Criminal law can be described as the body of rules defining the behaviour that constitutes criminal offences and their respective sanctions.
The law of criminal procedure, in simple terms, regulates the way investigations and trials are performed and the way suspected individual are investigated, charged and tried.
Under French law, criminal offences are divided, according to their seriousness, into three different types of criminal action:
- Contraventions/breaches ("Contraventions"):
These are the least serious offences, they are themselves divided into 5 different types of “classes”, in accordance with their seriousness.
The Courts which have jurisdiction over these contraventions are called “Tribunaux de police”.
Driving in excess of the speed limits, acts of violence causing limited harm= etc. are examples of Contraventions.
- Serious criminal acts ("délits"):
Drug trafficking, burglary, intentional or unintentional manslaughter are examples of "délits".
The "délits", by far, constitute the widest category (in theory and in practice) of criminal offences.
The Courts with jurisdiction over such offences are the "Tribunaux correctionnels".
- Very serious crimes("crimes"):
Under French law the term "crimes" defines a very specific type of the most serious criminal offences.
Rape, murder, international drug trafficking or acts of terrorism are good illustrations of what might amount to a "crimes".
They are dealt with by special courts, called "Cours d’Assises", in which professional judges and jurors sit together.
In addition to these three legal subdivisions a further summa divisio can be made among the various offences, between "white collar" and "blue collar" criminal offences.
White collar crimes can be defined - in a simple fashion - as complex, sophisticated, and relatively technical offences. They often involve executives or legal entities. Antitrust violations, frauds of different types (credit card, bankruptcy, healthcare, mail, securities...), environmental law violations, tax evasion, insider trading, bribery, are good examples of white collar crimes.
Blue collar crimes are - in theory - more basic or common offences, such as theft, drug trafficking, rape, murder, etc.
It should be noted that under French law, individuals as well as legal entities (such as corporations, partnerships, etc.) can be found guilty and sentenced consequently.
Our law firm advises in relation to all the above mentioned offences and represents both alleged offenders and victims.
The French criminal procedure can be divided into various stages of "key acts":
- The "Garde à vue" (situation in which an individual is placed under police custody)
The "Garde à vue" is a measure of constraint in which a police officer holds a person without his/her consent, in the local offices of the police or of the gendarmerie (i.e. military branch of the French police), for a limited period of time. A person who is placed under "Garde à vue" will be interrogated by police officers and can be confronted with other alleged offenders or witnesses/victims. Under certain circumstances and conditions, the home or car can also be searched by the police.
This measure affecting fundamental rights is consequently strictly controlled and limited by the French Code of Criminal Procedure. A person placed under “Garde à Vue” is entitled to certain rights, among which is the right to be assisted by an attorney during each interrogation. A court appointed attorney (actually appointed by the Bar Association) can also attend to assist in the event that his usual, chosen attorney is not available.
Such a measure is limited to serious matters, in which a jail sentence can be contemplated and to those individuals where the evidence suggests that the individual has committed - or attempted to commit - a criminal offence.
The duration of this measure is strictly limited. In principle it can only last for 24 hours, but this period can be extended by an additional 24 hours, with the express authorization of the prosecutor. In exceptional matters (such as drug trafficking, terrorism...) the overall duration of this measure can be up to 72 or even 96 hours.
The newly enacted law, dated April 14, 2011, modified dramatically the "Garde à Vue" procedure. It enhanced the rights of the individual placed under custody, providing for example that the individual is entitled to be assisted by an attorney during his/her interrogation by the police and that such attorney can formulate questions and comments.
Despite the clear weaknesses in the safeguards created by the new law (in particular, attorneys have no access to, and knowledge of, the evidence held by the police against their client at this stage), it is imperative for persons placed under Garde à Vue to insist on their right to be assisted by an attorney. And this even though (and in particular if) they might be advised otherwise by police officers, expressly or implicitly.
This presence, as insufficient as it is, is still very important since it represents the best guarantee that the detainee’s rights will be fully respected.
Such a presence is all the more crucial that the "Garde à Vue" is a key moment in the criminal investigation. It is not only usually the first encounter with the police, but it also takes places in circumstances that are far from being favorable for the detainee.
