According to the principle of the expediency of prosecutions, it is up to the prosecution to take a decision following:
- filing a complaint;
- police custody;
- judicial information (investigation carried out by the police at the request of the public prosecutor's office to verify whether the facts are true, and collect the evidence, etc.).
But if he does initiate criminal proceedings, he will have to choose between one of the following procedures.
Also called Appearance on Admission of Guilt (CRPC) is an alternative to prosecution, but we are talking about it here, because it differs from a simple reminder of the law ... The measure is listed in B1 and the prosecutor can consider a penalty including imprisonment.
Provided for in articles 495-7 to 495-16 of the Code of Criminal Procedure, the CRPC is possible if the accused does not dispute the facts. The public prosecutor can propose:
- A fine
- A prison sentence, which cannot be more than 1 year nor be more than half of the penalty incurred (if the facts are punished with a 3-year imprisonment (such as theft), the proposed penalty will necessarily be limited to 12 month)
- A main or additional penalty (training, internship, distance from home, TIG, etc.)
It does not apply to minors, press offenses, political offenses and offenses falling under a special law. Nor to willful or unintentional attacks against personal integrity and sexual assault punishable by articles 222-9 to 222-31-2 of the penal code.
Note: Since Law No. 2016-819 of June 21, 2016, economic and financial offenses, previously excluded, can now be the subject of a CRPC.
The summons by a Judicial Police Officer (COPJ)
Provided for in article 390-1 of the Code of Criminal Procedure, it is handed over to the perpetrator of an offense by a judicial police officer at the end of police custody or hearing.
It can also be issued by the director of a penitentiary establishment (detained person prosecuted for new facts, during pre-trial detention, etc.) or by a clerk.
It's a summons to appear in court. It specifies the place, date and time of the hearing during which the respondent will be tried.
The victim is notified of the hearing date.
The appearance by report (CPPV)
It is a Procès-Verbal noting the delivery of the copy of the summons to court to the accused.
This summons, framed in article 394-2 of the Code of Criminal Procedure, is used when the hearing is set within a period of between 10 days and 2 months.
It includes the date of appearance of the respondent before the court to be tried and must be submitted by the public prosecutor during a referral. But in practice, the COPJ is used much more.
Immediate appearance (CI)
The public prosecutor decides that the defendant will be tried shortly before the court.
The CI is only possible according to article 395 of the Code of Criminal Procedure for offenses punishable by imprisonment for 6 months in the case of flagrant offenses and 2 years in prison in the case of preliminary investigation (investigation police commissioned by the public prosecutor).
Article 397-6 of the Code of Criminal Procedure prohibits any CI for minors, press offenses, political offenses and offenses prosecuted by special texts.
The penal ordinance
The public prosecutor will seize a judge so that he renders an express judgment on a simple order without the accused persons having to appear.
Framed in Articles 495 of the Code of Procedure and following, it applies to simple and established facts.
It is not based on the acknowledgment of the facts of the accused but on the sole finding of the offense (speeding, driving under the influence of an alcoholic state, use of narcotics, etc.).
As this is a method of prosecution that is widely used and little known both in terms of its operation and its consequences, the entire procedure of the penal ordinance is studied in a dedicated page.
The opening of information
Article 79 of the Code of Criminal Procedure governs referral to an examining magistrate by introductory indictment.
The opening of an information is compulsory for crimes, if the accused incurs a prescribed penalty of + 7 years, and optional for offenses.
For contraventions, the prosecutor can only refer the matter to the judge on specific requisitions (article 44 of the Code of Criminal Procedure)
Once seized, the examining magistrate will open a judicial investigation. He will conduct the investigation and gather all the necessary elements to know if the facts are established before considering the referral to the trial court.