Key Benefits:
The National Assembly and the Senate adopted,
Vu la Constitutional Council decision No. 2005-527 DC of 8 December 2005 ;
The President of the Republic enacts the following legislation:
After section 132-16-2 of the Criminal Code, two articles 132-16-3 and 132-16-4 are inserted as follows:
"Art. 132-16-3. - Crimes of trafficking in human beings and procuring under articles 225-4-1, 225-4-2, 225-4-8, 225-5 to 225-7 and 225-10 are considered, in the context of recidivism, to be the same offence.
"Art. 132-16-4. - The offences of voluntary violence against persons and any offence committed with the aggravating circumstance of violence are considered, in the context of recidivism, to be the same offence. »
I. - After section 132-16-2 of the Criminal Code, an article 132-16-6 is inserted as follows:
"Art. 132-16-6. - The convictions imposed by the criminal courts of a Member State of the European Union shall be taken into account in respect of recidivism in accordance with the rules laid down in this subsection. »
II. - Section 442-16 of the same code is repealed.
Sub-sections 3 and 4 of chapter II, section 1, title III, of Book I of the Criminal Code become sub-sections 4 and 5 and, after subsection 2, a sub-section 3 is inserted as follows:
"Subsection 3
" Penalties applicable in the event of reiteration of offences
"Art. 132-16-7. - There is a reiteration of criminal offences where a person has already been permanently convicted of a crime or offence and commits a new offence that does not meet the conditions of legal recidivism.
"The penalties for the offence committed in reiteration are cumulative without limitation of quantum and without possibility of confusion with the sentences definitively pronounced during the previous conviction. »
Article 132-24 of the Criminal Code is supplemented by a paragraph as follows:
"The nature, quantum and regime of sentencing are set in a way that reconciles the effective protection of society, the punishment of the convicted person and the interests of the victim with the need to promote the insertion or reintegration of the convicted person and to prevent the commission of new offences. »
I. - The first paragraph of Article 132-41 of the Criminal Code is supplemented by a sentence as follows:
"When the person is in a state of legal recidivism, he or she is applicable to convictions of imprisonment for a period of not more than 10 years. »
II. - The first paragraph of section 132-42 of the same code is supplemented by two sentences as follows:
"When the person is in a state of legal recidivism, this period may be increased to five years. This period may be extended to seven years when the person is again in a state of legal recidivism. »
III. - The last paragraph of the same article 132-42 is supplemented by a sentence as follows:
"However, this part cannot exceed five years' imprisonment. »
Article 132-41 of the Criminal Code is supplemented by a paragraph to read:
"Criminal jurisdiction shall not impose a probation sentence against a person who has already been subjected to two convictions with a probation sentence for identical or similar offences within the meaning of sections 132-16 to 132-16-4 and in a state of legal recidivism. When it comes to either a crime, or an offence of voluntary violence, an offence of sexual assault or an offence committed with the aggravating circumstance of violence, the court cannot pronounce the stay with trial against a person who has already been subjected to a sentence with a condition of probation for similar offences or a similar offence. However, these provisions are not applicable where the probationary period is limited to part of the prison sentence imposed under the provisions of the last paragraph of section 132-42. »
After Article 465 of the Code of Criminal Procedure, an article 465-1 is inserted as follows:
"Art. 465-1. - When the facts are committed in a state of lawful recidivism, the court may, by special and reasoned decision, issue a warrant of filing or arrest against the accused, regardless of the length of the sentence imposed.
"If this is a legal recidivism within the meaning of sections 132-16-1 and 132-16-4 of the Criminal Code, the court shall issue a warrant for filing at the hearing, regardless of the quantum of the sentence imposed, unless it decides otherwise by a specially reasoned decision. »
I. - Article 717-1 of the Code of Criminal Procedure is amended as follows:
1° In the last paragraph, the words: "for the murder or murder of a 15-year-old minor preceded or accompanied by rape, torture or barbaric acts or for any offence referred to in sections 222-23 to 222-32 and 227-25 to 227-27 of the Criminal Code" are replaced by the words: "for an offence for which socio-judicial follow-up is incurred";
2° Two subparagraphs are added:
"Without prejudice to the provisions of section 763-7, the judge of enforcement of sentences may propose to any convicted person under the provisions of the preceding paragraph to undergo treatment during the period of his or her detention, if a physician considers that the person is likely to be subject to such treatment.
"The provisions of sections L. 3711-1, L. 3711-2 and L. 3711-3 of the Public Health Code are applicable to the physician dealing with the detained sentenced person, who delivers to the detainee certificates of follow-up of the treatment in order to allow him to justify it to the judge of the application of the penalties for obtaining the reductions of the sentence under section 721-1. »
II. - Section 721-1 of the same code is amended as follows:
1° In the first sentence of the first paragraph, after the words: "a formation", the words are inserted: ", following a therapy intended to limit the risk of recidivism";
2° In the second sentence of the first paragraph, the words: "to a socio-judicial follow-up including a care order, and who refuse to undergo treatment" are replaced by the words: "for an offence for which socio-judicial follow-up is incurred and who refuse to follow the treatment offered to them."
