Criminal law and criminal procedure

Criminal law (droit pénal) deals with an individual's rights and obligations under the law, as codified in a penal code. Under French criminal law, the penal code (CP) defines what acts (or omissions) are punishable. Criminal procedure (procédure pénale) focuses on how individuals accused of crimes are dealt with in the criminal justice system: how people are investigated, prosecuted, tried, and punished. In France, these procedural issues are codified in the French code of criminal procedure (Code de procédure pénale).^[2]

Roman law

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Digest, Book I

Old French law

The sixth century Lex Romana Visigothorum was the most important document reflecting this usage. But classic Roman law became vulgarized through mixture with local laws, and under the influence of victorious Germanic Frankish tribes, who had their own, customary law, which became written around the sixth century, such as the Lex Salica and the Lex Ripuaria. With a multiplicity of laws, which one was applied became aligned with the dominant race in the area where you lived. A demarcation line roughly along the Loire River evolved, where south of the Loire the law depended on a version of customary Roman law and was known as the "land of written law" (le pays de droit écrit), whereas north of the Loire, it depended more on laws of Germanic origin, and was known as the "land of customary law" (le pays de droit coutumier), which was still influenced by Roman law to fill in missing portions.^[7][8]

In the 12th century and after, there was renewed interest in Roman law throughout France. In the north, the local customary laws began to be consolidated and written, under a decree by Charles VII in 1454 (Ordinance of Montils-les-Tours),^[9][10] and became an important source of written law which influenced the Napoleonic code.^[10] Beyond just forming the base of written customary law, it also gained enough authority to inspire written commentary on it, which in the aggregate came to be recognized as a body of general principles of French customary law, despite some regional differences.^{[10][lower-alpha 3]} But it wasn't until the 17th century that many of them were written such as Customary law in Burgundy, in Paris, Brittany, and other French customary laws. The difference between (droit écrit and droit coutumier) lasted until 1789.^[9][12]

1670 code

The idea of codification of law goes back to antiquity.^{[lower-alpha 4]} The Ancien regime had no penal code; however, they had a code of criminal procedure in the form of the Criminal Ordinance of 1670 (ordonnance criminelle de 1670).^[13] It remained in force until the French Revolution, when it was repealed by a decree adopted by the National Constituent Assembly on 9 October 1789.

1808 code

The Code of Criminal Procedure (Code d'instruction criminelle) is a collection of legal texts which organized criminal procedure in the revolutionary era in France. Envisaged as early as 1801, it was promulgated on 16 November 1808.

The code established the Cour d'assises to try crimes (major felonies). There was one court in each department, and were the only courts in France to use juries, which were composed of twelve jurors. The court initially had a chief justice (président) and four other justices (two others after 1831) who voted with the président to determine the sentence. Trial proceedings in the cour d'assises were theatrical in nature, with the président, the jurors, the court clerk, the public prosecutor, witnesses, and the defendant all taking part in more or less formalized declarations at different points of the trial, which could go on for several days. It concluded with the prosecution offering its closing argument, followed by the defense. Flashes of oratorical style might be used to influence impressionable jurors. Before 1881, the chief justice might present a summation, which could neutralize somewhat the dramatic final arguments. Jurors rendered their verdict based on impressions, and a majority (seven of twelve) was sufficient to convict.^[14]

The 1808 code made legal assistance obligatory for a criminal defendant, and if he could not choose one, the judge assigned him one on the spot, under penalty of nullifying the entire procedure that follows.^{[15][lower-alpha 5]}

The 1808 code was repealed with the advent of the Fifth Republic, and replaced by the Code of criminal procedure of 1958.

Adoption

The Code of Criminal Procedure of 1958 is a direct successor to the Code d'Instruction Criminelle of 1808.^[16]

The new code was adopted by law 57-1426 of 31 December 1957,^[17] and has undergone many amendments since.^[18]

Summary

Book One (articles 11 to 230-53): Criminal policy, prosecution and investigation (conduite de la politique pénale, de l'exercice de l'action publique et de l'instruction) covers the conduct of the prosecution and investigation, the authorities responsible for them, identity checks by police (contrôle d'identité) [e.g., in [book one, title II: Titre II : Des enquêtes et des contrôles d'identité (Articles 53 à 78-7)], and the jurisdictions involved.^[19][20]

Book Two (articles 231 to 566): Trial courts (juridictions de jugement) is about trial jurisdictions, and covers: proceedings in the assize court, trial of middling-level crimes (délits), trial of petty infractions (contraventions), and citations and service (mandats?).^[19][21]

Book Three (articles 567 to 626-1): Extraordinary remedies (voies de recours extraordinaires). Concerns channels for extraordinary recourse, and mandates procedures for petition for review and revision.(demandes en révision et en réexamen)^[19][22]

Book Four (articles 627 to 706-182): Special procedures (procédures particulières). Describes procedures for some particular proceedings. These include trial in absentia; forgery; a case involving the disappearance of procedural papers;(is this one specific case)? the regulation of judges; transfer of venue and extradition; recusals; offenses committed abroad;^[19] and the prosecution, investigation of health and environmental matters.^[23]

Book Five (articles 707 to 803-8), sentence enforcement (exécution des sentences pénales). Covers the execution of penal sentences, detention, parole, sentence suspension, recognition of the identify (identity?) of convicted persons, imprisonment for payment, statute of limitation for punishments, the record of convictions, the rehabilitation of convicts, and the costs of justice.^[19][24]

Book Five B (articles A53-2 to A53-10) digital procedures. Covers use of the storage, use, and transmission of digital data, including such topics as electronic signature, electronic document storage, scanning and digitization of procedural documents, and digital transmission of documents.^[25]

It also includes Regulations of the Conseil d'Etat (Articles R1 to R430),^[26] Décrets simples (Articles D1 to D605),^[27] and Arrêtés (Articles A1 to A53-10).^[28]