France

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Background

The Republic of France has had a strong history from the start- it was one of the first European countries to transition from feudalism to nation-state [1]. However, financially irresponsible monarchs soon drove the nation to a revolution in which egalitarianism and republicanism were favored over the previous estate system. It wasn’t until 1958 that France formed the Fifth Republic, a mixed presidential/parliamentary system that finally succeeded in balancing political power. Today, France is a leader within the European Union and a strong economic player on the global stage. However, current President Nicholas Sarkozy faces many challenges, including those of rapid immigration, high unemployment, and a slowing economy. The religion of France is 83-88% Roman Catholic and the national language is French. Although the majority of the population is native European, there exists a growing community of North African and Indochinese immigrants. [2]

Type of System

The French Republic has a civil law system in which an 800 article Code of Criminal Procedure dictates all issues of criminal procedure. [3]

Due to the high degree of codification found in this procedural code, there is very little case law in France. Interpretations and decisions made by French courts concerning the Constitution or codes are not binding. [4] All French criminal cases are tried in one three courts: major felonies are tried in the Assize Ccourt, delicts are tried in correctional courts, and contraventions are tried in contravention courts. [5]

Sources of Defendants’ Rights

The French Court of Cassation exercises the power of review according to a set of procedural guarantees that are based on the idea of the “rights of the defense”. These rights are regarded as in line with principles of justice and equity. Additionally, the French are guaranteed certain defense rights derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms, which is binding in French courts. Due to recent decisions made by the French Court of Cassation, it is becoming evident that the European Convention has been increasingly more influential on French procedural law. [6] [7]

Pre-Trial Phase

French law does not use the same investigative concepts as the Anglo-American systems. Instead, French law recognizes four types of investigations and the evidence-gathering and arrest powers associated with each. The four types of French investigation are: investigation of “flagrant” offenses, “preliminary” investigations, identity checks, and formal judicial investigations performed by a magistrate. [8]. In the case of an identity check, a person may be detained for a maximum of four hours. In the case of an investigative arrest, a person may be detained for up to 48 hours. [9]

At the start of detention, the detainee must be made aware of the charges against him in a language that he/she can understand, the nature of the crime that is being investigated, and the period of detention that is allowed. The period of detention is 24 hours, with the possibility of a 48 hour extension. [10] Other rights that the defendant must be informed of are: the right to have his family, cohabitant, or employer informed of his detention, the right to be examined by a doctor (and a second time if the detention is extended to 48 hours [11], and the right to speak immediately and privately with legal counsel for up to 30 minutes. [12] [13]

According to French law, after the accused person has been formally charged with a crime the investigation is considered complete and there is no need for a pre-trial interrogation. [14] The detained has the right to immediate and private counsel with legal representation for at least 30 minutes. The legal counsel must be informed of the nature and date of the crime committed and is allowed to submit written observations in the detention record. However, the counsel is not allowed to be present during interrogation and does not have access to any police files or the detention record.[15] Additionally, French law does not require that the detained is informed of their right to silence and those detainees who do request legal counsel may be questioned before the arrival of their counsel. [16] There does not appear to be any formal procedures regarding identification procedures.

Court Procedures

French law does not specify the amount of time in which a detainee must be brought before a court.[17]. In most cases, the investigatory detention only lasts 48 hours, at which time the detainee is usually released, with or without a future court date. However, there is no limitation that says detainees must be released after 48 hours, in which case they may remain in custody longer. [18]

According to French law, in the event of a felony case the examining magistrate or the examining chamber is required to issue formal charges. [19] All other cases must be charged by the prosecutor or the civil party. Additionally, the French prosecutor has the ability to refuse to invoke criminal law or to charge less serious crimes than the evidence suggests. [20] In this case, the victim still has the right to independently insist on the prosecution or investigation. [21]

The French equivalents to preliminary hearings are the reviews made by the examining magistrates (JDI) and the examining chamber. [22] If the JDI decides that the crime qualifies as a major felony the case is then sent to the Assize Court. Pre-trial motions may be made either during a judicial investigation or at the beginning of a trial. These motions must be submitted to the JDI or the examining chamber. The JDI or the examining chamber must comply with the motion, or issue a decree detailing why the motion has not been granted. [23] [24] In terms of discovery, the defendant is entitled to review the full police dossier at certain stages of pre-trial procedure or right before the commencement of the trial. [25] French criminal trials are oral and adversary in nature. [26] [27] In the French criminal system, lay jurors are only found in the Assize Court which tries major felony cases. Delicts are tried in correctional court, a court that is comprised only of one or three professional judges and contraventions are tried in contravention courts before only one judge. Only recently have French criminal courts begun to accept such concepts as guilty pleas, plea bargains, and sentence leniency in return for bargains. [28] Cases that follow the European Convention on Human Rights have granted defendants broader rights than those previously granted under French criminal procedure. Article 6.1 of the Convention further ensures that the defendant has the right to a fair trial. [29] Additionally, Article 6.3.d gives the accused the right “to examine or have examined witnesses against him to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him”. [30] Cross examination is allowed, but is rarely practiced. In the event of an expert witness, that witness is usually appointed at either the trial court stage or at the pre-trial proceedings. [31] Defendants are awarded the right to either appointed or retained legal counsel in all cases. However, the majority of the trial is conducted by the judge and the lawyer plays a limited role. [32] An individual who has been affected by a criminal offense may either initiate prosecution or join an existing prosecution. [33] In both cases the victim is entitled to demand restitution for damages caused. French judges are appointed to their position and are almost always graduates of the national magistracy school. [34] Rulings of either a correctional or contravention court may be appealed to the Court of Appeals, while rulings made by the Assize Court must be made to the Appellate Assize Court. [35]