I. - In the first paragraph of Article 717-3 of the Code of Criminal Procedure, after the words "professional training" are inserted the words "or general".
II. The second paragraph of article 717-3 is as follows:
"In correctional institutions, all measures are taken to ensure professional activity, vocational or general training for those incarcerated who apply. »
At the beginning of the first paragraph of Article 720-1-1 of the Code of Criminal Procedure, the words are inserted: "Unless there is a serious risk of renewal of the offence."
I. - Before the last paragraph of Article 720-1-1 of the Code of Criminal Procedure, a sub-paragraph is inserted as follows:
"If the suspension of sentence has been ordered for a conviction in criminal matters, medical expertise to verify that the conditions of the suspension are always met must intervene every six months. »
II. - The provisions of this section shall apply to suspensions pending on the date of entry into force of this Act, irrespective of the date of commission of the facts giving rise to the conviction.
Article 721 of the Code of Criminal Procedure is amended as follows:
1° In the first paragraph, after the words: "the following and", the words are inserted: ", for a penalty of less than one year or for the penalty part less than a full year,"
2° The same paragraph is supplemented by the words: "; for penalties greater than one year, the total reduction of seven days per month may not exceed two months. » ;
3° After the same preambular paragraph, a subparagraph shall read:
"When the convicted person is in a state of legal recidivism, the penalty reduction credit shall be calculated at two months in the first year, one month in the following years and, for a penalty of less than one year or for the penalty of less than one full year, five days a month; for penalties greater than one year, however, the total reduction for five days per month may not exceed one month. However, the provisions of this paragraph shall not be taken into account in determining the date on which a conditional release may be granted to the convicted person, with reference to a penalty reduction credit that would be calculated in accordance with the provisions of the first paragraph. » ;
4° After the second preambular paragraph, a sub-item reads as follows:
"When the convicted person is in a state of legal recidivism, the withdrawal under the third paragraph of this article is then two months maximum per year and five days per month. » ;
5° In the penultimate paragraph, the words "of the first paragraph" are replaced by the words "of the first or second paragraph", and the words "of the second paragraph" are replaced by the words "of the third paragraph".
After Article 723-28 of the Code of Criminal Procedure, a section 9 is inserted as follows:
“Section 9
“Judicial supervision provisions
of Dangerous Persons Responsible for Crime or Crime
"Art. 723-29. - When a person has been sentenced to a custodial sentence of a term of ten years or more for a crime or offence for which the socio-judicial follow-up is incurred, the judge of the application of the penalties may, upon requisitions of the public prosecutor, order as a security measure and for the sole purpose of preventing a recidivism of which the risk seems to be proven, that the person will be placed under judicial supervision upon release and
"Art. 723-30. - Judicial supervision may include the following obligations:
"1° Obligations provided by Article 132-44 and by the 2°, 3°, 8°, 9°, 11°, 12°, 13° and 14° of Article 132-45 of the Penal Code;
"2° Obligations provided by articles 131-36-2 (1°, 2° and 3°) and 131-36-4 of the same code;
"3° Obligation provided by section 131-36-12 of the same code.
"Art. 723-31. - The risk of recidivism referred to in section 723-29 must be recognized by medical expertise ordered by the judge of enforcement of sentences in accordance with the provisions of section 712-16, and the conclusion of which reveals the danger of the convicted person. This expertise may also be ordered by the public prosecutor.
"Art. 723-32. - The decision under Article 723-29 shall be taken, before the date for the release of the convicted person, by a judgment rendered in accordance with the provisions of Article 712-6. Where the obligation referred to in the 3rd of Article 723-30 is provided, the decision shall take place after notice of the multidisciplinary commission of security measures. During the conflicting debate under section 712-6, the convict is necessarily assisted by a lawyer chosen by him or, at his request, appointed by the sticker.
"The judgment specifies the obligations to which the convict is held, and the duration of those obligations.
"Art. 723-33. - Convicts under judicial supervision are also subject to assistance and control measures to facilitate and verify their reintegration.
"These measures and the obligations to which the convicted person is bound are implemented by the judge of the application of the penalties assisted by the prison service of insertion and probation, and, where applicable, with the assistance of the bodies authorized to do so.
"Art. 723-34. - The judge of enforcement of sentences may amend the obligations to which the convicted person is bound by an order made in accordance with the terms and conditions laid down in section 712-8.
"If the reinsertion of the convicted person appears to have been acquired, it may, by judgment rendered in accordance with the terms and conditions laid down in Article 712-6, terminate these obligations.
"If the behaviour or personality of the convict warrants it, it may, by judgment rendered in the manner provided for in the last sentence of the first paragraph of Article 723-32, decide to extend the duration of these obligations, without the total duration of those obligations exceeding that provided for in Article 723-29.
