The Role of the Public Prosecutor in Relation to the Execution of Sanctions
Chapter IV
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
In this part, the most important is to avoid the confusion between the enforcement of the execution of sanctions, which is the mission of the public prosecutor, and the application of sanctions, which is the job of the post-sentencing judge.
The enforcement of execution of sanctions
According to the Sect. 707 CCP, the public prosecutor and the parties enforce the execution of the decision to the extent that each of them is concerned. However, in the district prosecutor’s name, the tax collector undertakes proceedings for the recovery of fines and confiscation.
The service in charge of the execution of the public prosecutor’s penalties was for a long time considered as secondary. However, this is not the case anymore since the implementation of the law of June 15, 2000.
The prosecutor mentioned in the Sect. 707 CCP is the prosecutor general for penalties pronounced by the assize court or by the correctional appeals division, and the district prosecutor who is responsible regarding the decision of the correctional court or police court.
There is no precision concerning the penalties pronounced for petty offences of the fourth first categories. However, as a police superintendent performs the public prosecutor’s duties, it would be logical that this person enforces the execution of the decision.
Furthermore, the prosecutor concerned can have to enforce the implementation of the decision on all national territory with the procedures of transmission or diffusion. Enforcement can even take place abroad through the application of international agreements in this area such as Schengen and Interpol.
Section 708 CCP affirms that execution takes place upon application made by the public prosecutor after the decision has become final. However, the appeal time limit open to the public prosecutor by Sects. 505 CCP and 548 CCP does not prevent the execution of the penalty. The execution of a penalty imposed for a petty offence or of a non-custodial misdemeanour penalty may be suspended or divided for serious medical, family, professional or social reasons. The decision is made either by the public prosecutor, or on the suggestion of the public prosecutor by the correctional court or police court in a hearing in chambers, according to whether the sentence must be suspended for less or more than three months. Where the trial court has decided that the execution of a fine, day-fine, or suspension of a driving license should be divided pursuant to Sect. 132-28 CC, such a decision may be varied pursuant to the conditions stated in the previous paragraph. However, excluded from penalties mentioned in the Sect. 707 CCP are civil penalties, fiscal or customs penalties and financial penalties.
The public prosecutor is also assisted by specific administrations for the enforcement of some penalties such as area banishment.
To enforce the execution of the decision, the prosecutor has access to a register with the penalties to enforce and the reasons for non-implementation (Sect. D48 CCP). The prosecutor can also decide not to enforce the execution of a penal decision, for instance if he considers the decision is illegal.
Under the authority of the Minister of Justice, the prosecutor also passes on to the national automated criminal records service:
1. convictions after adversarial hearings or convictions made by contumacy, and any convictions by default not challenged by application to set aside, imposed for a felony, a misdemeanour or a petty offence of the fifth class, as well as declarations of guilt accompanied by an exemption from penalty or a deferment of sentence, except where the entry of the decision on certificate n° 1 has expressly been excluded pursuant to Sect. 132-59 CC;
2. adversarial convictions, and convictions by default unchallenged by application to set aside, for petty offences of the first four classes where a prohibition, disqualification or incapacity has been imposed either as a main or additional penalty;
3. the decisions imposed by application of Sects. 8, 15, 16 and 28 of legislative order n° 45-174 of February 2, 1945, amended, governing juvenile delinquents;
4. disciplinary decisions imposed by the judiciary or by an administrative authority when they entail or impose a disqualification;
5. judgements ordering ordinary bankruptcy for a natural person, personal bankruptcy or the prohibition provided by Sect. 192 of law n° 85-98 of January 25, 1985 governing the judicial consolidation and liquidation of businesses;
6. all judgements ordering the prohibition from exercising parental authority or the withdrawal of any or all of the rights attached to it;
7. expulsion decisions taken against aliens;
8. convictions imposed by foreign courts which, pursuant to an international convention or agreement, have been notified to French authorities or have been enforced in France after transfer of the convicted persons.
The role of the post-sentencing judge: the application of sanctions
Regarding the penalties handed out at the trial, the prosecutor requests the post-sentencing judge to fix the conditions for execution. The prosecutor is under an obligation to pass onto the judge any useful information. The post-sentencing judge attached to each penitentiary institution determines for each convicted person the main terms of the penitentiary treatment. Within the limits and conditions set out by law, he grants non-custodial postings, seem-detentions, remissions, divisions and suspensions of penalties, permission for escorted leave, temporary leave, parole, postings under electronic supervision or he refers the case to the competent court to adapt the enforcement of the sentence. Except in urgent cases, he rules after hearing the opinion of the post-sentencing commission for the granting of remissions of sentence, authorisations for escorted leave, and temporary leave.
Most of the time the prosecutor is not directly in charge of the execution of penalties. However, his prerogatives are still important because he attends the sessions of the post sentencing commission and the decision made may be challenged by means of an appeal by the convicted person, the district prosecutor and the public prosecutor, within ten days of its notification. The appeal is brought before the local court of appeal.
