Objection to In Absentia Judgments in Misdemeanors
Explanation
These texts clarify the procedural rules governing criminal trials before the single judge (le juge unique), noting that this presentation is merely an explanatory commentary and not the text of the law itself which appears separately in its literal text. The single judge examines the case in person, meaning he is restricted only to trying the defendants, and does not have the authority to try others unless a subsequent claim is brought against them before the dispute is resolved. If he has evidence indicating the involvement of other persons, the law requires him to prepare an immediate report and refer it to the public prosecutor (le procureur général).
Regarding the subject matter of the dispute, the judge examines the facts specified in the public prosecution's claim, the direct complaint (la plainte directe), or the indictment (l'ordonnance de renvoi). He has full authority to examine the facts and circumstances that accompanied the crime and affected its characterization, without being bound by the legal description (la qualification juridique) given to the act in the claim documents. If the judge concludes that the act constitutes a felony (un crime), he must declare his lack of jurisdiction (l'incompétence) and refer the case file to the public prosecution.
The law sets out different procedures when the single judge declares his lack of jurisdiction depending on the original course of the case. If the case was brought directly before him by a direct complaint, the judge has the authority to issue an arrest warrant (le mandat d'arrêt) against the defendant upon referral to the public prosecution. However, if the case was referred to him based on a claim by the public prosecution or based on an indictment, he is prohibited from issuing an arrest warrant, and is strictly limited to declaring his lack of jurisdiction and referring the papers to the public prosecution.
Trial procedures are subject to a fundamental principle of being public and oral under penalty of nullity (la nullité). As an exception to this principle, the single judge may decide to hold the hearing in secret (à huis clos) if the preservation of public order (l'ordre public) or public morals (les bonnes mœurs) so requires. He may also, in all cases, make a decision to prohibit minors (les mineurs) from attending the hearings.
The trial begins with the court clerk reading the claim, the indictment, or summarizing the direct complaint and the evidence. Then, the judge listens to the statements of the personal plaintiff (la partie civile) or his representative, and interrogates the defendant in the presence of his lawyer if he has appointed one. If the defendant chooses to remain silent, it is prohibited to coerce him to speak or to take his silence as a presumption (une présomption) of guilt. According to the legal amendment regarding the organization of the judicial notification, the notification is only organized upon the request of the concerned parties, is limited to the operative part of the judgment (le dispositif) and its reasoning, is signed by the judge and the clerk, and must be delivered within fifteen days from the date the request is made.
Official legal articles
replace · 1923-05-04: Open the official text
Think deeper
How does the single judge's lack of restriction to the legal description given to the act relate to his mandatory obligation to declare his lack of jurisdiction and refer the case upon a change in description?
Flashcards
What procedure does the law impose on the single judge if evidence appears against persons not charged in the case?
He must prepare a report on the matter and refer it to the public prosecutor without delay, and he may not try them unless a subsequent claim is brought against them before the case is resolved.
Is the single judge bound by the legal description specified in the claim document or the indictment?
He is not bound by the legal description given to the act, and he may examine the circumstances and facts accompanying the crime that affect its description.
What does the single judge decide if he finds that the act referred to him constitutes a felony?
He declares his lack of jurisdiction to hear the case and refers its file to the public prosecution.
When does the single judge have the right to issue an arrest warrant upon declaring his lack of jurisdiction because the act is a felony?
He has the right to do so if the case was brought directly before him by a direct complaint. However, if it was referred by a public prosecution claim or by an indictment, he is limited to declaring his lack of jurisdiction and referring it.
What is the penalty for violating the principle of a public and oral trial before the single judge?
Nullity of the trial, unless the judge decides to conduct it in secret for the sake of preserving public order or public morals.
What is the category of people that the judge may prohibit from attending trial hearings in all cases?
Minors.
What is the legal effect resulting from the defendant's refusal to answer and his commitment to silence during the trial?
He may not be coerced to speak, and the judge is prohibited from taking his silence as a presumption of his guilt.
What are the conditions and controls for organizing the notification of the judgment issued by the single criminal judge?
The notification is only organized upon the request of the concerned parties and is limited to the operative part with its reasoning (Article 180). It is signed by the president and the clerk and delivered within fifteen days from the request date.
Practice questions
During a single judge's examination of a misdemeanor case, evidence appeared convicting a person who had not been previously charged. What is the correct legal procedure?
The judge examines the case personally for the defendants and does not deal with others except by a subsequent claim (Article 175). His duty when evidence is available against others is limited to preparing a report and referring it to the public prosecutor without delay.
What is the decision that the single judge must take if it becomes clear to him that the claimed act is legally described as a felony?
If the judge considers that the claimed offense constitutes a felony, he declares his lack of jurisdiction to hear the case (Article 176). The rules require referring the file to the public prosecution in this case (Article 177).
A case was referred to the single judge based on a claim by the public prosecution, and it became clear to him that the act constitutes a felony. What is the extent of his right to arrest the defendant?
The single judge does not issue an arrest warrant unless the case was brought directly before him (Article 177). However, if it was referred by a public prosecution claim or by an indictment, he is limited to declaring his lack of jurisdiction and referring it.