"Art. 723-35. - In the event of failure by the convicted person to comply with the obligations and prohibitions imposed on him, the judge of the application of the penalties may, in accordance with the terms provided for in article 712-6, withdraw all or part of the duration of the reductions of the penalty he has received and order his reincarceration. The provisions of Article 712-17 shall apply.
"The judge of the application of the penalties warns the convicted person that the measures provided for in articles 131-36-4 and 131-36-12 of the Criminal Code may not be implemented without his consent, but that, in the absence of such measures, all or part of the duration of the reductions of the penalty which he has received may, pursuant to the first paragraph, be withdrawn from him.
"Art. 723-36. - The provisions of this section are not applicable if the person has been sentenced to a socio-judicial follow-up or is subject to parole.
"Art. 723-37. - A decree shall determine, as appropriate, the terms and conditions for the application of the provisions of this section. »
Article 729 of the Code of Criminal Procedure is amended as follows:
1° The last sentence of the second paragraph is supplemented by the words: "or, if the convict is in a state of legal recidivism, twenty years";
2° The last paragraph is as follows:
"For those sentenced to life imprisonment, the trial time is 18 years; it is twenty-two years if the convict is in a state of legal recidivism. »
The last paragraph of section 729-3 of the Code of Criminal Procedure is supplemented by the words "or an offence committed in a state of legal recidivism".
After section 132-16-2 of the Criminal Code, an article 132-16-5 is inserted as follows:
"Art. 132-16-5. - The state of legal recidivism may be relieved by the court of judgment even when it is not mentioned in the proceedings, provided that during the hearing the person prosecuted has been informed of it and that it has been put in a position to be assisted by a lawyer and to make representations. »
The last paragraph of section 132-19 of the Penal Code is supplemented by a sentence as follows:
"However, there is no special reasoning when the person is in a state of legal recidivism. »
I. - In the third paragraph of Article 398 of the Code of Criminal Procedure, the words "unless the penalty incurred, taking into account the legal recidivism of the accused, is greater than five years' imprisonment" are deleted.
II. - Article 398-2 of the same code is amended as follows:
1° In the first sentence of the last paragraph, the words: "if the complexity of the facts warrants it" are replaced by the words: "if this reference appears to be justified because of the complexity of the facts or, in particular with regard to the provisions of the last paragraph, because of the importance of the sentence likely to be pronounced";
2° It is added a paragraph to read:
"The correctional court sitting in its composition as provided for in the third paragraph of section 398 shall not impose a firm term of imprisonment of more than five years. »
After section 131-36-8 of the Criminal Code, a sub-section 7 is inserted as follows:
"Subsection 7
“From mobile electronic surveillance
as a security measure
"Art. 131-36-9. - Socio-judicial monitoring may also include, as a security measure, the placement under mobile electronic surveillance, in accordance with the provisions of this subsection.
"Art. 131-36-10. - Placement under mobile electronic surveillance can only be ordered against a major person sentenced to deprivation of liberty for a period of seven years and whose medical expertise has found the danger, when this measure appears indispensable to prevent recurrence from the day the deprivation of liberty ends.
"Art. 131-36-11. - When ordered by the correctional court, the placement under mobile electronic surveillance must be the subject of a specially motivated decision.
"When ordered by the court of attendance, it must be decided under the conditions of majority provided for in article 362 of the Code of Criminal Procedure for the maximum sentence.
"Art. 131-36-12. - The custodial charge for the convict is the obligation to carry for a period of two years, renewable once in criminal matters and twice, a transmitter allowing at any time to determine remotely its location throughout the national territory.
"The president of the court warns the convicted person that the placement under mobile electronic surveillance cannot be implemented without his or her consent, but that, if he or she fails to comply with his or her obligations, imprisonment under the third paragraph of section 131-36-1 may be enforced.
"Art. 131-36-13. - The terms and conditions for the execution of placement under mobile electronic surveillance are set out in Title VII ter of Book V of the Code of Criminal Procedure. »
After Article 763-9 of the Code of Criminal Procedure, a title VII ter is inserted as follows:
« TITRE VII TER
" OF THE SUB SURVEILLANCE SUSTAINABLE ELECTRONIC PLACEMENT
"Art. 763-10. - At least one year before the scheduled date of release, a person sentenced to mobile electronic surveillance under articles 131-36-9 to 31-36-12 of the Criminal Code is subject to a review to assess the danger and the risk of commissioning a new offence.
"This review is carried out by the judge of enforcement of sentences, following the advice of the multidisciplinary commission of security measures composed in terms determined by the decree provided for in article 763-14. The provisions of Article 712-16 shall apply.
"In light of this review, the enforcement judge determines, in accordance with the terms and conditions set out in section 712-6, the period in which the convicted person is effectively placed under mobile electronic surveillance. This period may not exceed two years, renewable once in criminal matters and twice in criminal matters.
"The judge of enforcement of sentences reminds the convicted person that the placement under mobile electronic surveillance cannot be implemented without his or her consent, but that, if he or she fails to comply with his or her obligations, imprisonment under the third paragraph of section 131-36-1 of the Criminal Code may be enforced.
