1. Comparative Law Spring 2002 Professor Susanna Fischer CLASS 32 FRENCH CRIMINAL PROCEDURE April 5, 2002

2. Wrap-up: 3 Stages of French Criminal Procedure 1. Police investigation/prosecution (mainly inquisitorial) 2. Judicial investigation (mainly inquisitorial) 3. Trial (both adversarial and inquisitorial)

3. 1999 European Court of Human Rights Condemnation of France for torture Selmouni case – Ahmed Selmouni (joint Moroccan/Dutch national) awarded 500,000 FF in damages for torture and brutality suffered while in French police detention ECHR also found that France had failed to try Selmouni within a reasonable time.

4. Amnesty International Concerns Amnesty International has reported concerns about French police brutality, particularly toward those of non-European origin and asylum seekers as well as impunity granted by courts to brutal police officers (See Amnesty International 2001 Report (Jan – Dec 2000 at: http://web.amnesty.org/web/ar2001.nsf/web eurcountries/FRANCE?OpenDocument) http://web.amnesty.org/web/ar2001.nsf/web eurcountries/FRANCE?OpenDocument Many have concerns about excessive detention before trial in France

5. Amnesty International Concerns Amnesty International has also reported concerns about German and U.S. police brutality.

6. Rights While in Detention Does a suspect have the right to see a lawyer while in custody of the French police?

7. Rights While in Detention Does a suspect have the right to see a lawyer while in custody of the French police? New legislation was enacted in 2000 under which a suspect can have lawyer from beginning of police custody (though not for terrorism suspects or drug-trafficking suspects). This also requires video recording of police questioning of minors, though not adults. Also creates detention judges to rule on whether detention is justified.

8. Rights While in Detention Is a suspect informed of their right to remain silent?

9. Rights While in Detention Is a suspect informed of their right to remain silent? No and they are not told why they are being held in police custody

10. Control by Prosecution Once a person is placed in police custody, police must inform the senior public prosecutor (procureur de la Republique) immediately who can authorize further custody for 24 hours - note French procedure may violate ECHR which requires an arrested/detained person to immediately go before a judge (note that prosecutors are judges but ECHR still may not find this adequate – see Huber v. Suisse (1990))

11. Control by the Judge In France, French judges are heavily involved at the pre-trial stage and the roles of the prosecution and defense counsel is considerably less active than in the United States If the crime is sufficiently serious, the procureur de la République will request a judicial investigation (instruction judiciaire)

12. Public Prosecutor:Decision to Prosecute What if the case is less serious? What are the prosecutors’ options?

13. Public Prosecutor:Decision to Prosecute What if the case is less serious? What are the prosecutors’ options? Have discretion not to prosecute – why is this controversial? How does it differ from Germany? warnings or mediation - summons to appear before the trial court (usually tribunal de police) - notice to attend court voluntarily - formal order to attend tribunal correctionel

14. Proposed Reforms: Prosecutorial Discretion What reforms did the Truche Commission propose regarding prosecutorial discretion?

15. Proposed Reforms: Prosecutorial Discretion Retain public prosecutor Retain prosecutor discretion, but place greater restrictions on its exercise No instructions in individual cases from Ministry of Justice Ministry of Justice should set up clear national prosecution policy A right to appeal against decision to classify for no further action Right of action by Ministry of Justice

16. European Arrest Warrant In 12/01 EU justice/interior ministers agreed to introduce european arrest warrant. Courts in any EU country can secure arrest and extradition of those suspected of 32 serious crimes without complex extradition process Must be implemented into national law by 2004 (provided Italy can change constitution by then). Some states, e.g. France, England have agreed to implement earlier (by 1/1/2003)

17. Judicial InvestigationStage A suspect must be charged before the judicial investigation can take place What is the standard for charging?

18. Judicial InvestigationStage A suspect must be charged before the judicial investigation can take place What is the standard for charging? Significant evidence that suspect participated in the offence

19. Judicial InvestigationStage How common are judicial investigations?

20. Judicial Investigation Stage How common are judicial investigations? They take place generally only in the most serious cases – about 10% How many investigating judges work on a particular case?

21. Judicial Investigation Stage Normally, just one investigating judge works on one case, but for more serious or complex cases there can be more (e.g. 4 for the inquiry into the Crédit Lyonnais collapse) What are the powers of the investigating judge?

22. Judicial Investigation Stage What are the powers of the investigating judge? How do they differ from the powers of the police? What is the purpose of the judicial investigation?

23. Judicial Investigation Stage What are the powers of the investigating judge? Power to investigate the criminal conduct in the complaint/request. These investigative powers are wide – eg hear witnesses, visit scene, search and seize property, arrest, release on bail with conditions. How do they differ from the powers of the police? More coercive – e.g. phone tapping, placing suspects on remand in custody NOTE – activity is often delegated to the police

24. Judicial Investigation Stage What is the purpose of the judicial investigation? – to investigate the truth of what happened

25. Criticisms of Judicial Investigation What are the most common criticisms of the judicial investigation stage?

26. Criticisms of Judicial Investigation What are the most common criticisms of the judicial investigation stage? - conflicts arising from dependency of investigating judge on police who are answerable to executive - slow speed of judicial investigation - lack of resources/funds for investigations - serious concern about too many people being held on remand in custody

27. Close of Judicial Investigation How does the judicial investigation end?

28. The Trial How long is the trial? The trial is often said to be more “adversarial” in nature than the investigation. Why is this?

29. The Trial In general, what evidentiary rules apply? Is there a presumption of innocence? Is there a jury?