Trial Proceedings Before the Single Criminal Judge
Explanation
This explanation serves as an illustrative guide to the trial before the single penal judge (le juge unique pénal), and is not the legal text itself as set out in the literal articles. The single judge has jurisdiction to hear cases of misdemeanors (les délits) and contraventions (les contraventions), except for what a special text has excluded from his jurisdiction. The dispute before him is characterized by the fact that the public prosecution (le ministère public) is not represented before him in the trial hearings.
The action is transferred to the single judge and he takes cognizance of it based on the indictment order (l'ordonnance de renvoi) issued by the investigating judge or the indictment chamber, where the public prosecution refers the case file to him within three days of its deposit with it, unless it has appealed the decision of the investigating judge.
The validity of the notification of the litigants is required for the trial to be held, and the procedures require that the notification be made at least three days before the date of the hearing, excluding the day and hour of the notification from the calculation and extending the time limit to the first working day if it ends on a holiday. In the event of the invalidity of the notification and the failure of the defendant to attend, the invalidity is declared and the notification is repeated. However, if the notified person attends, he may request the postponement of the hearing before raising any plea (une exception) or defense, and if he does not request the postponement, his notification is deemed valid, and the notification officer is fined the expenses of the transaction and compensation when his responsibility for the invalidity is proven.
The form of the defendant's attendance is determined by the severity of the penalty prescribed for the offense. If the maximum penalty does not exceed one year of imprisonment, he may attend in person or send a lawyer to represent him, and the trial is considered adversarial (contradictoire) against him, and if he fails to attend and be represented by a lawyer, he is tried in absentia (par défaut). The judge may, when necessary, decide to interrogate him personally and notify him of the date through his representative, and if he is absent, the judge may consider his absence a presumption (une présomption) of the truth of what is attributed to him. However, if the penalty for the offense exceeds one year of imprisonment and he does not attend in person despite being notified, he is inevitably tried in absentia.
The civil part (le volet civil) of the judgment in absentia becomes final in accordance with the notification procedures prescribed in the Code of Civil Procedure, and the injured party obtains an executable copy. If the convicted person is later acquitted or the prosecutions against him are annulled as a result of the challenge, he may compel the executing party to return what was received and to pay damages. When exercising the right of objection (l'opposition), the objector is exempted from the expenses of the judgment in absentia if he is right, but if it is ruled to dismiss his objection in form, he may be ordered to pay a fine ranging between five hundred thousand and one million liras.
Official legal articles
amend · 1993-05-27: Open the official text
Think deeper
How does the criterion of the severity of the penalty attributed to the defendant by exceeding one year of imprisonment or not exceeding it integrate with the procedural rules prescribed for notification to protect the right of defense and the proper administration of justice?
Flashcards
What is the minimum time limit that must separate the notification and the date of appearance before the judicial authority ordering it?
At least three days, unless there is a contrary provision in the law.
Does the day of notification and the hour of its occurrence enter into the calculation of the legal notification time limit?
The hour and day of its occurrence do not enter into the calculation of the notification time limit.
Is the public prosecution represented before the single penal judge?
The public prosecution is not represented before the single penal judge in cases of misdemeanors and contraventions (Article 150).
What is the specified time limit for the public prosecution to refer the case file to the single judge after the indictment order is deposited with it?
Within three days of its deposit with it, unless it appeals the indictment order.
When may the defendant send a lawyer to represent him instead of attending in person, and his trial is considered adversarial?
If the maximum penalty for the offense attributed to him does not exceed one year of imprisonment.
What is the effect that the judge may deduce if the defendant is absent from the scheduled interrogation hearing despite being notified of its date through his representative?
The judge may consider his absence a presumption of the truth of what is attributed to him.
What is the amount of the fine that the court may impose on the objector when deciding to dismiss the objection in form?
A fine ranging between five hundred thousand and one million liras.
Practice questions
If the legally specified notification time limit ends on an official holiday or outside official working hours, until when is the time limit extended?
The law specifies that if the notification time limit ends on an official holiday or outside official working hours, it is extended to the first working day that follows it (Article 149).
If the notification time limit is not observed but the person to be notified attends the hearing, what is the required condition to postpone the hearing?
The law requires that if the person to be notified attends and requests the postponement of the hearing before raising any plea or defense in the action, the judge decides to postpone it, otherwise his notification is deemed valid (Article 149).
What is the basis on which the single penal judge relies to take cognizance of the penal action?