"Six months before the expiry of the time limit, the judge of the application of the sentences shall, in the same manner, decide on the extension of the placement under mobile electronic surveillance within the limit provided for in the third paragraph.
"In the absence of an extension, the placement under mobile electronic surveillance is terminated.
"Art. 763-11. - For the duration of the placement under mobile electronic surveillance, the judge of the application of the sentences may, on his own motion, upon requisitions of the public prosecutor or at the request of the convicted person, if any, through his or her lawyer, amend, supplement or delete the obligations resulting from the said placement.
"Art. 763-12. - The convict placed under mobile electronic surveillance shall be held at the port, throughout the duration of the placement, of a device incorporating a transmitter at any time to determine its location remotely throughout the national territory.
"This device is installed on the sentenced person no later than one week before his release.
"The process used is approved for this purpose by the Minister of Justice. Its implementation must ensure respect for the dignity, integrity and privacy of the person and promote social reintegration.
"Art. 763-13. - Remote control of the location of the convicted person is the subject of automated processing of personal data, implemented in accordance with the provisions of Act No. 78-17 of 6 January 1978 on computers, files and freedoms.
"As part of the research on a criminal or criminal procedure, judicial police officers specially authorized to do so are allowed to consult the data in this treatment.
"Art. 763-14. - A decree in the Council of State determines the conditions for the application of this title. This decree specifies the conditions under which the assessment provided for in Article 763-10 is implemented. It also specifies the conditions for the empowerment of persons of private law who may be entrusted with the detachable technical services of the sovereignty functions relating to the implementation of the placement under mobile electronic surveillance, including the design and maintenance of the device provided for in Article 763-12 and the automated processing provided for in Article 763-13.
"The provisions of this decree relating to the automated processing provided for in Article 763-13, which specify, inter alia, the shelf life of recorded data, are taken after the advice of the National Commission of Computer Science and Freedoms. »
Article 763-3 of the Code of Criminal Procedure is supplemented by a paragraph to read:
"The judge of enforcement of sentences may also, after having conducted the review under section 763-10, order the custodian to be placed under mobile electronic surveillance. The sentencing judge warns the convicted person that placement under mobile electronic surveillance cannot be implemented without his or her consent, but that, if he or she fails to comply with his or her obligations, imprisonment under the third paragraph of section 131-36-1 of the Criminal Code may be enforced. The provisions of the second paragraph of this article shall apply. »
After Article 731 of the Code of Criminal Procedure, an article 731-1 is inserted as follows:
"Art. 731-1. - The person subject to parole may be subject to the obligations that are those of socio-judicial follow-up, including the injunction of care, if convicted of a crime or offence for which that measure was incurred.
"This person may also be placed under mobile electronic surveillance under the conditions and conditions set out in sections 763-10 to 763-14. »
I. - Article 221-9-1 of the Criminal Code reads as follows:
"Art. 221-9-1. - Individuals guilty of the crimes provided for in section 1 of this chapter shall also be subject to socio-judicial follow-up in accordance with the terms provided for in articles 131-36-1 to 131-36-13. »
II. - After article 224-9 of the same code, an article 224-10 is inserted as follows:
"Art. 224-10. - Individuals guilty of the crimes provided for in section 1 of this chapter shall also be subject to socio-judicial follow-up in accordance with the terms provided for in articles 131-36-1 to 131-36-13. »
I. - The beginning of article 222-48-1 of the Criminal Code is as follows:
"People who are guilty of torture or barbaric acts or offences... (the rest without change). »
II. - At the end of the same article 222-48-1, the reference: "131-36-8" is replaced by the reference: "131-36-13".
III. - At the end of section 227-31 of the same code, the reference: "131-36-8" is replaced by the reference: "131-36-13".
I. - After article 322-17 of the Criminal Code, it is inserted an article 322-18 as follows:
"Art. 322-18. - Individuals guilty of the offences defined in articles 322-6 to 322-11 may also be sentenced to socio-judicial follow-up in the manner provided for in articles 131-36-1 to 131-36-13. »
II. - In the penultimate paragraph of section 322-5 of the same code, the words: "up to eight days" are replaced by the words: "for at least eight days".
After article L. 3711-4 of the Public Health Code, an article L. 3711-4-1 is inserted as follows:
"Art. L. 3711-4-1. - If the convict's personality justifies it, the co-ordinating physician may invite the convict to choose, either in addition to the attending physician or instead of the convict, a treating psychologist whose conditions of diploma and missions are specified by the decree provided for in article L. 3711-5.