What is the exclusive legal condition for the permissibility of conducting the trial in secret before the single judge?
The trial shall be public and oral under penalty of nullity (Article 178). It may not be made secret unless the judge decides so for the sake of preserving public order or public morals.
Who is the category that may be prohibited from attending trial hearings in all cases?
Minors may be prohibited from attending the trial in all cases (Article 178).
If the defendant refuses to answer and remains silent during his interrogation, what is the correct legal course?
If the defendant remains silent, neither the judge nor the plaintiff has the right to coerce him to speak (Article 180). The judge may not take his silence as a presumption of his guilt.
When is the notification of the judgment issued by the single judge organized and what is its delivery period?
The notification is only organized upon the request of the concerned parties and includes only the operative part and its reasoning (Article 180). It is delivered within fifteen days from the date the request is made.
Case problems
A person filed a direct complaint before the single criminal judge against (Ziad) for the crime of ordinary theft, and claimed personally against him. During the hearings and the hearing of the facts, it became clear to the judge that the crime was committed at night by breaking and entering and by two armed persons, which raises its legal description to the felony of aggravated theft. It also became clear to the judge through the facts that there was another accomplice named (Sami) whom the complainant did not mention and who was not included in the claim. The single judge decided to immediately include (Sami) in the case as a second defendant, declared his lack of jurisdiction to hear the case because the act is a felony, issued an arrest warrant against (Ziad), and decided to refer the case file to the public prosecution.
Model answer
First, the judge's decision to include Sami and try him violates the law. The single judge is restricted to examining the case personally for the defendants (Article 175). He does not have the authority to deal with others without a subsequent claim preceding the resolution. He should have limited himself to preparing a report on the existing evidence against Sami and referring it to the public prosecutor without delay.
Second, the judge's action of examining the facts, amending the description, and declaring a lack of jurisdiction is legally correct. The judge is not bound by the description given to the act in the direct complaint (Article 176). He may examine the accompanying circumstances and facts that affect the characterization of the act. When he considered that the offense constitutes a felony, he was obliged to declare his lack of jurisdiction.
Third, the judge's decision to issue an arrest warrant against Ziad and refer the file to the public prosecution is correct. If the judge declares his lack of jurisdiction because the act is a felony, he refers the file to the public prosecution (Article 177). He may issue an arrest warrant against the defendant if the case was brought directly before him by a direct complaint.
Self-grading rubric
A criminal case against the defendant (Fadi) was referred to the single judge by a claim from the public prosecution for the crime of unintentional harm. The judge decided to make the hearing secret based on his personal desire without justifying it by public order or public morals. During the hearing, the judge and the plaintiff directed questions to (Fadi), but he refused to answer and preferred to remain silent. The judge noted in the hearing minutes that the defendant's silence constitutes evidence and a presumption of his commission of the act, and issued a judgment convicting him. Immediately following the issuance of the judgment, the court clerk, on his own initiative and without any request from the litigants, proceeded to organize the notification of the judgment and deliver it containing the full facts of the trial, witness discussions, and parties' pleadings.
Model answer
First, the trial hearing is tainted with nullity. The mandatory principle is that the trial must be conducted publicly and orally under penalty of nullity (Article 178). It is not permissible to conduct it in secret except by a decision based on the preservation of public order or public morals. This condition was not met in the judge's decision.
Second, the judge's action regarding the defendant's silence constitutes an explicit violation of the law. Coercing the defendant to answer if he remains silent is prohibited (Article 180). The judge is prohibited from taking this silence as a presumption of his guilt.
Third, the organization of the judgment notification by the clerk violates the rules. The judicial notification may only be organized based on an explicit request submitted by the concerned parties (Article 180). Its content must be strictly limited to the operative part of the judgment with its reasoning and the signature of the president and the clerk. The notification is delivered within fifteen days of the request, and it is not permissible to insert the rest of the case's discussions into it.
Self-grading rubric
A case file was received by the single criminal judge based on an indictment issued by the investigative judge attributing to the defendant (Nadim) the misdemeanor of fraud and swindling. When the judge began examining the case papers, he noticed that the facts stated in the indictment included criminal forgery, which changes the description to a felony. The judge issued a judgment in which he declared his lack of jurisdiction to hear the case, issued an arrest warrant against the defendant (Nadim), and referred the case file to the public prosecution.
Model answer
First, the single judge has the authority not to be bound by the legal description given to the act in the indictment (Article 176). He has the right to examine the accompanying circumstances and facts. He must declare his lack of jurisdiction and refer the case to the public prosecution as soon as it becomes clear to him that the act constitutes a felony.
Second, the single judge violated the rules in the part related to issuing the arrest warrant. The exceptional authority given to the single judge to issue an arrest warrant upon declaring his lack of jurisdiction is conditional (Article 177). It is strictly required that the case was brought directly before him by a direct complaint.
Third, the current case was received by the single judge based on an indictment. The law obliges him to be limited only to declaring his lack of jurisdiction and referring the case to the public prosecution (Article 177). The judge does not legally have the authority to issue an arrest warrant against the defendant in this case.