The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
The prosecutors are magistrates nominated as the other judicial officials: by decree of the President of Republic, on the proposition of the Minister of Justice, and after the opinion of the superior Council of the Magistrature (Sect. 16 of the law n° 94-100 of the February 5, 1994). However, the Prosecutor-General of the court of appeal and the Cour de Cassation is appointed by decree without the opinion of the Superior Council of Magistrature (Sect. 28 of the ordinance n° 58-1270 of December 22, 1958).
However, even if there are similarities, the office of public prosecutor has some characteristics that can not be found in that of other magistrates:
- members of the public prosecutor’s office may not be challenged (Sect. 669 subs. 2 CCP);
- regarding jurisdictions and private parties, the public prosecutor is independent;
- the public prosecutor is not accountable if he wrongly exercises public prosecution;
- the public prosecutor is submitted to a hierarchical organisation (the Minister of Justice is the highest authority in the prosecution service) which causes limitations in terms of the opportunity principle in prosecutions. Whilst the hierarchical organisation offers important advantages, it also sets limits.
Furthermore, French law contains some measures that authorise several administrations to initiate public prosecution.
Hierarchical relations between the prosecutor general and the Minister of Justice
First of all, hierarchical superiors and the Minister of Justice, who is politically accountable for the policy of the prosecution service, have influence over prosecutors (Sect. 5 of the ordinance of December 22, 1958). According to the Sect. 36 CCP, ‘The Minister of Justice may notify the prosecutor general of offences against criminal laws of which he has gained knowledge, direct him to initiate or to bring about initiation of a prosecution by written instructions which are attached to the case file, and to refer to the competent court such written submissions as the Minister deems appropriate’. Therefore, the Minister of Justice must inform the prosecutor general who will then instruct the district prosecutor. The Minister of Justice can be questioned by the Parliament about the instructions given. It should be noted here, that whilst the Minister of Justice can order a prosecutor to initiate prosecution, he cannot order its discontinuation.
In France, three ranks of prosecutors exist with varying attributions:
- the district prosecutor attached to the police, correctional and assize court. He is in charge of implementation of prosecution policy;
- the prosecutor general attached to the appeal court;
- the prosecutor general attached to the court of Cassation.
Hierarchical relations between prosecutors and the Minister of Justice
Members of the prosecution service are hierarchically dependent except the prosecutor general attached to the court of Cassation. Thus, that the prosecutor general attached to the appeal court holds authority over all public prosecutors within the area of jurisdiction of that court (Sect. 37 CCP). In turn, the latter hold authority over police prosecutors attached to the police courts within their area of jurisdiction and may notify them of petty offences of which they have received notice and direct them to initiate a prosecution. They may also, where appropriate, request the initiation of a judicial investigation (Sect. 44 CCP).
The hierarchical system obliges subordinates to keep their immediate superior informed. Thus, the prosecutor general attached to the appeal court must keep the Minister of Justice informed about important cases within his area of jurisdiction in order to ask him for instructions. In the same way, the district prosecutor has to inform the prosecutor general immediately about important cases and send him a monthly statement of cases pending within the jurisdiction (Sect. 35, subs. 2 CCP).
Also, many disciplinary sanctions within the hierarchical organisation are provided by law. If a prosecutor refuses to obey to his immediate superior he risks to be called to order, to be transferred, or a retrogression and even a revocation. However, the Minister of Justice who wants to call a member of the public prosecution service to account must ask for the opinion of the competent section of the superior council of the Magistrature (Sect. 58-1 of the ordinance of December 22, 1958). However, even this opinion is not binding for the Minister of Justice. These sanctions are not very often applied in practice. Moreover, the Council of State holds itself incompetent to get involved in a decision made by the Minister of Justice because of the principle of separation of powers between authorities.
The opportunity principle and prosecutions
Before going to court, the prosecutor must examine the situation in order to decide whether or not to initiate prosecution.
To begin with, the prosecutor will check that he is competent to deal with the case submitted.
Then, he will have examine whether the facts constitute a criminal offence. If this is not the case, the case will be dropped. When the offences have been committed against a minor and fall within the scope of Sects. 222-23 to 222-32 and 227-22 to 227-27 CCP, discontinuation of the case must be reasoned and notified in writing. However, discontinuation is not an irreversible decision, which explains why public prosecution can be exercised later (within the delays mentioned in Sects. 7, 8 and 9 CCP). Moreover, this decision is considered an administrative decision and not a judicial decision. That is why only a hierarchical resort could be introduced close to the prosecutor general who could order to initiate prosecution.