"The provisions of sections L. 3711-1 to L. 3711-3 applicable to the attending physician are applicable to that psychologist except those provided for in the last paragraph of section L. 3711-3. »
Section L. 3711-3 of the Public Health Code is supplemented by a paragraph to read:
"When approved for this purpose, the attending physician is entitled to prescribing to the convict, with the written consent and renewed, at least once a year, of the convict, a treatment using medications whose list is fixed by order of the Minister of Health and which result in a reduction in the libido, even if the authorization for placing them on the market has not been issued for that indication. »
I. - The Code of Criminal Procedure is amended as follows:
1° Article 706-47 is supplemented by a paragraph as follows:
"These provisions are also applicable to procedures for crimes of murder or murder committed with torture or acts of barbarity, crimes of torture or acts of barbarity and murder or murder committed in a state of legal recidivism. » ;
2° Before section 706-53-1, the title of chapter II of title XIX of Book IV is read as follows: "From the automated national judicial file of perpetrators of sexual or violent offences";
3° The beginning of Article 706-53-1 is thus written: "The automated national judicial file of perpetrators of sexual or violent offences constitutes... (the rest without change). » ;
4° In the penultimate paragraph of Article 706-53-5, after the words: "to this end", the words are inserted: "to the police station or the gendarmerie unit of his home, or";
5° The fourth paragraph (3°) of Article 706-53-7 is supplemented by the words: "as well as for the control of the exercise of these activities or professions";
6° The same article 706-53-7 is supplemented by a paragraph to read:
"The judicial police officers may also, on the instruction of the prosecutor of the Republic or the investigating judge or with the authorization of the magistrate, consult the file from the identity of a person held in custody in the context of a flogging investigation or preliminary investigation or in the execution of a rogatory commission, even if this procedure does not concern any of the offences mentioned in the 2nd of this article. »
II. - Article 216 of Act No. 2004-204 of 9 March 2004 on the adaptation of justice to the evolution of crime is supplemented by a sentence as follows:
"As part of this research, the provisions of the first paragraph of Article 78 of the Code of Criminal Procedure are applicable. »
III. - The provisions of Article 216 of Law No. 2004-204 of 9 March 2004 on the adaptation of justice to the evolution of crime are applicable to the authors of the offences referred to in the last paragraph of Article 706-47 of the Code of Criminal Procedure in its drafting resulting from 1° of the I of this Article.
I. - Article 712-7 of the Code of Criminal Procedure is supplemented by a sub-paragraph as follows:
"If requested, the civil party's lawyer may attend the adversarial debate before the court of application of the penalties to make his observations, prior to the public prosecutor's requisitions. »
II. - Article 712-13 of the same code is supplemented by a paragraph as follows:
"If requested, the civil party's lawyer may attend the adversarial debate before the Appeal Court's enforcement board on appeal of a judgment of the Penal Enforcement Court to make its submissions, prior to the requisitions of the Public Prosecutor's Office. »
After section 21 of Act No. 2003-239 of 18 March 2003 for internal security, an article 21-1 is inserted as follows:
"Art. 21-1. - I. - The services and units of the national police and gendarmerie responsible for a judicial police mission may carry out, under the control of the judicial authorities, automated treatments of personal data collected during the preliminary investigations or flogging or investigations carried out on the rogatory commission and concerning any crime or offence which infringes on persons punished by more than five years of imprisonment or which infringes on property and punished by more than seven years
"These treatments may record personal data of the nature of those mentioned in I of Article 8 of Act No. 78-17 of 6 January 1978 relating to computing, files and freedoms, to the strict extent necessary for the purposes of criminal research assigned to these treatments.
“II. - These treatments may contain data on persons, without age limitation:
« 1° Against which there are serious or concordant clues likely to have been involved, as perpetrators or accomplices, in the commission of an offence referred to in the first paragraph of the I; the recording of data concerning these persons may intervene, if any, after their conviction;
« 2° Against which there are serious reasons to suspect that they have committed or attempted to commit an offence referred to in the first paragraph of the I;
« 3° Susceptible to provide information on the facts within the meaning of articles 62, 78 and 101 of the Code of Criminal Procedure and whose identity is cited in a procedure for an offence referred to in the first paragraph of the I;
« 4° Victims of an offence referred to in the first paragraph of the I;
« 5° Conducting an investigation or investigation into the causes of death, as provided for in section 74 of the Code of Criminal Procedure, or an investigation or investigation into the causes of a disturbing or suspicious disappearance, as provided for in sections 74-1 and 80-4 of the Code.
"III. - The provisions of Article 21 III shall apply to such treatments.
"The persons referred to in 2°, 3° and 4° of II may request the deletion of the data recorded in the processing as soon as the author of the facts has been permanently convicted, unless the prosecutor of the competent Republic prescribes the retention of the data for reasons related to the purpose of the treatment, in which case they are referred to.
"IV. - The personal data referred to in this article shall be consigned to:
" - specially authorized and individually designated personnel of the national police and gendarmerie;
" - the prosecutors and the investigating magistrates for the investigation of the offences before them.
"The empowerment specifies the nature of the data to which it authorizes access.
"V. - The provisions of section 17-1 of Act No. 95-73 of 21 January 1995 on security orientation and programming are not applicable to the treatments provided for in this section.