The single judge takes cognizance of the action based on the indictment order issued by the investigating judge or by the indictment chamber (Article 158).
If the penalty for the offense attributed to the defendant exceeds one year of imprisonment and he does not attend in person despite being notified of the hearing date, how is he tried?
The law decides that if the penalty for the offense exceeds one year of imprisonment and the defendant does not attend in person despite being notified of the hearing date, he is tried in absentia (Article 165).
What is entailed against the notification officer if it is decided to declare the invalidity of the notification for a reason related to his act?
The law requires that if the judicial authority declares the invalidity of the notification for a reason related to the act of the notification officer, it fines him an amount equivalent to the notification expenses and compels him to pay damages if necessary (Article 149).
What is the fate of the expenses of the trial in absentia if the defendant exercises the objection and is right in it?
The defendant is exempted from the expenses of the trial in absentia if he is right in his objection, otherwise he is ordered to pay them (Article 174).
Case problems
A case file for the misdemeanor of unintentional harm, punishable by a maximum of eight months of imprisonment, was referred to the single penal judge by virtue of an indictment order. The defendant was duly notified of the hearing, and on the scheduled date, a lawyer attended on behalf of the defendant, and the defendant did not attend in person. The representative of the prosecuting party requested that the defendant be tried in absentia on the pretext that his personal appearance was mandatory, while the defendant's representative insisted that the trial is considered adversarial in his presence. After that, the judge saw the necessity of interrogating the defendant personally in the case. What is the legal description of the defendant's attendance through his representative, and what are the procedures and effects entailed if the judge decides that he must be interrogated and he fails to attend?
Model answer
The defendant has the right to attend in person or to send a lawyer on his behalf if the maximum penalty for the offense does not exceed one year of imprisonment, and the trial is considered adversarial against him (Article 165).
Since the penalty for the offense does not exceed eight months, the attendance of the lawyer is sufficient and the trial is considered adversarial against him, and the request of the prosecuting party to try him in absentia must be dismissed.
If the judge finds it necessary for the defendant to appear in person for his interrogation, he notifies him through his representative of the date of the hearing scheduled for his interrogation, including the day and hour (Article 165).
If the defendant is absent from this hearing scheduled for his interrogation after being duly notified, the judge may consider his absence a presumption of the truth of what is attributed to him (Article 165).
Self-grading rubric
A judgment in absentia was issued against Walid by the single penal judge, ordering his imprisonment and compelling him to pay personal compensation to the plaintiff. The civil part of the judgment was notified in accordance with the notification provisions in the Code of Civil Procedure, and the plaintiff obtained an executable copy, executed it, and received the compensation amount in full. After the execution, Walid submitted a challenge to the judgment in absentia. As a result of the trial after the challenge, the court issued a judgment declaring Walid's acquittal of the offense attributed to him. What are the financial rights granted by the law to Walid against the executing party, and what is the fate of the expenses of the trial in absentia if his challenge was an objection and it turned out that he was right in it?
Model answer
The civil part of the judgment in absentia becomes final after the completion of its notification in accordance with the provisions of the Code of Civil Procedure, and the party ruled in favor of obtains an executable copy that is executed civilly (Article 172).
If the convicted person is declared acquitted as a result of the challenge to the judgment in absentia after the execution of the civil part, he has the right to request compelling the executing party to return what he received (Article 172).
The person convicted and then acquitted also has the right to compel the executing party to pay damages (Article 172).
If the challenge is an objection and it is proven that the objector is right in his objection, he is inevitably exempted from the expenses of the trial in absentia (Article 174).
Self-grading rubric
A notification paper was delivered to the defendant Nadim on Monday for a hearing scheduled on Wednesday before the single penal judge, and Nadim failed to attend. It became clear to the judge that the notification officer did not observe the legal three-day time limit for notification after excluding the day and hour of the notification. Explain the legal position that the judge must take regarding this notification, and what are the effects imposed on the notification officer due to this shortcoming?
Model answer
The notification must be made at least three days before the date of appearance, and the day and hour of the notification's occurrence do not enter into the calculation of the time limit (Article 149).
Since the notification occurred on Monday for a Wednesday hearing, the three-day time limit was not observed, and with Nadim's absence, the invalidity of the notification must be declared and repeated again (Article 148).
Since the invalidity of the notification is due to a reason related to the act of the notification officer for not respecting the time limit, the judge decides to fine him an amount equivalent to the notification expenses (Article 149).
The judge compels the notification officer to pay damages to the injured party if necessary (Article 149).