Subsequently, the prosecutor who has decided that an offence has been committed will have to make a decision on how to deal with denunciations and complaints. Sometimes, there are reasons that justify a prosecutor’s refusal to initiate prosecution. For example, when the victim took part in committing the offence, when the offender has compensated the victim or when prejudice is not very important because when the offence is not serious, prosecution is less serious.
However, if the prosecutor decides to initiate public prosecution, a preliminary judicial investigation is compulsory where a felony has been committed. In the absence of special provisions, it is optional for misdemeanours. It may also be applied for petty offences if this is requested by the district prosecutor pursuant to Sect. 44 CCP. The investigating judge may only investigate in accordance with a submission made by the district prosecutor.
The prosecutor can also decide not to retain all the aggravating circumstances or to consider a felony as a misdemeanour. This possibility can be used at many instances in the procedure. However, Sect. 368 CCP prohibited using this possibility after the judgement. Clearly, no person lawfully acquitted may be re-arrested or re-accused on account of the same facts, even when under a different qualification. However, the possibility can be used during judgement or before it. Thus, the authorities responsible for prosecuting and those responsible for investigating can adopt a wrong qualification. This requires the agreement of the privates parties involved.
Furthermore, there are others possibilities offered to the prosecutor which allow a conviction of the offender without having to go to court. The first system appeared with the law of the January 4, 1993 that created the médiation pénale. There are two kinds of mediation: one for majors and the other one for minors. Since the law of June 23, 1999, Sect. 41-1 CCP states that ‘Where it appears that such a measure is likely to secure reparation for the damage suffered by the victim, or to put an end to the disturbance resulting from the offence or contribute to the reintegration of the offender, the district prosecutor may, directly or by delegation:
1. bring the duties imposed by law to the attention of the offender;
2. direct the offender towards a sanitary, social or professional organisation;
3. require the offender to regularise his situation under any law or regulation;
4. require the offender to make good the damage caused by the offence;
5. with the consent of the parties, have mediation started between the offender and the victim.
The acts specified under this Section suspend the limitation period for public prosecution’.
The same law created an other system called composition pénale that is explained in Sects. 41-2 and 41-3 CCP.
Section 41-2 states that prior to any public prosecution being instituted, the district prosecutor may propose, directly or through an authorised person, criminal mediation to an adult person who admits having committed one or more designated misdemeanours such as destruction, domestic violence and abuse of trust. This would involve one or more of the following orders:
1. to pay to the Public Treasury a mediator fine. The amount of such a mediator fine, which may not exceed either € 3,750,- or half of the amount of maximum fine for the offence, is fixed in accordance with the gravity of the facts as well as the income and expenses of the person. Payment may be made by instalments, in accordance with a schedule of payments fixed by the district prosecutor, within a period which may not exceed one year;
2. to hand over to the State the object which was used to or intended to commit the offence with or which is the product of it;
3. to surrender a driving license for a maximum period of six months, or a permit to hunt for a maximum period of four months to the clerk’s office of the first instance court;
4. to undertake unpaid work for the benefit of the community for a maximum of sixty hours, over a period which may not exceed six months or to follow training within a sanitary, social or professional organisation for three months maximum.
Where the victim is identified, the district prosecutor must propose to the offender that he make good the damage caused by his offence, unless the offender can show that the damage has already been made good. The prosecutor must require that this happens within a period, which may not exceed six months. He informs the victim of this proposal.
The district prosecutor’s proposal for criminal mediation may be brought to the knowledge of the offender through a judicial police officer. Here it takes the form of written decision signed by the prosecutor, which specifies the nature and quantum of the measures proposed and which is endorsed on the file.
Criminal mediation may be proposed in a public centre for legal advice. The person to whom criminal mediation is proposed is informed that he may be assisted by a lawyer before giving his consent to the district prosecutor’s proposal. This consent is recorded in an official record. A copy of the official record is given to the offender.
