There are six stages, reporting the offense, the preliminary police investigation, initiating prosecution of the accused, the judicial investigation, the trial, and enforcement of the judgment. In many cases, the investigating judge at their discretion may delegate the second investigation phase to the police as well.
Reporting an offense A complaint (
plainte) by a victim or a law enforcement official, or a denunciation (
dénonciation) by a third party is the initial step in launching a criminal investigation. The report of an offense (
infraction) is usually made to the police, but can also be made directly to the
public prosecutor's office (), which acts on reports from either the police or from the victim. Once a
criminal proceeding () has been initiated in the criminal courts, the victim may also pursue a civil action (
partie civile) for damages resulting from the criminal offense to obtain compensation for his or her loss. This is a specific type of procedure in which a criminal proceeding and a civil proceeding are combined, namely when a criminal prosecution also has a civil portion involving attached to it.
Police investigation Criminal procedure starts with the investigation phase. The purpose is to gather initial evidence before the prosecution begins. The investigation has two parts: the preliminary police investigation (
enquête préliminaire) and the in-depth investigation (
instruction) under the supervision of the court. These two phases take place in secret, in order to protect the defendant (
accusé), who is not yet guilty under the presumption of innocence, and to protect the judicial process. This implies some limitations on the freedom of the press, and is codified in article 11 of the CPP.. The secrecy only applies to those taking part in the investigation: police, lawyers, experts, clerks, and others. However the defendant, the victim (
victime), and other witnesses are not bound by secrecy, and may speak to anyone, including journalists. Leaks may hurt the search for justice, so the law tries to limit it by the notion of concealment (). The preliminary police investigation takes place under supervision of the public prosecutor's office (). The police charged with the investigation may be either of the two national police forces in France, the
National Police or the
Gendarmerie. In this phase, the police make inquiries in order to determine if a crime has been committed, and attempt to find a suspect. There are two national police forces, the
National Police, who act in urban areas, and the
gendarmes in suburban and rural areas who report to the Ministry of Defense. Police are barred from taking part in the commission of any offense, and thus entrapment is off the table, although there are exceptions for drug and customs offenses. There are two types of police investigations: ordinary, and expedited (
enquête de flagrance). The latter require certain special conditions to be met, and confer increased powers upon the police. Expedited and preliminary investigations share two features: they can take individuals into police custody for a period of 24 hours (
garde à vue), renewable once; or four days for terrorism and drugs, and they are obliged to issue reports (
procès-verbaux) to the public prosecutor, who makes the decision whether to carry on with the process based on
their own discretion. In both types of investigation, police have recourse to ''''.
Expedited An expedited investigation () is the most frequent type of police investigation, and can be carried out if suspects are caught red-handed (
flagrant délit), or in a private home when committing the crime, or in possession of incriminating evidence in the immediate aftermath of the crime. Police have increased powers in expedited investigations, including the power of search and seizure (
perquisition,
saisie) without the consent of the owner (with a few exceptions like diplomatic residences). Some locations require a search to be conducted by a judge, including doctor and attorney offices, offices of press and the media, and others. An expedited investigation can only be carried out for and for .
Preliminary When the conditions are not met for an expedited investigation, then preliminary investigation (; also "ordinary investigation") is carried out. In a preliminary investigation, police have only two coercive powers: to summon a witness to the police station for questioning, or to take a suspect into custody. Search and seizure require the consent of the person involved, and there is no power of arrest. There is an exception in terrorism cases which may permit search and seizure in preliminary investigations, and requires sign-off by a judge of a . The investigations at this stage are carried out by the officers of the
Judicial police (
police judiciaire;
OPJ), who operate under the supervision of the Public prosecutor's office.
Prosecution Once the police investigation is completed, the dossier is forwarded to the
public prosecutor's office. The public prosecutor is the magistrate in charge of the public prosecutor's office (). He receives complaints and reports, directs investigations, decides on prosecutions and ensures that the law is enforced. The victim may also apply directly to the public prosecutor's office. At this point, the prosecutor has considerable discretion on whether to prosecute the case. The prosecutor may decide that there is insufficient evidence to continue, or that justice is best served by not proceeding. A check on this discretion, is that the victim has the right to summon the accused directly to appear before the court (
citation directe}.
Prosecutorial discretion The principle of opportunity to prosecute () belongs to the
Public Prosecutor's Office. It is a power that is conferred by article 40-1 of the
French Code of Criminal Procedure. In France, the prosecutor has a lot of discretion on whether to take the case further, and the decision not to may be taken not only for weak cases, but even when the case is strong and the facts are certain, if the prosecutor judges that the common good is better served by not going further. The prosecutor may decide not to
prosecute a case and instead to . This principle of
prosecutorial discretion in France is more similar to what is seen in
common law countries, and is distinguished from what happens in Germany, Italy, and Spain, where the decision to continue or not is based on the particulars of the case and must go forward if the circumstances require it. A unique feature of French law is that the victim can also make the decision to move forward with the case.
Alternatives For two centuries, prosecutors in France faced one of two choices: prosecute, or drop the charges (
classement sans suite). Recent reforms have introduced alternatives which may allow the prosecutor to avoid a trial and still serve justice. Defendants in a criminal case cannot
plead guilty. A defendant may confess to a crime, but this becomes one more piece of evidence that can be used against them.
Plea bargaining as known in common law countries does not exist, but reduced penalties are possible at the prosecutor's discretion if the defendant confesses. For less serious offenses (
délits), the legislature introduced reforms to criminal procedure in the 1990s that permit the prosecutor to close a case if the perpetrator accepts an alternative procedure; this has become know informally as the "third way" (). The alternative disposition may be one of several possibilities, such as community service, payment of a fine to the national treasury, or enrolling in a treatment program. The goal is to serve justice, while avoiding the hearings required in a formal trial. Other West European countries have very similar arrangements. If the perpetrator refuses an alternative procedure, then the case goes to trial.