Tired, under pressure, detained in difficult conditions, sometime interrogated in the middle of the night, the detainee is all too often at a loss and might eventually sign statements that are in whole or in part incorrect, or just simply self-incriminatory. All this in the hope of speeding up the ongoing procedure and to regain freedom, being confident that such statements will be easily clarified or rebutted at a later stage.
Unfortunately, these early statements are not easy to successfully dispute and overturned afterwards. They are often held against the alleged offender by criminal courts, even after years of investigation and despite subsequent retractions.
- Preliminary investigations (l’enquête préliminaire)
The preliminary inquiry or police investigation is conducted by the police on their own initiative or at the public prosecutor’s initiative.
The powers of police officers or gendarmes during this phase is more limited. They act under the prosecutor’s supervision and control.
In recent years, the number of preliminary investigations has steadily increased to the detriment of "judicial investigations".
This is a reflection of the recent judicial policy, which consists of "short circuiting" investigating magistrates ("Juges d’Instrution").
Prosecutors, as opposed to investigating magistrates, do not enjoy the same level of independence vis-à-vis the executive branch, since they are under the authority of the justice department Minister ("Ministre de la justice" aka "garde des sceaux")
- Judicial investigation (the "information judiciaire" or "instruction")
A judicial inquiry is the investigation that is performed by and/or under the supervision of an Investigating Magistrate ("Juge d’Instruction") or group of investigating magistrates.
Investigating magistrates are called "magistrats du siège" (i.e. sitting judges) as opposed to the "magistrats du parquet" (i.e. standing magistrates).
Judges who make up criminal courts also belong to the "magistrats du siège" group.
This distinction is very important since "sitting" magistrates enjoy a statutory independence which prosecutors do not have vis-à-vis the executive branch (i.e. the justice department).
As a consequence, investigating magistrates are in a relatively strong position. This power is actually so important that they were allegedly considered by Napoléon Bonaparte himself as "the most powerful men in France".
In France, there are principally three types of Courts with jurisdiction over criminal matters: The Tribunaux de Police, the Tribunaux Correctionnels and the Cours d’Assises.
The Tribunaux de Police (i.e. Police Courts) have jurisdiction over the least serious criminal offences, the "Contraventions". As a consequence, these courts cannot decide jail sentence.
The Tribunaux Correctionnels have jurisdiction over the criminal offences called "Délits".
These Courts can sentence defendants to pay fines and/or to imprisonment. Depending on the type of "Délit", a series of additional penalties can also be decided in addition (e.g. withdrawal of driving licence, dissolution of partnerships or of corporations...).Finally, the Cours d’Assises preside over the most serious criminal offenses, the "Crimes". These Courts are the only jurisdictions in France which are, in part, made up of juries. Nine jurors (twelve on appeal) sit with three professional judges. Jurors are simply citizens and not professional judges. As opposed to US Courts, both professional judges and jurors take (at least in principle) an equal part in the verdict. In practice however, it is the case that professional judges often play a major role in the final decision. [+]
In drug trafficking or terrorist matters the Cour d’Assises comprise exclusively professional judges, the rationale behind this rule being the concern that jurors, as mere citizens, might be more prone to be influenced by possible threats or could suffer from potential retaliation.
It should be noted that, under the French criminal procedure, the victims (called "parties civiles", i.e. civil claimants) can claim civil damages before criminal jurisdictions. As such, they can also be assisted and/or represented by an attorney.
This active role plaid by civil claimants before French criminal jurisdictions (and even before, during the judicial investigation) is usually perceived by American clients or lawyers as surprising, as it is a clear difference between the French and American criminal systems.
Another aspects that deserves to be noted is the fairly broad understanding, by French criminal courts, of their jurisdiction power.
They have indeed jurisdiction over authors of criminal offences irrespectively of their nationality, and this even if part of the offence was committed abroad. In simple terms, French Courts can claim jurisdiction over crimes committed by or against French citizens or over criminal offences of which one element was committed on French soil.
Criminal lawyer of experience, Mr. Guerin works alongside his clients at all stages of the proceedings and put at their service, their experience of complex and sensitive issues and procedural expertise.