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Reference

  1. www.state.gov/r/pa/ei/bgn
  2. www.state.gov/r/pa/ei/bgn
  3. Craig M. Bradley, Criminal Procedure A Worldwide Study 205 ( 2d ed., Carolina Academic Press 2007)
  4. Craig M. Bradley, Criminal Procedure A Worldwide Study 206 ( 2d ed., Carolina Academic Press 2007)
  5. Craig M. Bradley, Criminal Procedure A Worldwide Study 219 ( 2d ed., Carolina Academic Press 2007)
  6. 1978 Bull. Crim. No. 346
  7. Craig M. Bradley, Criminal Procedure A Worldwide Study 206 ( 2d ed., Carolina Academic Press 2007)
  8. Craig M. Bradley, Criminal Procedure A Worldwide Study 207 ( 2d ed., Carolina Academic Press 2007)
  9. Craig M. Bradley, Criminal Procedure A Worldwide Study 210 ( 2d ed., Carolina Academic Press 2007)
  10. CPP Arts. 63-1
  11. CPP Art. 63-3
  12. CPP Art. 63-2
  13. Craig M. Bradley, Criminal Procedure A Worldwide Study 216 ( 2d ed., Carolina Academic Press 2007)
  14. Craig M. Bradley, Criminal Procedure A Worldwide Study 217 ( 2d ed., Carolina Academic Press 2007)
  15. CPP Art. 63-4)
  16. Craig M. Bradley, Criminal Procedure A Worldwide Study 216 ( 2d ed., Carolina Academic Press 2007)
  17. CPP Arts. 126 to 133
  18. Craig M. Bradley, Criminal Procedure A Worldwide Study 220 ( 2d ed., Carolina Academic Press 2007)
  19. Craig M. Bradley, Criminal Procedure A Worldwide Study 223 ( 2d ed., Carolina Academic Press 2007)
  20. CPP Arts. 40, 40-1
  21. Craig M. Bradley, Criminal Procedure A Worldwide Study 224 ( 2d ed., Carolina Academic Press 2007)
  22. CPP Arts. 79, 181, 191 to 128
  23. CPP Arts. 82 to 82-2
  24. Craig M. Bradley, Criminal Procedure A Worldwide Study 225 ( 2d ed., Carolina Academic Press 2007)
  25. Craig M. Bradley, Criminal Procedure A Worldwide Study 226 ( 2d ed., Carolina Academic Press 2007)
  26. CPP Arts. 306, 400, 427 (para. 2), 535, and 536
  27. Craig M. Bradley, Criminal Procedure A Worldwide Study 227 ( 2d ed., Carolina Academic Press 2007)
  28. Craig M. Bradley, Criminal Procedure A Worldwide Study 226 ( 2d ed., Carolina Academic Press 2007)
  29. Craig M. Bradley, Criminal Procedure A Worldwide Study 227 ( 2d ed., Carolina Academic Press 2007)
  30. Craig M. Bradley, Criminal Procedure A Worldwide Study 227 ( 2d ed., Carolina Academic Press 2007)
  31. Craig M. Bradley, Criminal Procedure A Worldwide Study 234 ( 2d ed., Carolina Academic Press 2007)
  32. Craig M. Bradley, Criminal Procedure A Worldwide Study 234 ( 2d ed., Carolina Academic Press 2007)
  33. (CPP Arts. 2 to 2-21), Art. 338-1 et seq.)
  34. Craig M. Bradley, Criminal Procedure A Worldwide Study 234 ( 2d ed., Carolina Academic Press 2007)
  35. Craig M. Bradley, Criminal Procedure A Worldwide Study 235 ( 2d ed., Carolina Academic Press 2007)


QUICK FACTS

  • France has a total prison population of 59,655, with every 96 per every 100,000 people in prison.
  • Approximately 27.7% of the French prison population consists of pre-trial detainees and 1.1% is made up of juvenile prisoners.
  • France currently has 185 prison institutions with an official capacity of 47,672. The current occupancy level of the French prison system is 118.1%.