Preliminary Investigation and Investigating Judge Orders
Explanation
This explanation aims to clarify the procedural rules derived exclusively from the specified legal texts, and it is not a substitute for the legislative materials themselves. The preliminary investigation phase begins with a fundamental restriction, which is the secrecy of the investigation (le secret de l'instruction), as the investigation remains secret until the case is referred to the trial court, except for the indictment (l'ordonnance de renvoi) (Article 53). A penalty of imprisonment and a fine is imposed on anyone who discloses this secrecy before the single judge. The law also allows any person harmed by a felony or misdemeanor to resort directly to the first investigative judge with a complaint in which they assume the capacity of a civil party (la constitution de partie civile), paying the advance on expenses. This automatically initiates the public prosecution. The complaint turns into a mere notification referred to the public prosecutor if the condition of assuming the capacity of a civil party or the condition of paying the advance is not met, unless exempted from it (Article 68).
Upon the first appearance of the defendant (l'inculpé) before the investigative judge, the procedures require informing them of the offense attributed to them, by summarizing the facts and making them aware of the evidence and suspicions to refute them. The judge is not obliged to give them the legal description of the facts. The law also requires warning the defendant of their right to the assistance of a single lawyer during the interrogation. The legislator has established a strict penalty for the omission of this information or warning, which is the nullity of the interrogation as a piece of evidence in the case (Article 76).
At the conclusion of the investigation procedures, the paths of the file diverge depending on the nature of the offense and the issued decision. If the case is associated with an indictment for a misdemeanor or contravention, the public prosecutor is obliged to send the file to the single penal judge within three days, accompanied by an itemized list prepared by the investigation department (Article 124). However, if the investigative judge considers that the act constitutes a felony, they issue a decision presenting the facts, evidence, and legal description, and refer the file to the public prosecution to deposit it with the indictment chamber (la chambre d'accusation) in its capacity as the accusing authority (Article 125). If the judge decides to exclude the felony description and adopt a misdemeanor description, the right to appeal this decision belongs solely to the public prosecutor, excluding the civil claimant.
A civil chamber at the court of appeal undertakes the tasks of the indictment chamber, and its powers include the accusing authority in felonies, the appellate authority for the decisions of the investigative judge, the exercise of the right of evocation, and ruling on rehabilitation requests (Article 128). The chamber objectively takes charge of the file submitted to it. Upon completion of the investigation, it issues either a decision of dismissal (le non-lieu) and release for reasons exclusively specified by the text, or a decision considering the act a misdemeanor or contravention and referring it to the single judge with release if the penalty does not exceed one year of imprisonment. It can also issue a decision accusing the defendant and referring them to the criminal court along with issuing an arrest warrant against them (Article 130).
Official legal articles
replace · 1930-02-07: Open the official text
Think deeper
How does the penalty of nullifying the interrogation as a piece of evidence, upon omitting to warn the defendant of their right to a lawyer, relate to the obligation of informing them of the suspicions and facts to refute them and defend themselves?
Flashcards
What is the sole exception to the principle of the secrecy of the preliminary investigation imposed by the law?
The indictment, as the investigation remains secret unless the case is referred to the trial court, except for what relates to this decision (Article 53).
What is the procedural effect of submitting a direct complaint while assuming the capacity of a civil party and paying the specified advance?
The public prosecution is automatically initiated (Article 68).
What is the legal characterization of a direct complaint if the complainant does not assume the capacity of a civil party or does not pay the advance?
It is considered a mere notification and is referred to the public prosecutor to take a position on initiating the public prosecution (Article 68).
What is the legal penalty resulting from the investigative judge's omission to warn the defendant of their right to the assistance of a lawyer during the first interrogation?
The nullity of the interrogation as a piece of evidence (Article 76).
What is the time limit granted to the public prosecutor to send the case file associated with an indictment for a misdemeanor to the single judge?
Within three days of its deposit with them, accompanied by an itemized list prepared by the investigation department (Article 124).
Which court undertakes the functions of the indictment chamber, and what are its four powers specified by the law?
A civil chamber at the court of appeal, and its powers are: the accusing authority in a felony, the appellate authority for the decisions of the investigative judge, the right of evocation, and ruling on rehabilitation requests (Article 128).
Practice questions
What is the penalty prescribed by law for anyone who discloses the secrecy of the investigation?
The person who discloses the secrecy of the investigation is prosecuted before the single judge and punished with imprisonment from one month to one year and a fine from one hundred thousand to one million Liras, or one of these two penalties (Article 53).
When is the complainant mandatorily and by operation of law exempted from paying the advance on judicial fees and expenses in a direct complaint?
The complainant is exempted from paying the advance if the alleged act is of a felony nature (Article 68).
What is the obligation imposed on the investigative judge regarding the legal description upon the first appearance of the defendant?
The investigative judge is not obliged to give the defendant the legal description of the facts (Article 76).
When does the indictment chamber rule to release the defendant upon considering the act a misdemeanor?
The chamber issues a decision referring the defendant to the single penal judge and releases them if it considers the act a contravention or a misdemeanor that does not require a penalty of imprisonment of more than one year (Article 130).
What is the procedure that the indictment chamber mandatorily rules against the accused upon issuing a decision accusing them of a felony?
The chamber rules in its decision to refer the accused to the criminal court to be tried for what they are accused of, and issues an arrest warrant against them (Article 130).
Case problems
Samir submitted a direct complaint before the first investigative judge in Baabda, assuming the capacity of a civil party against Kamal, and attributed to him the commission of a misdemeanor of fraud and deceit, but he did not pay the expedited advance and did not request an exemption from it. Despite this, the investigative judge summoned Kamal and interrogated him in a first session, where he summarized the facts and suspicions to him and asked him to refute them, and Kamal confessed to the facts during the session. However, the judge never warned Kamal of his right to the assistance of a lawyer during the interrogation. Kamal's lawyer later pleaded the nullity of the interrogation and considering it as if it had not been, and also disputed the capacity of initiating the public prosecution.
Model answer
First: Regarding the initiation of the public prosecution and Samir's complaint, it is required for the automatic initiation of the public prosecution that the complainant assumes the capacity of a civil party and pays the judicial advance they are tasked with, unless exempted from it by a reasoned decision due to the difficulty of their financial situation (Article 68). Since Samir did not pay the advance and was not exempted from it, the complaint does not automatically initiate the public prosecution. It is rather considered a mere notification and is referred to the public prosecutor to take their position on initiating the prosecution.
Second: Regarding Kamal's interrogation and confession, the investigative judge is obliged, upon the first appearance of the defendant, to warn them of their rights, especially their right to the assistance of a single lawyer during the interrogation (Article 76).
Third: The omission of this warning results in an explicit legal penalty, which is the nullity of the interrogation as a piece of evidence (Article 76). Accordingly, the interrogation report and Kamal's confession contained therein are nullified as a piece of evidence in the case.