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Comparative Law Spring 2002 Professor Susanna Fischer

Comparative Law Spring 2002 Professor Susanna Fischer. CLASS 31 FRENCH CIVIL PROCEDURE April 3, 2002. Wrap-Up: French Civil Procedure. DEC. 2000: FRENCH LAWYERS STRIKE OVER LEGAL AID. French Criminal Procedure. Is French criminal procedure inquisitorial or adversarial?.

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Comparative Law Spring 2002 Professor Susanna Fischer

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  1. Comparative Law Spring 2002Professor Susanna Fischer CLASS 31 FRENCH CIVIL PROCEDURE April 3, 2002

  2. Wrap-Up: French Civil Procedure

  3. DEC. 2000: FRENCH LAWYERS STRIKE OVER LEGAL AID

  4. French Criminal Procedure • Is French criminal procedure inquisitorial or adversarial?

  5. French Criminal Procedure: Inquisitorial or Adversarial? • Elements of both

  6. 3 Stages of French Criminal Procedure • 1. Police investigation/prosecution (mainly inquisitorial) • 2. Judicial investigation (mainly inquisitorial) • 3. Trial (both adversarial and inquisitorial)

  7. Adversarial vs. Inquisitorial • Are supporters of adversarial systems more or less trusting of governmental power?

  8. Adversarial vs. Inquisitorial • Are supporters of adversarial systems more or less trusting of governmental power? In general, less trusting of governmental power, and afraid that it leads to corruption and shoddy work.

  9. Sources of French Criminal Procedure • Code of Criminal Procedure 1958 • European Convention on Human Rights (Art. 55 of the 1958 Constitution – legislation must conform with international treaties such as the right to a fair trial starting with the date a person is charged with a criminal offense) • Legislation, such as that adopted in response to the Truche report • Which is treated as the principal source by the Cour de Cassation?

  10. Truche Report of July 1997 • The Truche Commission was established by President Chirac to suggest reforms to increase public confidence in French criminal procedure • The Truche report was issued in 1997 • Suggested various legislative reforms to increase openness and transparency, reduce investigating judge’s power and strengthen independence of public prosecutor

  11. Loss of Public Confidence • Why did the French public lack confidence in the French criminal procedure system?

  12. A Hallmark of French Criminal Procedure: Secrecy • The early stages of the criminal procedure (investigative stage) are conducted in secret • Who is bound by the obligation of secrecy? • Note that trial hearing generally takes place in public, though the Cour de Cassation refused to annul a decision of Cour d’ Appel of Grenoble that was not open to the public

  13. Secrecy and Art. 11 of Code of Criminal Procedure • Any person who participates in the procedure during police and judicial investigation has obligation of secrecy and is subject to civil criminal and disciplinary sanctions for violating it. • That is, the public prosecutor, the investigating judge, police, experts, interpreters, court clerks and defense lawyers • NOT ordinary witnesses and civil party and does not apply to public facts (like arrest, police custody) How about journalists?

  14. Truche Report and Media Restrictions • What restrictions on media reporting of criminal proceedings did the Truche Report recommend?

  15. Truche Report and Media Restrictions • What restrictions on media reporting of criminal proceedings did the Truche Report recommend? • Prohibitions on naming people charged or held in custody • Prohibitions on pictures of suspects in handcuffs • Prohibition on opinion polls on guilt or innocence • Recommendation for media watchdog

  16. Police Investigation • What are the 2 kinds of police in France?

  17. Police Investigation • What are the 2 kinds of police in France? • 1. Crime prevention police (la police administrative) – national police (urban areas – Home Office) and gendarmes (suburbes, rural areas – Ministry of Defense) • 2. Criminal investigation police (la police judiciare)

  18. Police Investigations • What should the police do if they are informed of the commission of an offense?

  19. 2 kinds of investigations • 1. Expedited investigation (suspect caught red handed or shortly after offense committed; or suspect found in possession of incriminating objects shortly after commission of offense; or offense committed in private home) • 2. Ordinary investigation

  20. What is the difference between the expedited investigation and ordinary investigations?

  21. Advantages of Expedited Investigations • In expedited investigations, police have increased powers of search and seizure, hearing witnesses and placing suspects in custody • Special restrictions on searching certain professionals or media organs • In ordinary investigations, police can’t search or seize property without person’s consent, and do not have the power of arrest. Only powers are to place suspects in police custody or to order witnesses to come to police station to be questioned

  22. Power of Arrest in an Expedited Search • What is the standard of suspicion required for making an arrest in an expedited search?

  23. Power of Arrest in an Expedited Search • What is the standard of suspicion required for making an arrest in an expedited search? If serious incriminating evidence justifies their being charged

  24. Regulation of Police Custody • Are there restrictions on placing people in police custody under current French law? • Are these restrictions adequate?

  25. Restrictions on Police Custody • Prior to 1958 Code no such restrictions • Police custody may be used only for suspects not witnesses • Suspects may only be interrogated by police for 24 hours unless prosecutor extends to 48 hours. Very exceptionally (if suspected of terrorism or drugs, 98 hours of detention is posible) • No fixed time limits on police questionoing

  26. 1999 European Court of Human Rights Condemnation of France for torture • Selmouni case – Ahmed Selmouni (joint Moroccan/Dutch national) awarded 500,000 FF in damages for torture and brutality suffered while in French police detention • ECHR also found that France had failed to try Selmouni within a reasonable time.

  27. Amnesty International Concerns • Amnesty International has reported concerns about French police brutality, particularly toward those of non-European origin and asylum seekers as well as impunity granted by courts to brutal police officers (See Amnesty International 2001 Report (Jan – Dec 2000 at: http://web.amnesty.org/web/ar2001.nsf/webeurcountries/FRANCE?OpenDocument) • Many have concerns about excessive detention before trial in France

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