The public prosecutor decides on the advisability of setting in motion the public action. This means that it is up to the prosecutor to assess what follow-up will be given to ongoing prosecutions, complaints and proceedings.
Such a choice is not trivial because once started, the prosecution cannot go back. He can no longer drop the prosecution.
The basis of the opportunity for prosecution recognized by the Public Prosecutor
The recognition of the advisability of prosecutions is laid down in a judgment of the Court of Cassation dated December 8, 1826 "the legislator could not want to compel the officers of the public prosecution to prosecute all complaints, even the lightest and the most insignificant, on complaints which do not directly concern public order and which often have no other goal than to satisfy particular passions or hatred, vanity or self-esteem interests ”.
A principle constantly reaffirmed by the judges of cassation "the advisability of prosecutions is not contrary to the provisions of Article 6, paragraph 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms". (Cass. Crim. September 21, 1993).
Since the law of March 9, 2004, which establishes alternatives to prosecution is based on the principle of expediency of prosecution defined in articles 40 and 40-1 of the code of criminal procedure.
Article 40 of the Code of Criminal Procedure :
“The public prosecutor receives complaints and denunciations and assesses the follow-up to be given to them in accordance with the provisions of article 40-1. Any constituted authority, any public officer or civil servant who, in the exercise of his functions, acquires knowledge of a crime or an offense is required to give notice thereof without delay to the public prosecutor and to transmit to this magistrate all information, minutes and documents relating thereto. "
Article 40-1 of the Code of Criminal Procedure :
"When he considers that the facts which have been brought to his knowledge in application of the provisions of article 40 constitute an offense committed by a person whose identity and domicile are known and for whom no legal provision stands in the way of the setting in motion of the public action, the territorially competent public prosecutor decides if it is appropriate:
- 1 ° Or to initiate proceedings;
- 2 ° Or to implement an alternative procedure to prosecution in application of the provisions of articles 41-1 or 41-2;
- 3 ° Or to discontinue the procedure as soon as the specific circumstances linked to the commission of the facts justify it. "
The decision of the prosecution no longer consists only of choosing between prosecution and dismissal. He can opt for what is called the 3rd way: These are the alternatives to prosecution.
Alternatives to prosecution
The decision of the prosecution no longer consists only of choosing between prosecution and dismissal.
Development alternative measures allows to avoid making rankings without "dry" continuation. They provide a more diversified judicial response to on the one hand protect the rights of victims and on the other hand to dissuade the perpetrators who could believe in their impunity in the absence of prosecution.
Three options are offered to the prosecutor by article 40-1 of the Code of Criminal Procedure:
- prosecution before the investigating or trial court
- the implementation of an alternative procedure to prosecution
- the classification without straightforward continuation
From now on, the disappearance of “dry” classifications without follow-up in cases where perpetrators are identified and arrested is the rule.
It suffices to refer to the circulars of public action of the Chancellery which no longer contemplate the rankings without follow-up. It is the era of Zero tolerance. Thus, the circular "penal policy" of May 9, 2001 recommends that the penal response be brought "by an increasing use of alternatives to prosecution".
The circular of May 14, 2004, is even more directive “the response that the prosecutor can provide when an offense is committed by an identified person must, in principle, consist either in the setting in motion of the public action, or in a alternative procedure ”.
What happens if the prosecutor does not follow up on a complaint and closes the case? At first glance, the principle of the expediency of prosecutions gives full power to the prosecutor. But it is not, because his choice can be called into question in several ways.
Referral to the dean of the examining magistrates
The victim or any person claiming to be aggrieved may, despite the refusal of the prosecutor, initiate public action.
It can seize the dean of the examining magistrates or the trial court (by direct citation), the law of March 5, 2007 specifies that in order to be able to initiate the proceedings the victim must:
- file a complaint with the constitution of civil party (the prosecution is then obliged to prosecute)
- provide proof of the public prosecutor's refusal to prosecute (he must send a reasoned letter specifying why he is closing the case)
- demonstrate that his complaint went unanswered for more than three months.
The prosecutions imposed by the hierarchy
The public prosecutor and his deputies
The public prosecutor controls the assessment made by his subordinates called the substitutes. The law of March 9, 2004 codified in articles 36 and 37 of the code of criminal procedure gives the public prosecutor the possibility of giving instructions to prosecute
The Attorney General
The victim can also lodge an appeal with the public prosecutor, who is the hierarchical superior of the public prosecutor, against the decision of classification without continuation. This is the hypothesis provided for in Article 40-3 of the Code of Criminal Procedure which provides that any person who has denounced facts to the Public Prosecutor has not been followed up.
The Attorney General can then:
- Order the public prosecutor to initiate proceedings
- Inform the interested party that their appeal is unfounded.
The orientation of penal policy
The circular known as "public action" of May 9, 2001 and included in articles 30 and 35 gives a definition of the means and actions to be implemented to take into account the guidelines provided by the political authorities.
For example, if the government decides to focus on violence against women, there will be zero impunity for all the facts noted (prosecutions, reports, filing of complaints…) there must necessarily be a penal response.
This orientation of the penal policy makes it possible to harmonize and to frame the decisions of the public prosecutor's office especially the national territory.