Where the offender consents to the measures proposed, the district prosecutor addresses the President of the Tribunal de Grande Instance by way of a petition seeking approval of the mediation. The district prosecutor informs the offender of this and, where necessary, the victim. The President of the Tribunal may proceed to hear offender and victim, assisted, where necessary, by their lawyers. Where the judge makes an order approving the mediation, the measures decided are put into effect. The decision of the President of the Tribunal de Grande Instance, which is notified to the offender and, where necessary, the victim, is not open to appeal.
Where the person does not accept mediation or, after having given his consent, does not fully comply with the measures decided on, or where the approval required is not given, the district prosecutor decides what further action to take. In the case of prosecution and conviction, account is taken, where appropriate, of the work already accomplished and sums already paid by the offender.
Prosecution is suspended between the dates when the district prosecutor proposes criminal mediation and the expiry of the time granted for the mediation to be carried out.
Successful completion of criminal mediation terminates prosecution. However, this does not cancel out the right of a civil party to issue a summons before the correctional court under conditions laid down by the present Code. The court only rules on civil aspects of the case, on examining the file, which is open for discussion and the composition penal is registered in the criminal records.
The conditions for the application of the present Section are determined by Decree in the Council of State.
Section 41-3 CCP states that criminal mediation can also be applied in cases of assault, minor criminal damage and other criminal offences mentioned on a list issued by the Council of State. The maximum amount of the mediator fine may not exceed € 750,- nor half the maximum fine applicable to the offence, the period before a driving license or hunting permit is returned may not exceed two months and the length of unpaid work may not exceed thirty hours, within a maximum period of three months. The application to validate the arrangement is brought before a judge.
The law Perben II has completed this procedure with its Sect. 71: it specifies the offences concerned by this procedure as well as the measures that can be ordered.
Finally, the law of the March 9, 2004 created a French kind of plea bargaining. This principle is contained in the Sect. 137 of the law that will create the Sects. 495-7 to 495-16 CCP. According to this Section, the offender can ask for the use of this procedure. The public prosecutor receives the offender’s declaration of guilt and proposes a penalty to this person:
- if he accepts, the judge can approve the penalty and his decision will be read during a public hearing. If the judge refuses to approve the punishment, the public prosecutor will then initiate prosecution according to the normal rules;
- the offender should have 10 days to give an answer to the public prosecutor;
- if the offender refuses, the public prosecutor can present the offender in court or before the liberty and custody judge.
This Section of the law has been modified by the decision of the March 2, 2004 of the Constitutional Council that considered that the prosecutor decided alone on the implementation of this system. That is why the decision must be approved by a judge and read during a public hearing.
The limits to the principle
Firstly, a prosecutor cannot prosecute when there are legal reasons which forbid prosecution. This applies to the death of the offender, amnesty, repeal of law, authority of the judged thing, compromise, and withdrawal of the complaint.
Moreover, there are some cases which cannot be prosecuted without a complaint. That is, for instance, the case for offences of insult or slander against a government’s member (Sect. 48 of the law of the July 29, 1881), the offences committed against the private life (Sect. 226-6 CC), the haunt committed in the property of others, the offences committed abroad against a person by a French citizen (Sect. 113-8 CC).
Sometimes prosecution is dependent on a complaint filed by the administration. This applies to fiscal offences or is also required in the area of fiscal relations with foreign countries.
Furthermore, there are some persons who cannot be prosecuted without authorisation: the members of the Parliament (Sect. 26 of the Constitution), the members of the European Parliament, the President of Republic and the Ministers. In some other cases, prosecution cannot be initiated before a giving in notice or without the opinion of an authority (for some maritime offences), or before a decision of an other court.
Generally, the complaint, the withdrawal of a complaint, the compensation of the victim, are not binding for the prosecutor. However, according to Sect. 85 CCP, any person claiming to have suffered harm from a felony or misdemeanour may petition to become a civil party by filing a complaint with the competent investigating judge. In this case, the prosecutor has to request access to judicial information.
Furthermore, the refusal of the prosecutor to prosecute can be passed over by an order coming from the prosecutor general or the Minister of Justice (Sects. 36 and 37 CCP). By that order, the Minister of Justice or the Prosecutor-General of the court of appeal, require the public prosecutor to prosecute by a written order that will remain in the file until the trial. This way, it is clear for all why prosecution has started.
