Civil Claims Before Criminal Courts
Explanation
This presentation explains the rules regulating the work of the Public Prosecution (le ministère public) and the conduct of the public action (l'action publique). This text is merely an educational and explanatory commentary and not the legislative text itself, which is set out independently in its literal wording. The system begins with the organization of the department of each public prosecutor, where he heads his department and distributes the work falling within his jurisdiction among the assisting advocates general.
The Public Prosecution at the Court of Cassation is headed by a prosecutor general appointed by a decree adopted in the Council of Ministers based on the proposal of the Minister of Justice (le ministre de la justice). The authority of the Prosecutor General at the Court of Cassation (le procureur général près la Cour de cassation) encompasses all public prosecution judges, including the Government Commissioner at the Military Court. He may issue written or oral instructions regarding the conduct of the action, while these judges retain the freedom of speech during trial hearings (l'audience).
The Cassation Prosecutor General definitively resolves disputes relating to the authorization to prosecute. In all cases requiring authorization from a non-judicial authority for a criminal prosecution and a dispute arises between the authority and the public prosecution judges, the final decision rests with him, subject to compliance with the provisions of the Law Organizing the Legal Profession (Article 79).
The Minister of Justice has the right to request the Cassation Prosecutor General to conduct prosecutions regarding crimes of which he becomes aware. The Cassation Prosecutor General has the right, when necessary, to conduct the investigation directly or through his assistants or the judicial police (la police judiciaire) affiliated with him, without having the right to initiate prosecution.
The Cassation Prosecutor General exercises supervision over the personnel of the judicial police. He requests the initiation of prosecution against any of them who commits a crime during their employment without requesting authorization, and the ordinary judiciary is competent to hear it. The law also obliges security agencies and public prosecutions to inform him of serious crimes and to comply with his directives. It allows him to review the file of the investigating judge (le juge d'instruction) and to issue a warning to negligent public prosecution judges or propose their referral to the disciplinary council (le conseil de discipline).
Official legal articles
replace · 2001-08-18: Open the official text
insert · 2001-08-18: Open the official text
Think deeper
How did the legislator balance the hierarchical authority of the Cassation Prosecutor General in directing public prosecution judges and binding them to specific pleadings, with guaranteeing their freedom of speech in trial hearings and withholding the right of direct prosecution from him?
Flashcards
How is the Prosecutor General at the Court of Cassation appointed according to the law?
He is appointed by a decree adopted in the Council of Ministers based on the proposal of the Minister of Justice (Article 13).
What right do public prosecution judges retain despite being subject to the authority and instructions of the Cassation Prosecutor General?
They retain the freedom of speech in trial hearings.
What is the exception to the authority of the Cassation Prosecutor General to definitively resolve disputes over prosecution authorizations?
Compliance with the provisions of the Law Organizing the Legal Profession (Article 79).
Does the Prosecutor General at the Court of Cassation have the right to initiate prosecution directly when conducting an investigation upon the request of the Minister of Justice?
No, he has the right to conduct the investigation directly or through his assistants or his judicial police without having the right to initiate prosecution (Article 14).
What is the competent judicial authority to try a judicial police employee for a crime committed during his employment, and is prior approval required?
The ordinary judiciary is competent to hear the crime despite any provision to the contrary, and the prosecution is carried out without requesting authorization.
Who are the officials legally obliged to inform the Cassation Prosecutor General about serious crimes?
The Appellate Prosecutor General, the Financial Prosecutor General, the Government Commissioner at the Military Court, the Director General of the Internal Security Forces, the Director General of General Security, and the Director General of State Security (Article 16).
What disciplinary measures does the Cassation Prosecutor General possess against a negligent public prosecution judge?
He may issue a warning to him due to his negligence, or propose to the Judicial Inspection Board his referral to the disciplinary council.
Practice questions
In the event of a dispute between a non-judicial authority refusing to grant authorization to prosecute and the Appellate Public Prosecution, who has the authority to definitively resolve this matter?
The law grants the Prosecutor General at the Court of Cassation the authority to definitively resolve disputes over prosecution authorizations (Article 13). This is contrary to any general or special provision, subject to compliance with the provisions of the Law Organizing the Legal Profession (Article 79).
If the Minister of Justice requests the Cassation Prosecutor General to conduct prosecutions, and he conducts the investigation directly, what is the explicit legal restriction imposed on him?
The law permits the Cassation Prosecutor General to conduct the investigation directly or through his assistants or the judicial police (Article 14). However, it explicitly restricts this with the phrase without having the right to initiate prosecution.
What is the competent authority to try a member of the judicial police for a crime committed while performing his duties as an assistant to the Public Prosecution?
The ordinary judiciary is considered competent to hear this crime despite any provision to the contrary (Article 15). Prosecution is initiated against him without requesting authorization to prosecute him.
The Cassation Prosecutor General exercises his hierarchical authority over public prosecution judges by issuing instructions to conduct the action, however, the law protected their independence in a specific position, what is it?
Public prosecution judges are subject to the authority of issuing written or oral instructions in the conduct of the public action (Article 13). However, they retain the freedom of speech in trial hearings.
