27 janvier 2022

Actualités juridiques

Alps Shooting : what's going to happen now? Quick review of the french penal law.

06 sept 2012 à 10h35 par Christophe Landat

England and the rest of the world has been shocked by the killing of 4 people near the village of Chevaline, not far from Lake Annecy. A little girl was found alive during the nigth hide in the car. It takes few hours to the Gendarmes to realize she was there just because the law prohibits to change the scene of crime before the intervention of the scientific legal services and because she didn't speak and she did'nt moove : nobody saw her before.

As a criminal lawyer, I know that the french legal system is very different from the english one because I already have the chance to work with barristers and sollictors from UK. So, what's going to happen now? 
In France, the criminal procedure is different from England. In theory, lawyers can't have an access to the file during what we call the "enquête de flagrance". This, is the first step of the procédure. When the crime is discovered, policemen work under the authority of the "Procureur" who's in charge of the prosecutions. The maximum delay for that kind of procedure is 15 days.

A second step is possible : this is the "enquête préliminaire" which allow the "procureur" to stay the boss of the investigations longer.

After that, this is another judge whose name is "Juge d'Instruction" who will investigate at the request of the Procureur by a legal document : the "réquisitoire introductif d'instance".

This is theory, but in fact, in that kind of crime, the "Procureur" often asks  immediatly the "Juge d'Instruction" to open the official investigations. That's what we call in France the opening of the "information judiciaire".

The victim's family lawyer (the family can choose a lawyer everywhere in France and not only near the crimescene) will be authorized to see the official file as soon as he will inform the judge that his clients decide do be part of the investigation by a letter. We say in our legal system that they decide to be "partie civile".  The "juge d'instruction" is the judge who will give instructions to the Gendarmerie, he's the new boss of the investigations : he works in a close collaboration with it. 

As soon as the lawyer's victim family is officialy part of the file, he can asks the judge to do all kind of investigations : interview people, order a scientific operation and so on... he contributes to the building of the investigations, but he has to be a specialist to be efficient.

Something more to understand : in France we have two kind of "police" : the Police and the Gendarmerie. The fisrt one is a civil police, like in many other countries. And the Gendarmerie (like the Guardia Civil in Spain) is a military police with civil security missions. It's very appreciate by french people. To say things simply, the Police has a competence in city areas and the Gendarmerie in countryside areas.

In that case, the Gendarmerie is in charge of the case. But it can change if the judge wants to.

If somebody is arrested, he will be presented to the judge with his lawyer after a "garde à vue". The "garde à vue" is "the coercion time" : the suspect is arrested and have to answer to the legal officers. His lawyer his there during all this time. Then, in front of the judge, the suspect can be prosecuted. We say "mis en examen". He's presumed innocent untill the decision of a court.

But he can stay in prison during the investigations : that's what we call "détention provisoire". Of course there are legal conditions for that. 

At the end of the investigations, the "juge d'instruction" will give his point of view  : he's not the one who will say "guilty" or "not guilty" : his only job is to investigate and at the end, to say if, yes or no, there are enough charges to send the suspect in front of a Criminal Court.

For that kind of crime, this is the "Cour d'Assises" which has the competence to judge the case : 3 professionnals judges and 6 simple citizens for the jury.

Last but not least, the penal procedure is, most of the time, very long in France. 



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