Page 219 - Law of Peace, Volume ,

Pam 27-161-1

APPENDIX

Section I. CRIMINAL LAW PROCEDURES IN FRANCE
A-1. General. In analyzing the criminal code of a civil ju- criminal prosecution has its advantages, instigation by the
risdiction, one must distinguish between the penal code victim of a private prosecution (action civile) does present
and the code of criminal procedure. The former deter- some hazards, i.e., he may become liable to the accused
mines criminality while the latter indicates in what manner for damages if the prosecution is not successful. This is, of
alleged criminal conduct will be processed. Overlap often course, a deterrent to the attempted prosecution of un-
occurs between the two. The French Penal Code has re- founded or frivolous criminal proceedings by private in-
mained essentially unchanged since its codification in dividuals.
18 10. However, in 1958, a new French Code of Criminal A-3. Charging. a. The Dossier. When a charge is
Procedure was enacted which codified prior decisional brought by the prosecutor, or by the victim, or the victim
law. The 1958 Code "retains the essentially secret and in- joins in a proceeding brought by the prosecutor, 5 a dossier
quisitorial nature of the proceedings before the juge is complied. Argument is based upon the dossier. While
d'instruction, but places the accused, the victim, and the the defendant and even the clerk of the court also prepare
prosecutor upon a more equal footing in these proceed- dossiers, the most important is that prepared by the in-
ings." 1 vestigating magistrate 6 (juge d'instmction) . Because of
A-2. The Prosecutor in France. a. In addition to the .the importance of this dossier, the juge d'instmction is re-
1958 Code of Criminal Procedure, France has passed quired to be neutral and is "obligated to develop for the
other laws which have decriminalized certain conduct and dossier not merely facts favorable to the prosecution, but
liberalized procedures. While French civil proceedings are also those favorable to the defendant." 7 Therefore, the
becoming more "adversarial" in nature, the French dossier contains among other things,
criminal process still maintains its "inquisitorial" nature. the reports prepared by both the police and the juge d'instmction detail-
The prosecutor in France has discretion whether to pursue ing the nature of the crime, the date and place of the hearing, and a
a criminal case or not. summary of the statements of each of the witnesses. At each phase of
the investigation, considerable evidence relative to the character and
6. As a check against abuse of discretion by the
personality of persons involved in the incident is received and made part
prosecutor (procureur), the French Code of Criminal of the dossier. Each time a witness is heard, such things as his age, oc-
Procedure also permits the victim of a crime (partie civile) cupation, address, employer, date and place of birth, parents, and num-
to institute proceedings. 2 This may occur in several in- ber of children are summarized. Succinctly, presumably so that his
stances. The victim may either join in the proceeding initi- declarations may be evaluated accordingly and further information con-
ated by the prosecutor or, if no prosecution is brought by cerning the witness may be obtained without undue difficulty. Extensive
annotated photographs and maps are usually made and included. 8
the government, the partie civile may institute what
amounts to a private prosecution. 3 The aim of this inter- 6. Witnesses and Suspects. Under French law, wit-
vention is the same in either case, to recover damages. nesses and suspects may be detained in custody for 24
hours and, under some circumstances, for 48 hours in
Thus in one proceeding, civil and criminal liability may be, and fre-
quently are, determined. Although an iqjured party may always assert order to facilitate questioning. 9 When the police conduct
his claim for civil relief in a separate civil prcceedmg, intervention in a the questioning, a witness normally is not sworn but state-
pen- criminal proceeding may be quite advantageous. By this means, ments given to the examining magistrate generally are
he can take full advantage of the investigatory facilities and prosecuting given under oath. Until a suspect "officially" becomes the
personnel of the state, in the inquisitorial aspects of the proceedings, defendant in the proceeding (the inculp6), he may be
and the speed, economy, and more liberal rules of evidence charac-
teristic of the criminal action. In addition, he reaps the psychological questioned numerous times. However, once he becomes
the inclupg, he must be informed of that status in the in-
benefit resulting from his adversary's position as a criminally accused. 4
Although the intervention by the victim in an ongoing vestigation, 10 the nature of the charges, that he has a right
to remain silent, 11 and that he has a right to counsel. 12
1. Pugh, Administration of Criminal Justice in France: An Introduc-
tory Analysis, 23, La. L. Rev. 1, 14 (1962) [hereinafter referred to as 5. Penal Code, art. 373.
Pughl. 6. Pugh, Cross Observations on the Administration of Civil Justice
2. French Code of Criminal Procedure, art. 1 [hereinafter referred in the United States and France, 19 U. Miami L. Rev. 345, 356-57
to Penal Code]. Anyone claiming to be injured by a [crime] may con- (1 965).
stitute himself a partie civile by lodging a complaint with a competent 7. Pugh, supra note 1, at 23.
[court]. Id. at Art. 85. See also Arts. 2, 31. 8. Id. at 15.
3. Penal Code, Art. 85. For a general discussion of the action civile, 9. See Code De Procedure Penale, Arts. 77 et seq. bereinafter cited
see Sullivan, A Comparative Survey of Problems in Criminal Procedure, 6 as Proc. Code].
St. Louis (I. L. J. 380, 340 (1961); Vouin, The Protection of the Ac- lo. Id. at Art. 115.
cused in French Criminal Procedure, 5 Int7 & Comp. L. Q. 1, 7-11 11. Id. at Art. 1 14. "The fact that such notice has been given must
(1956). be recorded in the official records. This stage in the proceeding is called
4. Pugh,supra note 1, at 12. Most personal injury suits involving the fmt appearance." Pugh, supra note 1, at 16, n. 1.
car accidents are handled by such a process. Id. '2. Id.