What is the authority granted to the Cassation Prosecutor General regarding files being heard by the investigating judge?
The Cassation Prosecutor General may review the investigation file handled by an investigating judge (Article 16). He may request the competent Prosecutor General to present the pleading that complies with his written directives.
How is the work and files falling within the jurisdiction of the Public Prosecution distributed?
Each prosecutor general heads his department and distributes the work falling within his jurisdiction among the advocates general who assist him (Article 12).
Case problems
While an inspector in the General Security was performing his duties as an assistant to the Public Prosecution investigating a forgery case, he committed a criminal offense consisting of physically assaulting a detainee. The Appellate Prosecutor General requested his criminal prosecution, but the Director General of General Security refused to grant authorization to prosecute, arguing the necessity of his prior approval and the obligation of his employees to be subject to a special jurisdiction. The Appellate Prosecutor General referred the matter to the Cassation Prosecutor General requesting the resolution of the dispute. Determine the legal basis for resolving this dispute, and what is the fate of the authorization condition and the competent court?
Model answer
This dispute is resolved by direct reference to the provisions of the Code of Criminal Procedure concerning the authorities of the Cassation Prosecutor General (Articles 13 and 15).
In all cases where criminal prosecution requires authorization or approval from a non-judicial authority and a dispute arises, the Prosecutor General at the Court of Cassation shall have the authority to definitively resolve this matter (Article 13). This is done contrary to any general or special provision, subject to compliance with the provisions of the Legal Profession Law which are not applicable here.
If an employee of the judicial police commits a criminal offense while performing his duties as an assistant to the Public Prosecution, the Cassation Prosecutor General has the right to request initiating prosecution against him without requesting authorization (Article 15).
As for the competent judicial authority, the ordinary judiciary is competent to hear this crime despite any provision to the contrary (Article 15).
Conclusion: The Cassation Prosecutor General definitively resolves the prosecution, no prior authorization is required, and jurisdiction is held exclusively by the ordinary judiciary.
Self-grading rubric
The Minister of Justice notified the Cassation Prosecutor General of the existence of financial crimes harming the state, requesting the conduct of prosecutions. The Cassation Prosecutor General proceeded to conduct the investigation directly and gather evidence, then issued a direct prosecution document against the suspects and referred them to trial. During the trial, the Cassation Prosecutor General issued binding instructions to the Advocate General attending the hearings, preventing him from making any oral pleading or expressing his opinion orally on the facts of the case. The defendants' counsel pleaded the invalidity of the prosecution issued by the Cassation Prosecutor General, and the Advocate General objected to being prevented from pleading orally. Explain the legal ruling on both issues.
Model answer
Regarding the direct prosecution by the Cassation Prosecutor General: The Minister of Justice has the right to request the Cassation Prosecutor General to conduct prosecutions (Article 14). The Cassation Prosecutor General also possesses the right to conduct the investigation directly or through his assistants or members of the judicial police.
However, the law restricted this authority with an explicit and decisive provision preventing him from the right to initiate prosecution (Article 14). Therefore, the Cassation Prosecutor General's direct initiation of prosecution is a procedure contrary to the explicit text. He should have referred the file to the competent Public Prosecution to initiate the public action (Article 13).
Regarding the restriction of the Advocate General's oral pleading: Prosecution judges are subject to the authority of the Cassation Prosecutor General and his written or oral instructions in the conduct of the action (Article 13).
Nevertheless, the law established an explicit guarantee stating that they retain the freedom of speech in trial hearings (Article 13).
Conclusion: The defendants' plea of the invalidity of the direct prosecution aligns with the legal prohibition of prosecution. Also, preventing the Advocate General from speaking in the trial hearing violates the legal guarantee granted to him.
Self-grading rubric
The Government Commissioner at the Military Court learned of a serious crime, so he informed the Cassation Prosecutor General about it, and one of the investigating judges undertook the investigation into it. The Cassation Prosecutor General requested to review the case file with the investigating judge, and also assigned the competent Prosecutor General to submit a written pleading that fully complies with his instructions, however, the public prosecution judge neglected the file, did not implement the instructions, and failed to perform his duty. What are the procedures and authorities that the Cassation Prosecutor General possesses in this case towards the file and towards the negligent judge according to the law?
Model answer
The law regulates the authorities of the Prosecutor General at the Court of Cassation in dealing with these facts in a specific and precise manner (Article 16).
Towards the investigating judge and the case file: The law grants the Cassation Prosecutor General the right to review the investigation file handled by an investigating judge (Article 16).
Towards the pleading in the action: The Cassation Prosecutor General has the right to request the competent Prosecutor General to present the pleading that complies with his written directives (Article 16). The latter is obliged to comply with his directives regarding serious crimes.
Towards the negligent public prosecution judge: The law grants the Cassation Prosecutor General two specific legal options (Article 16). He may issue a warning to the public prosecution judge due to his negligence in his work, or propose to the Judicial Inspection Board his referral to the disciplinary council.
Conclusion: The Cassation Prosecutor General possesses the right to review the file, impose the content of the written pleading, and issue a disciplinary warning to the negligent judge or request his referral for discipline.