаблон:Sfn

During a Шаблон:Slink, police can take individuals into custody ([[#Garde à vue|§ Шаблон:Lang]]) for a period of 24 hours. This allows police to bring suspects into custody, given certain conditions which must be met: a) persons brought into custody are suspected of a criminal offense; b) the investigator must immediately inform the prosecutor of the detention; and c) it may only last for 24 hours, renewable for another 24 (longer in case of terrorism); and d) the investigator must inform the suspect of his right to an attorney. Breach of any of these conditions is likely to result in a dismissal of charges by the judge. Police are obliged to issue reports (procès-verbaux) to the public prosecutor, who will make the decision whether to carry on with the process.Шаблон:Sfn

In 2009, there were 792,000 Шаблон:Lang.Шаблон:Sfn

Arrest

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Search

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Reenactment

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Police may create a reenactment (Шаблон:Lang) of a crime during the investigation phase of a criminal procedure.

Expert assistance

An expert may be called upon in criminal cases, who then carries out their task under the supervision of the investigating judge. Calling of an expert (Шаблон:Lang is an exclusive prerogative of the judge.

Interrogation

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See also

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Notes

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References

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Works cited

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Further reading

External links

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Шаблон:French criminal law Шаблон:Law enforcement agencies of France Шаблон:France topics Шаблон:Law in Europe

  1. Décision n° 89-258 DC du 8 juillet 1989, JORF du 11 juillet 1989 page 8734; NOR : CSCX8910309S