The limits of the hierarchical organisation
According to Sect. 41 CCP, the prosecutors general and the district prosecutors have some proper prerogatives. That means that a district prosecutor can initiate prosecution against the wishes of a prosecutor general and the prosecution initiated is valid because the seized court is obliged to make a decision. In practice, this kind of problem is rare. The term proper prerogatives only means that a district prosecutor can order an act without consulting the prosecutor general in all ordinary cases.
According to Sect. 33 CCP, the public prosecutor is bound to make written submissions following the instructions given under the conditions set out in Sects. 36, 37 and 44. He is free to make such oral submissions as he believes to be in the interest of justice. This Section is the translation of a French adage ‘La plume est serve, mais la parole est libre’. This contradiction between the freedom of the public prosecutor in the court and the obligatory obedience for written acts can be surprising.
However, it can be explained by the hybrid nature of the role of public prosecutor: civil servant in the office and magistrate in court. The absolute freedom of the prosecutor during the hearing was underlined by the court of Cassation in a decision of the May 13, 1973. However this rule must respect the principle of the rights of the prosecuted person who can consult the documents of the case and discuss the public prosecutor’s arguments.
The administrations that can initiate the public prosecution
In France, it is a tradition to allow some specific administrations to initiate public prosecution. This right depends on kind of offences committed because Parliament has maintained the rights of the public prosecutor in some cases:
- regarding misdemeanours and petty offences which violate forestry or rural property, the forestry administration exercises the public prosecution conjointly with the public prosecutor (Sect. L. 238-2 and 3 Rural Code and Sect. L. 153-5 Forestry Code);
- regarding the preservation of the public highways, the department of civil engineering exercises public prosecution and uses the seat of the public prosecutor during the hearing;
- regarding customs offences, two actions exist: a public one for the application of sanctions initiated by the public prosecutor and a fiscal one for the application of the fiscal penalties exercised by the fiscal administration whilst the public prosecutor can exercise this action conjointly with the public one.
Public prosecution initiated by those administrations is different. On the one hand, administrations are more powerful than the public prosecutor because they can withdraw and compromise. On the other hand, whereas the public prosecutor is unaccountable, administrations are liable for paying the expenses of the trial if their actions fell through.
The Relation between the Public Prosecutor and the Minister of Justice
The prosecutors are magistrates nominated as the other judicial officials: by decree of the President of Republic, on the proposition of the Minister of Justice, and after the opinion of the superior Council of the Magistrature (Sect. 16 of the law n° 94-100 of the February 5, 1994). However, the Prosecutor-General of the court of appeal and the Cour de Cassation is appointed by decree without the opinion of the Superior Council of Magistrature (Sect. 28 of the ordinance n° 58-1270 of December 22, 1958).
However, even if there are similarities, the office of public prosecutor has some characteristics that can not be found in that of other magistrates:
- members of the public prosecutor’s office may not be challenged (Sect. 669 subs. 2 CCP);
- regarding jurisdictions and private parties, the public prosecutor is independent;
- the public prosecutor is not accountable if he wrongly exercises public prosecution;
- the public prosecutor is submitted to a hierarchical organisation (the Minister of Justice is the highest authority in the prosecution service) which causes limitations in terms of the opportunity principle in prosecutions. Whilst the hierarchical organisation offers important advantages, it also sets limits.
Furthermore, French law contains some measures that authorise several administrations to initiate public prosecution.
Hierarchical relations between the prosecutor general and the Minister of Justice
First of all, hierarchical superiors and the Minister of Justice, who is politically accountable for the policy of the prosecution service, have influence over prosecutors (Sect. 5 of the ordinance of December 22, 1958). According to the Sect. 36 CCP, ‘The Minister of Justice may notify the prosecutor general of offences against criminal laws of which he has gained knowledge, direct him to initiate or to bring about initiation of a prosecution by written instructions which are attached to the case file, and to refer to the competent court such written submissions as the Minister deems appropriate’. Therefore, the Minister of Justice must inform the prosecutor general who will then instruct the district prosecutor. The Minister of Justice can be questioned by the Parliament about the instructions given. It should be noted here, that whilst the Minister of Justice can order a prosecutor to initiate prosecution, he cannot order its discontinuation.
In France, three ranks of prosecutors exist with varying attributions:
- the district prosecutor attached to the police, correctional and assize court. He is in charge of implementation of prosecution policy;
- the prosecutor general attached to the appeal court;
- the prosecutor general attached to the court of Cassation.
