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The penal procedure is the intervention of the official authorities since the beginning of the complaint of a victim, the denunciation or the observation of an infringement until the final court order. The penal procedure has a double object: the organization of the repressive jurisdictions and that of the course of the lawsuit since the release of the continuations until the exhaustion of the grounds for appeal.
Penal procedure
The instruction
The instruction is a phase of a lawsuit during which the parts constitute a file which joins together evidence, facts and testimonies. The constitution of the file must make it possible to discover the author of an infringement and to determine if the loads retained against this person are sufficient to return it in front of the court.
The instruction is open when an infringement was noted by the judicial police, when a private individual complains of to have been victim. In the event of crime, the prosecutor seizes obligatorily the examining magistrate and the instruction is obligatory.
The instruction is obligatory only for the crimes and it is optional for the infringements and the offences. At the end of the legal instruction, the examining magistrate orders a withdrawal of case or transmits the file to the qualified jurisdiction of judgment: Court of Assizes out of criminal matter or a magistrates' court for the other infringements.
The setting in examination
The setting in examination is an exclusive competence of the examining magistrate. It aims at the person against whom there exist serious or concordant indices making probable that she could take part as author or accomplice, at the commission of an infringement (Article 80-1 of the Criminal procedure code). The examining magistrate cannot proceed to the setting in examination of the person that if it estimates not to be able to resort to the procedure of assisted witness.
The person put in examination is entitled to the assistance of a lawyer who can take note of the file consisted the judge. She can also ask the judge to proceed to any act appearing to him necessary to the manifestation of the truth: hearings, confrontations.
Detention pending trial
Detention pending trial consists of the imprisonment in a prison of the person put in examination throughout instruction. The person put in examination is supposed innocent and remains free. However, because of the needs for the instruction or for measurements of safety, the person put in examination can be subjected to judicial control or placed in detention pending trial. Only, the examining magistrate is qualified to put somebody in detention pending trial.
Constantly of the instruction, the person placed in detention pending trial or her lawyer can ask for her setting in freedom. The request is addressed to the examining magistrate. It communicates the request with the public prosecutor for purposes of requisition and transmits its opinion reasoned to the judge of freedoms and detention.
The code envisages one maximum duration of the duration of detention pending trial with 3 situations:
- for the minor offenders, maximum 4 months with the possibility of renewing 1 time,
- for the average delinquents, duration maximum one year,
- for the important delinquents, not of maximum duration because it can be renewed indefinitely every 4 months.
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