"VI. - Pursuant to article 26 of Act No. 78-17 of 6 January 1978 referred to above, a decree in the Council of State, taken after the advice of the National Commission of Computer Science and Freedoms, sets out the modalities for the application of this article. It specifies the duration of the retention of recorded data, the terms and conditions for the empowerment of persons referred to in the second paragraph of IV, and, where applicable, the conditions under which persons concerned may exercise their right of access indirectly, in accordance with the provisions of Article 41 of Act No. 78-17 of 6 January 1978 referred to above. »
I. - After article 222-31 of the Criminal Code, an article 222-31-1 is inserted as follows:
"Art. 222-31-1. - Where the rape or sexual assault is committed against a minor by a person holding a child on the person of the parental authority, the court of judgment must decide on the total or partial withdrawal of that authority under the provisions of sections 378 and 379-1 of the Civil Code.
"It can then rule on the withdrawal of this authority in that it concerns the minor brothers and sisters of the victim.
"If the proceedings take place before the court of siege, the court decides on this issue without the assistance of the jurors. »
II. - After article 227-28-1 of the same code, an article 227-28-2 is inserted as follows:
"Art. 227-28-2. - When the sexual assault is committed on the victim by a person holding parental authority, the court of judgment must decide on the total or partial withdrawal of that authority under the provisions of sections 378 and 379-1 of the Civil Code.
"It can then rule on the withdrawal of this authority in that it concerns the minor brothers and sisters of the victim.
"If the proceedings take place before the court of siege, the court decides on this issue without the assistance of the jurors. »
Article 222-24 of the Penal Code is supplemented by a 10° as follows:
« 10° When committed in competition with one or more other rapes committed on other victims. »
In the second paragraph (1°) of Article 144 of the Code of Criminal Procedure, after the words "on witnesses or victims" are inserted the words "and their families".
Section L. 3213-7 of the Public Health Code is supplemented by a paragraph to read:
"For all useful purposes, the prosecutor of the Republic informs the representative of the State in the department of his requisitions as well as the dates of hearing and decisions rendered. »
I. - After the 5th of Article 41-1 of the Code of Criminal Procedure, it is inserted a 6th such as:
« 6° In the event of an offence committed either against his or her spouse or concubin, or against his or her children or children, ask the perpetrator of the facts to reside outside the domicile or residence of the couple and, if necessary, to refrain from appearing in that domicile or residence or in the immediate vicinity of the latter, as well as, if necessary, to be the subject of health, social or psychological care. »
II. - After the 13th of the article 41-2 of the same code, it is inserted a 14° as follows:
« 14° In the event of an offence committed either against his or her spouse or concubin, or against his or her children, to reside outside the domicile or residence of the couple, and, if necessary, to refrain from appearing in that domicile or residence or at the immediate vicinity of the couple, and, if necessary, to receive health, social or psychological care. »
III. - After the 16th of article 138 of the same code, it is inserted a 17th in this way:
« 17° In the event of an offence committed either against his or her spouse or concubin, or against his or her children, to reside outside the domicile or residence of the couple, and, if necessary, to refrain from appearing in that domicile or residence or at the immediate vicinity of the couple, and, if necessary, to receive health, social or psychological care. »
IV. - Article 132-45 of the Penal Code is supplemented by a 19° as follows:
« 19° In the event of an offence committed either against his or her spouse or concubin, or against his or her children, reside outside the domicile or residence of the couple and, if necessary, refrain from appearing in that domicile or residence or at the immediate vicinity of the couple, as well as, if necessary, be the subject of health, social or psychological care. »
I. - Article 434-7-2 of the Penal Code is amended as follows:
1° The words: "to reveal, directly or indirectly, this information to people who are likely to be involved" are replaced by the words: "to knowingly reveal this information to people whom it knows likely to be involved";
2° The words: "is of a nature to be obstructed" are replaced by the words: "is carried out in the intention of obstructing";
3° The words: "five years of imprisonment and 75,000 fines" are replaced by the words: "two years of imprisonment and 30,000 fines";
4° It is added a paragraph to read:
"When the investigation or investigation relates to a crime or offence punishable by ten years' imprisonment under the provisions of Article 706-73 of the Code of Criminal Procedure, the penalties are increased to five years' imprisonment and 75,000 fines. »
II. - In the first sentence of the second paragraph of Article 43 of the Code of Criminal Procedure, the words: "a person in charge of the public authority or in charge of a public service mission" are replaced by the words: "a magistrate, a lawyer, a public or ministerial officer, a national gendarmerie member, a national police officer, customs or prison administration officer or any other person in charge of the public authority or in charge of a public service".
Article 56-1 of the Code of Criminal Procedure is amended as follows:
1° The first paragraph is replaced by two subparagraphs:
"The searches in a lawyer's office or his home may only be carried out by a magistrate and in the presence of the sticker or his delegate, following a written and reasoned decision taken by the magistrate, which indicates the nature of the offence or the offences on which the investigations are carried, the reasons justifying the search and the object of it. The contents of this decision are brought from the beginning of the search to the attention of the sticker or his delegate by the magistrate. He and the sticker or his or her delegate have the sole right to consult or to know the documents on the premises prior to their possible seizure. No seizure may relate to documents relating to other offences than those mentioned in the above-mentioned decision. The provisions of this sub-paragraph shall be inevitably null and void.