Hierarchical relations between prosecutors and the Minister of Justice
Members of the prosecution service are hierarchically dependent except the prosecutor general attached to the court of Cassation. Thus, that the prosecutor general attached to the appeal court holds authority over all public prosecutors within the area of jurisdiction of that court (Sect. 37 CCP). In turn, the latter hold authority over police prosecutors attached to the police courts within their area of jurisdiction and may notify them of petty offences of which they have received notice and direct them to initiate a prosecution. They may also, where appropriate, request the initiation of a judicial investigation (Sect. 44 CCP).
The hierarchical system obliges subordinates to keep their immediate superior informed. Thus, the prosecutor general attached to the appeal court must keep the Minister of Justice informed about important cases within his area of jurisdiction in order to ask him for instructions. In the same way, the district prosecutor has to inform the prosecutor general immediately about important cases and send him a monthly statement of cases pending within the jurisdiction (Sect. 35, subs. 2 CCP).
Also, many disciplinary sanctions within the hierarchical organisation are provided by law. If a prosecutor refuses to obey to his immediate superior he risks to be called to order, to be transferred, or a retrogression and even a revocation. However, the Minister of Justice who wants to call a member of the public prosecution service to account must ask for the opinion of the competent section of the superior council of the Magistrature (Sect. 58-1 of the ordinance of December 22, 1958). However, even this opinion is not binding for the Minister of Justice. These sanctions are not very often applied in practice. Moreover, the Council of State holds itself incompetent to get involved in a decision made by the Minister of Justice because of the principle of separation of powers between authorities.
The opportunity principle and prosecutions
Before going to court, the prosecutor must examine the situation in order to decide whether or not to initiate prosecution.
To begin with, the prosecutor will check that he is competent to deal with the case submitted.
Then, he will have examine whether the facts constitute a criminal offence. If this is not the case, the case will be dropped. When the offences have been committed against a minor and fall within the scope of Sects. 222-23 to 222-32 and 227-22 to 227-27 CCP, discontinuation of the case must be reasoned and notified in writing. However, discontinuation is not an irreversible decision, which explains why public prosecution can be exercised later (within the delays mentioned in Sects. 7, 8 and 9 CCP). Moreover, this decision is considered an administrative decision and not a judicial decision. That is why only a hierarchical resort could be introduced close to the prosecutor general who could order to initiate prosecution.
Subsequently, the prosecutor who has decided that an offence has been committed will have to make a decision on how to deal with denunciations and complaints. Sometimes, there are reasons that justify a prosecutor’s refusal to initiate prosecution. For example, when the victim took part in committing the offence, when the offender has compensated the victim or when prejudice is not very important because when the offence is not serious, prosecution is less serious.
However, if the prosecutor decides to initiate public prosecution, a preliminary judicial investigation is compulsory where a felony has been committed. In the absence of special provisions, it is optional for misdemeanours. It may also be applied for petty offences if this is requested by the district prosecutor pursuant to Sect. 44 CCP. The investigating judge may only investigate in accordance with a submission made by the district prosecutor.
The prosecutor can also decide not to retain all the aggravating circumstances or to consider a felony as a misdemeanour. This possibility can be used at many instances in the procedure. However, Sect. 368 CCP prohibited using this possibility after the judgement. Clearly, no person lawfully acquitted may be re-arrested or re-accused on account of the same facts, even when under a different qualification. However, the possibility can be used during judgement or before it. Thus, the authorities responsible for prosecuting and those responsible for investigating can adopt a wrong qualification. This requires the agreement of the privates parties involved.
Furthermore, there are others possibilities offered to the prosecutor which allow a conviction of the offender without having to go to court. The first system appeared with the law of the January 4, 1993 that created the médiation pénale. There are two kinds of mediation: one for majors and the other one for minors. Since the law of June 23, 1999, Sect. 41-1 CCP states that ‘Where it appears that such a measure is likely to secure reparation for the damage suffered by the victim, or to put an end to the disturbance resulting from the offence or contribute to the reintegration of the offender, the district prosecutor may, directly or by delegation:
1. bring the duties imposed by law to the attention of the offender;
2. direct the offender towards a sanitary, social or professional organisation;
3. require the offender to regularise his situation under any law or regulation;
4. require the offender to make good the damage caused by the offence;
5. with the consent of the parties, have mediation started between the offender and the victim.
