If the prosecution closes a victim's complaint, she can act by becoming a civil party to initiate public action.
Article 1 of the Code of Criminal Procedure envisages two means for initiating proceedings. The victim can either seize an investigating court (the investigating judge) or a trial court (the court).
Referral to the dean of the examining magistrates
According to article 85 of the code of criminal procedure “any person who claims to have been injured by a crime or an offense may bring a civil party before the competent investigating judge in application of articles 52 and 706-42 (of the Code of Criminal Procedure). "
The facts should not be punishable by a simple contravention. They have to be qualified as a misdemeanor or a felony.
Article 85 of the Code of Civil Procedure provides that the victim must submit a complaint to the dean specifying all the alleged facts with the evidence:
- refusal to continue (classification without continuation ...)
- from filing a complaint had no effect for more than 3 months.
Failing to provide these elements, the judge will issue an order of inadmissibility. These conditions, introduced in 2007, aim to prevent abusive or dilatory complaints.
Note: Filing a complaint suspends the limitation period pending a response, and therefore for 3 months.
The dean of the examining magistrates, communicates the letter of the victim to the public prosecutor.
Article 86 of the Code of Criminal Procedure specifies that the public prosecutor may ask the victim to produce all the evidence in his possession (testimony, etc.) or to give a statement on his version of the facts.
Once these elements have been gathered, he must give an opinion on the follow-up he intends to give to the case, namely:
- Support the prosecution with an introductory indictment.
- Confirm his refusal to prosecute, even in the event of the constitution of a civil party (prescriptions, non-constituted offense, etc.) and will issue motivated requests not to inform.
The investigating judge remains free to decide whether or not to prosecute the facts of which the victim complains.
However, only the facts denounced by the victim in his complaint will be prosecuted. He cannot requalify the facts, nor add to them. If the victim did not aim for the correct qualification, the error could not be rectified and the defendant could be acquitted by the court.
Referral to the criminal or police court
The criminal court will be competent for offenses and the police court for contraventions.
It is impossible to go directly to a trial court for a crime. An investigation must be conducted by a judge, with strict respect for the rights of the defense. In this case, only the investigating judge can, at the end of his investigation, decide whether or not to refer the defendant to a court.
The referral to the court is made by direct summons issued at least 10 days before the hearing (the deadlines are increased if the defendant lives abroad…).
Articles 550 et seq. Of the Code of Criminal Procedure subjects it to formal conditions:
- It must be delivered to the parties by a bailiff
- It sets out the charges, the texts of repression
- It specifies the court seised with the place, date and time of the hearing.
- She informs that non-appearance is punishable by law
To limit abusive referrals, article 392-1 requires the civil party to make a deposit which, in the event of an abusive or dilatory appeal, will be kept.
The civil party will however be exempted from deposit if it benefits from legal aid.
The role of the public prosecutor
Even if he initially refused to prosecute the charges, the public prosecutor must provide his cooperation and ensure that the defendant appears in court (articles 389 of the code of criminal procedure for the criminal court , and 531 for the police court).
The accused can also appear voluntarily before the trial court.
If he is not regularly summoned but appears freely before the court and agrees to be tried (the president of the court must ask him the question before the opening of the proceedings), his agreement purges the defects. procedure and the court is validly seized.
If he refuses, usually because he did not have time to prepare his defense, the hearing will simply be postponed and the case postponed to a later date.