"The magistrate conducting the search ensures that the investigations carried out do not affect the free exercise of the legal profession. » ;
2° It is added a paragraph to read:
"The provisions of this section shall also apply to searches carried out in the premises of the Bar Association or the law enforcement agencies of lawyers. In this case, the powers entrusted to the judge of freedoms and detention are exercised by the president of the Court of Grand Instance who must be previously notified of the search. The same is true in the event of a search in the office or in the home of the sticker. »
Article 100-5 of the Code of Criminal Procedure is supplemented by a paragraph to read:
"Unfortunately, correspondence with a defence lawyer cannot be transcribed. »
I. - Article 76 of the Code of Criminal Procedure is amended as follows:
1° In the first sentence of the last paragraph, after the words: "of the relative investigation", the words "to a crime or" are inserted;
2° It is added a paragraph to read:
"For the purposes of the provisions of the preceding paragraph, the judge shall have jurisdiction over the freedoms and detention of the Court of Grand Instance, which the prosecutor of the Republic directs the investigation, regardless of the jurisdiction in which the search must take place. The judge of liberties and detention may then move to places regardless of their location in the national territory. The prosecutor of the Republic may also appeal to the judge of freedoms and detention of the High Court in whose jurisdiction the search must take place, through the prosecutor of the Republic of that jurisdiction. »
II. - Article 135-2 of the same code is supplemented by two paragraphs as follows:
"The submission to the judge of freedoms and detention provided for in the above provisions is not necessary if, within the time limits provided for in this submission, the person may appear before the court of trial of the facts.
"The provisions of this section are also applicable to arrest warrants issued after the settlement order. However, they are not applicable where, after the issuance of the arrest warrant issued during the course of the investigation or after the order of the arrest, the person was sentenced to a custodial sentence, either in correctional matters by an contradictory or deemed contradictory judgment or in criminal matters by default; The same is not applicable when the warrant was issued as a result of such a conviction. In such cases, without the need to submit it to the Justice of Freedoms and Detention, the arrested person shall be held in pre-trial detention until the expiry of the appeal period and, in the event of an appeal, until his appearance before the court of judgment, without prejudice to his right to file applications for release. »
III. - In the second paragraph of Article 379-4 of the same Code, after the reference: "Article 379-3", the words "or given before the conviction" are inserted.
IV. - Article 498-1 of the same code is supplemented by two paragraphs as follows:
"If the person has been convicted after the expiry of the 10-day period provided for in the first paragraph and is appealed in accordance with the provisions of the second paragraph, the person shall, however, remain detained under the pretrial detention regime and without prejudice to the right to file applications for release until the hearing before the Court of Appeal.
"The provisions of this Article shall also apply in the event of a defect. »
V. - After the first paragraph of article 695-36 of the same code, it is inserted a paragraph as follows:
"The provisions of section 74-2 are then applicable, the powers of the prosecutor of the Republic and the judge of freedoms and detention provided for in that article being entrusted respectively to the Attorney General and to the President of the board of inquiry or to a counsel by him or her designated. »
VI. - After the first paragraph of article 696-21 of the same code, it is inserted a paragraph as follows:
"The provisions of section 74-2 are then applicable, the powers of the prosecutor of the Republic and the judge of freedoms and detention provided for in that article being entrusted respectively to the Attorney General and to the President of the board of inquiry or to a counsel by him or her designated. »
VII. - Article 706-92 of the same code is supplemented by a paragraph as follows:
"For the purposes of the provisions of articles 706-89 and 706-90, the judge of freedoms and detention of the Court of Grand Instance, whose prosecutor of the Republic directs the investigation, irrespective of the jurisdiction in which the search must take place. The judge of liberties and detention may then move to the premises regardless of their location throughout the national territory. The prosecutor of the Republic may also appeal to the judge of freedoms and detention of the High Court in whose jurisdiction the search must take place, through the prosecutor of the Republic of that jurisdiction. »
VIII. - The second paragraph of article 706-96 of the same code is supplemented by a sentence as follows:
“The provisions of this paragraph shall also apply to operations which have the purpose of uninstallation of the technical device having been established. »
IX. - At the end of the last paragraph of Article 716-4 of the same code, after the words: "From Article 712-17", the words ", from Article 712-19".
X. - In the last paragraph of section 721-3 of the same code, the reference: "712-6" is replaced by the reference: "712-7".
XI. - In the first sentence of article 723-2 of the same code, after the words: "Semi-Freedom" are inserted the words: "or outward placement".