The acts specified under this Section suspend the limitation period for public prosecution’.
The same law created an other system called composition pénale that is explained in Sects. 41-2 and 41-3 CCP.
Section 41-2 states that prior to any public prosecution being instituted, the district prosecutor may propose, directly or through an authorised person, criminal mediation to an adult person who admits having committed one or more designated misdemeanours such as destruction, domestic violence and abuse of trust. This would involve one or more of the following orders:
1. to pay to the Public Treasury a mediator fine. The amount of such a mediator fine, which may not exceed either € 3,750,- or half of the amount of maximum fine for the offence, is fixed in accordance with the gravity of the facts as well as the income and expenses of the person. Payment may be made by instalments, in accordance with a schedule of payments fixed by the district prosecutor, within a period which may not exceed one year;
2. to hand over to the State the object which was used to or intended to commit the offence with or which is the product of it;
3. to surrender a driving license for a maximum period of six months, or a permit to hunt for a maximum period of four months to the clerk’s office of the first instance court;
4. to undertake unpaid work for the benefit of the community for a maximum of sixty hours, over a period which may not exceed six months or to follow training within a sanitary, social or professional organisation for three months maximum.
Where the victim is identified, the district prosecutor must propose to the offender that he make good the damage caused by his offence, unless the offender can show that the damage has already been made good. The prosecutor must require that this happens within a period, which may not exceed six months. He informs the victim of this proposal.
The district prosecutor’s proposal for criminal mediation may be brought to the knowledge of the offender through a judicial police officer. Here it takes the form of written decision signed by the prosecutor, which specifies the nature and quantum of the measures proposed and which is endorsed on the file.
Criminal mediation may be proposed in a public centre for legal advice. The person to whom criminal mediation is proposed is informed that he may be assisted by a lawyer before giving his consent to the district prosecutor’s proposal. This consent is recorded in an official record. A copy of the official record is given to the offender.
Where the offender consents to the measures proposed, the district prosecutor addresses the President of the Tribunal de Grande Instance by way of a petition seeking approval of the mediation. The district prosecutor informs the offender of this and, where necessary, the victim. The President of the Tribunal may proceed to hear offender and victim, assisted, where necessary, by their lawyers. Where the judge makes an order approving the mediation, the measures decided are put into effect. The decision of the President of the Tribunal de Grande Instance, which is notified to the offender and, where necessary, the victim, is not open to appeal.
Where the person does not accept mediation or, after having given his consent, does not fully comply with the measures decided on, or where the approval required is not given, the district prosecutor decides what further action to take. In the case of prosecution and conviction, account is taken, where appropriate, of the work already accomplished and sums already paid by the offender.
Prosecution is suspended between the dates when the district prosecutor proposes criminal mediation and the expiry of the time granted for the mediation to be carried out.
Successful completion of criminal mediation terminates prosecution. However, this does not cancel out the right of a civil party to issue a summons before the correctional court under conditions laid down by the present Code. The court only rules on civil aspects of the case, on examining the file, which is open for discussion and the composition penal is registered in the criminal records.
The conditions for the application of the present Section are determined by Decree in the Council of State.
Section 41-3 CCP states that criminal mediation can also be applied in cases of assault, minor criminal damage and other criminal offences mentioned on a list issued by the Council of State. The maximum amount of the mediator fine may not exceed € 750,- nor half the maximum fine applicable to the offence, the period before a driving license or hunting permit is returned may not exceed two months and the length of unpaid work may not exceed thirty hours, within a maximum period of three months. The application to validate the arrangement is brought before a judge.
The law Perben II has completed this procedure with its Sect. 71: it specifies the offences concerned by this procedure as well as the measures that can be ordered.
Finally, the law of the March 9, 2004 created a French kind of plea bargaining. This principle is contained in the Sect. 137 of the law that will create the Sects. 495-7 to 495-16 CCP. According to this Section, the offender can ask for the use of this procedure. The public prosecutor receives the offender’s declaration of guilt and proposes a penalty to this person:
- if he accepts, the judge can approve the penalty and his decision will be read during a public hearing. If the judge refuses to approve the punishment, the public prosecutor will then initiate prosecution according to the normal rules;
- the offender should have 10 days to give an answer to the public prosecutor;
- if the offender refuses, the public prosecutor can present the offender in court or before the liberty and custody judge.