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
In this part, the most important is to avoid the confusion between the enforcement of the execution of sanctions, which is the mission of the public prosecutor, and the application of sanctions, which is the job of the post-sentencing judge.
The enforcement of execution of sanctions
According to the Sect. 707 CCP, the public prosecutor and the parties enforce the execution of the decision to the extent that each of them is concerned. However, in the district prosecutor’s name, the tax collector undertakes proceedings for the recovery of fines and confiscation.
The service in charge of the execution of the public prosecutor’s penalties was for a long time considered as secondary. However, this is not the case anymore since the implementation of the law of June 15, 2000.
The prosecutor mentioned in the Sect. 707 CCP is the prosecutor general for penalties pronounced by the assize court or by the correctional appeals division, and the district prosecutor who is responsible regarding the decision of the correctional court or police court.
There is no precision concerning the penalties pronounced for petty offences of the fourth first categories. However, as a police superintendent performs the public prosecutor’s duties, it would be logical that this person enforces the execution of the decision.
Furthermore, the prosecutor concerned can have to enforce the implementation of the decision on all national territory with the procedures of transmission or diffusion. Enforcement can even take place abroad through the application of international agreements in this area such as Schengen and Interpol.
Section 708 CCP affirms that execution takes place upon application made by the public prosecutor after the decision has become final. However, the appeal time limit open to the public prosecutor by Sects. 505 CCP and 548 CCP does not prevent the execution of the penalty. The execution of a penalty imposed for a petty offence or of a non-custodial misdemeanour penalty may be suspended or divided for serious medical, family, professional or social reasons. The decision is made either by the public prosecutor, or on the suggestion of the public prosecutor by the correctional court or police court in a hearing in chambers, according to whether the sentence must be suspended for less or more than three months. Where the trial court has decided that the execution of a fine, day-fine, or suspension of a driving license should be divided pursuant to Sect. 132-28 CC, such a decision may be varied pursuant to the conditions stated in the previous paragraph. However, excluded from penalties mentioned in the Sect. 707 CCP are civil penalties, fiscal or customs penalties and financial penalties.
The public prosecutor is also assisted by specific administrations for the enforcement of some penalties such as area banishment.
To enforce the execution of the decision, the prosecutor has access to a register with the penalties to enforce and the reasons for non-implementation (Sect. D48 CCP). The prosecutor can also decide not to enforce the execution of a penal decision, for instance if he considers the decision is illegal.
Under the authority of the Minister of Justice, the prosecutor also passes on to the national automated criminal records service:
1. convictions after adversarial hearings or convictions made by contumacy, and any convictions by default not challenged by application to set aside, imposed for a felony, a misdemeanour or a petty offence of the fifth class, as well as declarations of guilt accompanied by an exemption from penalty or a deferment of sentence, except where the entry of the decision on certificate n° 1 has expressly been excluded pursuant to Sect. 132-59 CC;
2. adversarial convictions, and convictions by default unchallenged by application to set aside, for petty offences of the first four classes where a prohibition, disqualification or incapacity has been imposed either as a main or additional penalty;
3. the decisions imposed by application of Sects. 8, 15, 16 and 28 of legislative order n° 45-174 of February 2, 1945, amended, governing juvenile delinquents;
4. disciplinary decisions imposed by the judiciary or by an administrative authority when they entail or impose a disqualification;
5. judgements ordering ordinary bankruptcy for a natural person, personal bankruptcy or the prohibition provided by Sect. 192 of law n° 85-98 of January 25, 1985 governing the judicial consolidation and liquidation of businesses;
6. all judgements ordering the prohibition from exercising parental authority or the withdrawal of any or all of the rights attached to it;
7. expulsion decisions taken against aliens;
8. convictions imposed by foreign courts which, pursuant to an international convention or agreement, have been notified to French authorities or have been enforced in France after transfer of the convicted persons.
The role of the post-sentencing judge: the application of sanctions
Regarding the penalties handed out at the trial, the prosecutor requests the post-sentencing judge to fix the conditions for execution. The prosecutor is under an obligation to pass onto the judge any useful information. The post-sentencing judge attached to each penitentiary institution determines for each convicted person the main terms of the penitentiary treatment. Within the limits and conditions set out by law, he grants non-custodial postings, seem-detentions, remissions, divisions and suspensions of penalties, permission for escorted leave, temporary leave, parole, postings under electronic supervision or he refers the case to the competent court to adapt the enforcement of the sentence. Except in urgent cases, he rules after hearing the opinion of the post-sentencing commission for the granting of remissions of sentence, authorisations for escorted leave, and temporary leave.
Most of the time the prosecutor is not directly in charge of the execution of penalties. However, his prerogatives are still important because he attends the sessions of the post sentencing commission and the decision made may be challenged by means of an appeal by the convicted person, the district prosecutor and the public prosecutor, within ten days of its notification. The appeal is brought before the local court of appeal.
