The peculiarity of an alternative to prosecution is that it is not a criminal prosecution. The offender does not go to court. These measures constitute a "third way" between the trial and the dismissal.
The alternative measures are used to fight against petty and medium delinquency and apply to both adults and minors.
They are only possible if the facts are of a contravention or tort nature (They do not apply to crimes!).
They are mainly used in the field of narcotics, alcoholic driving, traffic tickets, damage to public property, tags, insults, etc.
And only if these measures make it possible to ensure compensation for the damage caused to the victim, to put an end to the disturbance resulting from the offense or to contribute to the reclassification of the perpetrator.
If the offender disputes the facts, he must be heard by a judge to exercise his rights of defense and will go to court.
According to articles 41-1 et seq. Of the Code of Criminal Procedure, an alternative measure will be implemented by the public prosecutor every time:
« That such a measure is likely to ensure compensation for the damage caused to the victim, to put an end to the disturbance resulting from the offense or to contribute to the reclassification of the perpetrator, the public prosecutor may, before its decision on public action, directly or through a judicial police officer, a delegate or a mediator of the public prosecutor ... »
These measures have the advantage of reconciling both the public interest and those involved. The latter, in the event of an offense, may be penalized without having to go to court.
They may apply to both natural and legal persons.
It should be noted that for the latter, law n ° 2016-1691 of December 9, 2016 relating to "transparency, the fight against corruption and the modernization of economic life", codified in article 41-1 -2 of the Code of Criminal Procedure, extended the application of alternative measures to financial crimes.
They do not appear in the criminal record and since they are not criminal proceedings within the meaning of article 132-10 of the penal code, these measures cannot establish a first term of recidivism! (Cass. Crim., Of November 30, 2010, n ° 10-80.460)
Except the measures of penal composition and Appearance on Prior Recognition of Guilt (CRPC) which will appear in B1 (but not in B2).
The particularity of these measures from a procedural point of view is that they are suspensive and non-interrupting prescription.
This means that if the accused persons who, after having accepted them, refuse to submit to the measures decided by the public prosecutor can be prosecuted before the police court, if it is a contravention, or the criminal court if it is an offense.
The other particularity is that they will be implemented by a person delegated or mandated by the public prosecutor.
The 1st paragraph of article 41-1 provides that the public prosecutor can implement an alternative measure to prosecution or a criminal composition "directly or through an OPJ, a delegate or a mediator of the public prosecutor ”.
The public prosecutor does not come to mediate or call for the law! He will delegate this mission to the Judicial Police Officer responsible for hearing the accused.
They apply in priority to first-time offenders. In case of reiteration of the facts (recurrences) it should be known that these alternative measures will apply in a limited way and in the sense of severity:
- The call to the law
- The repair
- The estrangement of the violent partner
- Criminal mediation
- Orientation to a health, social or professional structure
- The appearance on Prior Acknowledgment of Guilt (CRPC)
When these measures are exhausted, in the event of a repeat offense, the prosecutor will have no other choice but to initiate proceedings in court.
The least serious and the most common measures are: the call to the law, the regulations and the reparation.
The call to the law
Provided for in article 41-1,1 ° of the Code of Criminal Procedure, the reminder of the law is a form of admonition.
Often, it takes place after the collection of the hearing of the accused by a Judicial Police Officer (OPJ). This is to remember that the alleged facts constitute a violation of law so that the respondent becomes aware of his actions to dissuade him from any repetition.
This measure may also be implemented by a delegate of the public prosecutor.
If the offense is related to the violation of legislative or regulatory provisions (lack of a building permit, etc.) the offender will be asked to regularize his situation and obtain the title he lacks.
The measurement will be carried out on the production of supporting documents.
It is to disinterest the victim. The author must return the fraudulently removed object (in the event of theft), repair and compensate them, or compensate the victim.