Felony Court Trial and In Absentia Proceedings
Explanation
This explanation provides a simplified educational reading of the legal texts regulating criminal trials, and it is not a substitute for the texts of the legal articles themselves. The proceedings before the criminal court (la cour d'assises) begin with the preliminary interrogation phase (l'interrogatoire préalable), where the president or the delegated counselor asks the accused whether he has been notified of the indictment and the list of public prosecution witnesses, and whether he has appointed a lawyer. He also asks him about his social status and his observations on the charge and the investigations, and documents this in a record signed by the judge, the accused, and the clerk. If the accused has not appointed a lawyer, the president or the delegated counselor must request the head of the bar association to appoint a lawyer within twenty-four hours from the time of his notification, or he shall appoint one himself.
The president of the court undertakes setting the date of the trial and summoning the personal claimant and the witnesses to it. He issues a grace period decision against the accused who was released during the preliminary investigation to surrender himself to the court within twenty-four hours before the start of the trial. This time limit runs from the date of notification of the decision according to legal procedures. If the accused surrenders himself within the specified time limit, he is tried in his presence (contradictoirement) and the arrest warrant against him is executed. However, if he fails to surrender himself, he is tried in absentia and the special procedures for trying a fugitive from justice are applied to him.
In the session prepared for the trial, the accused appears without restraints, under the guard of internal security forces elements to prevent his escape. The president interrogates him to verify his full identity, personal status, criminal record, and whether he has appointed a lawyer. The explicit rule stipulates that the trial shall not take place in the absence of the defense lawyer (l'avocat de la défense). If he has not appointed a lawyer, the president requests the head of the bar association to assign one or appoints one himself. However, the law provides for a single exception that permits the trial of the accused without a lawyer, which is if the accused explicitly insists on refusing the assignment of any lawyer to defend him.
The trial session proceeds according to a specific procedural order after hearing the witnesses and collecting and discussing the evidence. The court gives the floor first to the personal claimant to present his demands, then the representative of the public prosecution (le ministère public) pleads, presenting his arguments, evidence, and demands. After that, the defense lawyer undertakes the pleading on behalf of his client and specifying his demands. The proceedings inevitably conclude by listening to the last words of the accused before the court decides to close the trial. Upon the issuance of the judgment, it is recorded in a special register for judgments, signed by the judges and the clerk, and its original is kept in the case file.
If the file is received, the grace period decision is issued, and the accused refrains from surrendering himself within twenty-four hours before the trial despite being notified, the court decides to try him in absentia (par défaut) and considers him a fugitive from justice (en état de contumace). This results in the execution of the arrest warrant, stripping him of his civil rights (la dégradation civique), preventing him from disposing of his funds or filing any lawsuit not related to his personal status, and appointing a curator (un curateur) to manage his funds, which he is not entitled to dispose of except with special permission from the criminal court, along with notifying the real estate registry to place a notation ex officio on his real estate properties. Finally, the flight of one of the accused may not disrupt the progress of the case or delay the trial of the rest of the accused.
Official legal articles
repeal · 1983-11-10: Open the official text
Think deeper
How does the court's obligation to use a lawyer in the preliminary interrogation and trial phases integrate with the specific exception of the accused's insistence on refusal, and what is its connection to his right to the last word before closing the trial?
Flashcards
What does the president or the delegated counselor do if the accused does not appoint a lawyer during the preliminary interrogation?
He requests the head of the bar association to appoint a lawyer to defend him within twenty-four hours from the time of his notification, or he undertakes appointing one himself.
Who are the persons obligated to sign the preliminary interrogation record?
The president or the delegated counselor, the accused, and the clerk.
What is the time limit given to the released accused to surrender himself before the start of the criminal court session?
Within twenty-four hours before the start of the trial, and the time limit runs from the date he is notified of the grace period decision.
What is the legal consequence of the accused surrendering himself within the twenty-four-hour time limit?
He is tried in his presence and the arrest warrant against him is executed.
How does the accused appear in the session prepared for his trial, and what is the exception to trying him in the presence of a lawyer?
He appears without restraints under the guard of the security forces, and his trial shall not take place without a lawyer unless he personally insists on refusing the assignment of any lawyer to defend him.
What is the legal order for pleadings and hearing the parties before the court decides to close the trial?
The personal claimant first, then the representative of the public prosecution, then the defense counsel, and finally the court listens to the last words of the accused before deciding to close the trial (Article 270).
What are the restrictions imposed on the funds of the accused who is a fugitive from justice and on the curator appointed to manage them?
The accused is prevented from disposing of his funds and a notation is placed on his real estate properties in the real estate registry, and the curator is not entitled to dispose of the convicted person's funds except with special permission from the criminal court.
What is the effect of the flight of one of the accused on the trial procedures of his co-defendants present in the same case?
The decision of one of the accused may not be a reason to postpone the trial or to delay the consideration of the case against the rest of the accused.
Practice questions
Who legally undertakes signing the preliminary interrogation record?
The law requires that the preliminary interrogation record be signed by the president or the delegated counselor, the accused, and the clerk (Article 238).
What is the legal effect if the released accused is notified of the grace period decision and surrenders himself within the time limit?
If the accused surrenders himself within the specified time limit, he is tried in his presence and the arrest warrant against him is executed (Article 242).
In which case does the law permit conducting the trial of the accused in a felony without the presence of a defense lawyer?