XII. - 1. At the end of the first sentence of the first paragraph of Article 733-2 of the Code of Criminal Procedure, the words "in accordance with the first paragraph of Article 131-22 of the Criminal Code" are replaced by the words "in accordance with the provisions of the second paragraph of Articles 131-9 and 131-11 of the Criminal Code".
2. 2° of section 174 of Act No. 2004-204 of 9 March 2004 on the adaptation of justice to changes in crime is repealed.
XIII. - In the first paragraph of section 742 of the same code, the words "motivated order" are replaced by the words "motivated judgment".
XIV. - 1. Section 762 of the same code becomes section 761-1.
2. It is re-established in the same code an article 762 as follows:
“Art. 762. - Where the judge of the application of the penalties shall rule in accordance with the provisions of Article 754 to enforce the imprisonment for default of a fine-day, the provisions of Article 750 shall not apply.
“The provisions of articles 752 and 753 shall apply. For the purposes of section 754, a notice of receipt is sent by registered letter with the same effect as a command to pay. »
XV. - In the last paragraph of section 762-4 of the same code, the reference: "712-5" is replaced by the reference: "712-8".
Article 712-2 of the Code of Criminal Procedure is supplemented by a paragraph to read:
"For the operation of his office, the judge of the enforcement of sentences is assisted by a clerk and has a clerk's office. »
Regardless of the date of commission of the facts giving rise to the conviction, are immediately applicable:
1° The provisions of the second paragraph of Article 721 of the Code of Criminal Procedure, in their drafting pursuant to Article 12 of this Law, for convictions made after the date of entry into force of this Law;
2° The provisions of section 731-1 of the Code of Criminal Procedure, in their drafting pursuant to section 22 of this Act, for convictions pending enforcement after the date of entry into force of this Act.
The provisions of section 723-36 of the Code of Criminal Procedure, in their drafting as a result of section 13 of this Act and which prohibit the use of judicial supervision when the person has been sentenced to a socio-judicial follow-up, are not applicable to convictions for acts committed prior to the coming into force of this Act.
The provisions of Article 723-29, 1°, 2° and 3° of Article 723-30, and Articles 723-31 to 723-37 of the Code of Criminal Procedure relating to judicial supervision are immediately applicable to convicted persons whose risk of recidivism is found after the date of entry into force of this Act.
However, if they are persons convicted of acts committed before that date, the powers entrusted to the judge of enforcement of sentences by sections 723-29 and 723-31 are exercised by the court of enforcement of sentences. If the convicted person requests that the expertise provided for in section 723-31 be subject to counter-expertise, the latter is entitled.
For the application of the provisions of Article 723-29 to persons whose conviction was enforced before 1 January 2005, the penalty reductions that the convicted person received in accordance with the provisions of Article 721 of the Code of Criminal Procedure are taken into account in his writing before Act No. 2004-204 of 9 March 2004 on the adaptation of justice to the evolution of crime.
For the purposes of the provisions of Article 723-29 to persons convicted before 1 March 1994, it shall be taken into account the nature of the facts for which they have been convicted under the provisions of the Penal Code applicable before 1 March 1994, in relation to the qualifications provided for in the provisions of the Penal Code applicable from that date.
This Act is applicable in New Caledonia, French Polynesia and the Wallis and Futuna Islands.
This law will be enforced as a law of the State.
Done in Paris, December 12, 2005.
Jacques Chirac
By the President of the Republic:
The Prime Minister,
Dominique de Villepin
The Seal Guard, Minister of Justice,
Pascal Clément
Minister of Health and Solidarity,
Xavier Bertrand
(1) Act No. 2005-1549.
- Preparatory work:
National Assembly:
Bill No. 1961;
Report of Mr. Gérard Léonard on behalf of the Law Commission, 1979;
Discussion on 14 and 16 December 2004 and adoption on 16 December 2004.
Senate:
Proposal for a law, adopted by the National Assembly, No. 127 (2004-2005);
Report of Mr. François Zocchetto, on behalf of the Law Commission, No. 171 (2004-2005);
Discussion and adoption on 9 February 2005.
National Assembly:
Bill, amended by the Senate, No. 2093;
Report of Mr. Gérard Léonard on behalf of the Law Commission, No. 2452;
Discussion on 12 and 13 October 2005 and adoption on 13 October 2005.
Senate:
Proposal for a bill, adopted with amendments by the National Assembly on second reading, No. 23 (2005-2006);
Report of Mr. François Zocchetto, on behalf of the Law Commission, No. 30 (2005-2006);
Discussion on 25 and 26 October 2005 and adoption on 26 October 2005.
Senate:
Report of Mr. François Zocchetto, on behalf of the Joint Parity Commission, No. 72 (2005-2006);
Discussion and adoption on 22 November 2005.
National Assembly:
Bill, amended by the Senate on second reading, No. 2620;
Report of Mr. Gérard Léonard on behalf of the Joint Parity Commission, No. 2664;
Discussion and adoption on 24 November 2005.
- Constitutional Council:
Decision No. 2005-527 DC of 8 December 2005 published in the Official Journal of this day.