Judicial investigation In the second investigative phase, the in-depth judicial investigation (known in French as either
instruction, or
information judicaire) is carried out to see if there is enough evidence to warrant prosecution. The second part is normally carried out by the prosecutor (), or in some serious cases, by the investigating judge. An investigation carried out by the investigating judge (''
juge d'instruction''; JI). Although this was formerly the model of how French criminal investigations were carried out, since various legal reforms took effect, investigations carried out by a JI compared to a were less than 5% in 2003.
Investigating judge An
investigating judge initiates an investigation upon an order of the Public Prosecutor () or upon the request of a private citizen. The investigating judge may issue
letters rogatory (
commission rogatoire), order the seizure of necessary evidence, compel witnesses to appear and give evidence, and request
expert testimony at an investigative hearing, the judge may have witnesses confront each other or the accused.
Trial General characteristics During the trial phase, the procedure becomes less inquisitorial, and more adversarial, in the sense that it becomes more oral, the parties may be present in person, and witnesses may be examined, although not cross-examined in the common law sense. However, the inquisitorial underpinnings are still there, and the judiciary takes an active role in the proceedings, with the President of the Court for directing it. Trials are usually held in front of a panel of judges, but there are numerous exceptions, and in cases one judge may preside. The trial itself follows the
adversarial system, with some aspects of the
inquisitorial system mixed in, in accordance with the 1958 code of criminal procedure, and is public, oral, and hearing the parties involved. The hearing itself is oral, but focuses on the written investigation reports and evidence. In some cases, the written materials are sufficient to convict, in the absence of exculpatory evidence. In general, trials are public, but terrorist or rape trials may be held in private, and in some cases victims can request a private hearing. Public trials may not be recorded or filmed, but exceptions are made in cases of high importance such as that of
Maurice Papon, convicted in 1998 of crimes against humanity during the
Vichy regime of
World War II. The actual hearing may be divided into two parts, with the first part being a final investigation, including review of the preliminary investigation, augmented by hearing of witnesses and filling out any points not completed in the written report of the initial investigation. The second part is the closing argument phase, where the evidence is discussed and conclusions are made.
Order of trial The hearing starts with the cross-examination of the defendant. Evidence is presented (reading of statements, hearing of witnesses and expert testimony). Defendants may question prosecution witnesses (or have them questioned), and may demand the summoning and questioning of defense witnesses under the same conditions as prosecution witnesses. When there is a
partie civile associated with the case, that is, a claim by the victim for compensation for losses associated with the crime, then the civil case is heard next, and the amount of damages sought is specified. The closing arguments are last, with the prosecution going first and giving recommendations as to the desired sentence, followed by the defense attorney, and finally, the defendant has the option of making a closing statement. At the end of the session, the president of the trial notifies the parties of the date when the judgement of the court will be delivered.
Rights of the defendant The accused has a right to a lawyer, and certain parties are required to have one, including juveniles, and anyone with reduced mental capacity. The accused is presumed to be innocent, until there is a statement of guilt by the court, and the prosecution must prove the defendant is guilty, but the defendant must also prove the existence of a defense. There are a very few circumstances where defendants are presumed guilty and must prove innocence such as someone who lives with prostitutes, or with drug traffickers, is presumed to be living off the proceeds of illegal activity unless they can prove the contrary.
Absence of the defendant Normally, the defendant must be present at their trial. If they don't appear, the trial goes on without them, and historically, without their attorney being able to act on their behalf. However, in 2001, this was held to be contrary to the
European Convention on Human Rights, and since then, the attorney for the missing defendant must be heard by the court; this is known as . If they have not appeared before the conclusion of the trial, a warrant is issued for their arrest and they lose their right of appeal.
Pleading guilty Historically, under France's inquisitorial system, there was no provision for pleading guilty. Even if a suspect confessed, the full investigation and trial procedure was carried out anyway; the confession merely became another piece of evidence for judges to consider. With backlogs in court schedules causing delays, the Truche Commission recommended judicial reforms including adopting some aspects of the
adversarial system of
common law legal systems including the possibility to accept a reduced sentence for certain crimes in exchange for a guilty plea, however the proposal was rejected. It was brought up again, and finally in 2004 a proposal was accepted for admitting a guilty plea for less serious crimes punishable by a fine or less than five years imprisonment. Suspects have a week to consider their course of action, and may discuss it with their attorney.
Evidence All evidence legally obtained is admissible at trial. Mistreatment of a suspect can render evidence inadmissible unless authorities can prove the contrary. A defendant's past criminal history may be considered not only at sentencing but also at trial to determine guilt or innocence. For certain major offenses, the court is provided with additional material on the personality, means, and family situation of the defendant, per article 81 of the code of criminal procedure.
Judgment After the audience is over and the court has announced the date of the sentencing, the judge, or judges, retire to consider the case and render their judgment. Their decision is based on their personal sentiment, per articles 353 and 427 of the code. In the
Ancien regime, judges were obliged to render decisions based on specific evidence presented, but this was abolished during the
French Revolution because they considered it subject to prejudice, and a failure to consider individual circumstances. The judge can order an acquittal or a conviction, and the penalty may rise to life in prison (the death penalty was abolished in 1981). If the victim sought plaintiff damages and a conviction was obtained, then the judge may agree to award damages to the victim as civil party ().
Enforcement of judgment == Actions ==