The general rule is that the trial shall not take place in the absence of the accused's lawyer. This excludes the case of the accused's insistence on refusing the assignment of any lawyer, where his trial then takes place without a lawyer (Article 251).
Who is the person the court listens to at the conclusion of the discussions and pleadings directly and before it decides to close the trial?
The law requires that the court listen to the last words of the accused after the end of the defense counsel's pleading and before deciding to close the trial (Article 270).
What is the measure taken by the public prosecution regarding the real estate properties of the fugitive accused from justice?
The public prosecution notifies the court's decision to the real estate registry secretariat to place its notation ex officio on the in-kind folios of the accused's real estate properties (Article 283).
Does the curator appointed to manage the funds of the accused who is a fugitive from justice have the authority to dispose of his funds?
The curator is not entitled to dispose of the convicted person's funds except with special permission from the criminal court (Article 283).
What is the legal ruling if one of the accused flees in a multi-party criminal case?
The decision of one of the accused may not be a reason to postpone the trial or to delay the consideration of the case against the rest of the accused (Article 293).
Case problems
The accused (Fouad) was referred for a felony before the criminal court and was released. The president of the court issued a grace period decision, duly notifying him to surrender himself within 24 hours before the scheduled start of the trial. Fouad failed to surrender himself and disappeared from sight. The court decided to try him in absentia and consider him a fugitive from justice, and issued an order to execute the arrest warrant against him, strip him of his civil rights, and appoint a curator over his funds. The appointed curator, a week after his appointment, sold a plot of land registered in Fouad's name to a third party without reverting to the court, relying on the decision appointing him as a curator to manage the funds. The public prosecution also submitted a request to register a notation on his real estate properties.
Model answer
First, regarding Fouad's trial in absentia: The court's action is correct and complies with the law. If the accused is notified of the grace period decision and refrains from surrendering himself within twenty-four hours before the start of the trial, the court decides to try him in absentia, considers him a fugitive from justice, and issues an order to execute the arrest warrant (Articles 242 and 283).
Second, the measures issued against him: The court's ruling to strip him of his civil rights, prevent him from disposing of his funds and from filing any lawsuit not related to his personal status, appoint a curator over his funds, and notify the real estate registry to place the notation ex officio is a precise application of the law (Article 283).
Third, the curator's disposal by selling the real estate: The curator's action is void and contrary to the explicit text of the law. The curator is not entitled to dispose of the convicted person's funds except with special permission from the criminal court (Article 283). Since he acted without obtaining this permission, the sale falls outside his legal powers.
Self-grading rubric
The accused (Kamal) appeared before the criminal court in the trial session handcuffed. When the president began questioning him, he noticed the absence of a lawyer with him. The president asked him if he had appointed a lawyer, and he answered in the negative. The president then offered to request the head of the bar association to assign a lawyer or to appoint a lawyer for him himself. Kamal angrily refused and firmly insisted on refusing the assignment of any lawyer, confirming his desire to defend himself personally. The court decided to remove his restraints and proceeded with the session in the absence of any lawyer. After hearing the witnesses and finishing the discussion of the evidence, the court listened to the demands of the personal claimant, followed by the pleading of the public prosecution and its demands. Immediately upon the conclusion of the public prosecution, the president announced the closure of the trial and the panel decided to adjourn the session to issue the judgment.
Model answer
First, the appearance of the accused in restraints: The initial procedure violated the law which mandates that the accused appear before the court without restraints under the guard of the security forces to prevent his escape (Article 251). Therefore, the decision to remove his restraints during the session was a necessary correction of this formal situation.
Second, trying the accused without a lawyer: The procedure perfectly complies with the law. Although the established general rule is that the trial shall not take place in the absence of the accused's lawyer, there is an explicit exception stipulating that if the accused insists on refusing the assignment of any lawyer to defend him, his trial shall take place in this case without a lawyer (Article 251).
Third, the decision to close the trial: The procedure is contrary to the law and defective. The law imposes a mandatory order for pleadings such that the personal claimant presents his demands, then the representative of the public prosecution pleads, then the defense counsel pleads. After that, the court inevitably listens to the last words of the accused before deciding to close the trial (Article 270). Skipping listening to the last words of the accused represents an explicit violation of the law.
Self-grading rubric
In a criminal case involving two accused persons, (Ziad) and (Tariq), Tariq appeared in person before the court after surrendering himself on time, while Ziad was notified of the grace period decision and refrained from surrendering himself, and the court decided to try him in absentia as a fugitive from justice. At the beginning of the session, Tariq's counsel submitted a formal request to postpone the trial and delay the consideration of the case under the pretext of the necessity to try the accused together to prevent conflicting procedures. Upon reverting to the case file to scrutinize Tariq's preliminary interrogation procedures, it became apparent that the preliminary interrogation record was signed only by the delegated counselor and the accused, without the signature of the clerk.
Model answer
First, the request to postpone the trial due to the flight of the other accused: The request is inevitably rejected by the text of the law. The decision of one of the accused may not be a reason to postpone the trial or to delay the consideration of the case against the rest of the accused (Article 293). Accordingly, Tariq's trial must be continued and may not be delayed due to Ziad's flight.
Second, the validity of the signature on the preliminary interrogation record: The record is formally defective and does not fulfill the legal procedures. The law requires drawing up a preliminary interrogation record signed by the president or the delegated counselor, the accused, and the clerk together (Article 238). Since the clerk's signature was omitted, the record lacks one of the three mandatory signatures imposed by the text.