This Section of the law has been modified by the decision of the March 2, 2004 of the Constitutional Council that considered that the prosecutor decided alone on the implementation of this system. That is why the decision must be approved by a judge and read during a public hearing.
The limits to the principle
Firstly, a prosecutor cannot prosecute when there are legal reasons which forbid prosecution. This applies to the death of the offender, amnesty, repeal of law, authority of the judged thing, compromise, and withdrawal of the complaint.
Moreover, there are some cases which cannot be prosecuted without a complaint. That is, for instance, the case for offences of insult or slander against a government’s member (Sect. 48 of the law of the July 29, 1881), the offences committed against the private life (Sect. 226-6 CC), the haunt committed in the property of others, the offences committed abroad against a person by a French citizen (Sect. 113-8 CC).
Sometimes prosecution is dependent on a complaint filed by the administration. This applies to fiscal offences or is also required in the area of fiscal relations with foreign countries.
Furthermore, there are some persons who cannot be prosecuted without authorisation: the members of the Parliament (Sect. 26 of the Constitution), the members of the European Parliament, the President of Republic and the Ministers. In some other cases, prosecution cannot be initiated before a giving in notice or without the opinion of an authority (for some maritime offences), or before a decision of an other court.
Generally, the complaint, the withdrawal of a complaint, the compensation of the victim, are not binding for the prosecutor. However, according to Sect. 85 CCP, any person claiming to have suffered harm from a felony or misdemeanour may petition to become a civil party by filing a complaint with the competent investigating judge. In this case, the prosecutor has to request access to judicial information.
Furthermore, the refusal of the prosecutor to prosecute can be passed over by an order coming from the prosecutor general or the Minister of Justice (Sects. 36 and 37 CCP). By that order, the Minister of Justice or the Prosecutor-General of the court of appeal, require the public prosecutor to prosecute by a written order that will remain in the file until the trial. This way, it is clear for all why prosecution has started.
The limits of the hierarchical organisation
According to Sect. 41 CCP, the prosecutors general and the district prosecutors have some proper prerogatives. That means that a district prosecutor can initiate prosecution against the wishes of a prosecutor general and the prosecution initiated is valid because the seized court is obliged to make a decision. In practice, this kind of problem is rare. The term proper prerogatives only means that a district prosecutor can order an act without consulting the prosecutor general in all ordinary cases.
According to Sect. 33 CCP, the public prosecutor is bound to make written submissions following the instructions given under the conditions set out in Sects. 36, 37 and 44. He is free to make such oral submissions as he believes to be in the interest of justice. This Section is the translation of a French adage ‘La plume est serve, mais la parole est libre’. This contradiction between the freedom of the public prosecutor in the court and the obligatory obedience for written acts can be surprising.
However, it can be explained by the hybrid nature of the role of public prosecutor: civil servant in the office and magistrate in court. The absolute freedom of the prosecutor during the hearing was underlined by the court of Cassation in a decision of the May 13, 1973. However this rule must respect the principle of the rights of the prosecuted person who can consult the documents of the case and discuss the public prosecutor’s arguments.
The administrations that can initiate the public prosecution
In France, it is a tradition to allow some specific administrations to initiate public prosecution. This right depends on kind of offences committed because Parliament has maintained the rights of the public prosecutor in some cases:
- regarding misdemeanours and petty offences which violate forestry or rural property, the forestry administration exercises the public prosecution conjointly with the public prosecutor (Sect. L. 238-2 and 3 Rural Code and Sect. L. 153-5 Forestry Code);
- regarding the preservation of the public highways, the department of civil engineering exercises public prosecution and uses the seat of the public prosecutor during the hearing;
- regarding customs offences, two actions exist: a public one for the application of sanctions initiated by the public prosecutor and a fiscal one for the application of the fiscal penalties exercised by the fiscal administration whilst the public prosecutor can exercise this action conjointly with the public one.
Public prosecution initiated by those administrations is different. On the one hand, administrations are more powerful than the public prosecutor because they can withdraw and compromise. On the other hand, whereas the public prosecutor is unaccountable, administrations are liable for paying the expenses of the trial if their actions fell through.
