JORF n ° 0108 on May 10, 2014, text no. 84 opinion on the overhaul of criminal investigation (1) NOR: CDHX1410112V ELI: not available (plenary session-April 25, 2014) 1. Several laws successive recent years investigative criminal, the most emblematic being probably that of April 14, 2011 relating to custody (2). Legislative work also recently continued with the adoption of a law on geolocation (3) and continues now with the tabling of a draft legislation relating to the transposition of the directive of 22 may 2012 concerning the right to information in criminal proceedings (4), even that the keeper of the seals has entrusted Mr. Jacques Beaume Attorney general at the Court of appeal of Lyon, a mission of reflection on the criminal investigation. This reveals an approach disparate, segmented by the issues relating to the investigation phase which reforms, which occur at the discretion of maturities of the dates of transposition of directives and developments of European jurisprudence and constitutional (5), are often unsuccessful, or even insufficient (6). The result is a complexification of the provisions of the code of criminal procedure, including the "loss of coherence" has been denounced as part of a symposium organized under the aegis of the Court of cassation (7). Under these conditions, the CNCDH can only support the intervention of a reform of the criminal investigation scope reflecting an overall political vision and therefore call for an ambitious and thoughtful legislative work (8).
2. the scientific material is extremely rich in this area. Pre-trial of criminal cases indeed gave rise to reports that have undoubtedly been date. At the end of the 1940s, Donnedieu de Vabres proposed already comprehensive reform of preparatory education (9) not without finding that the principle of the separation of the prosecution and the statement was in fact failed insofar as the Prosecutor, having a higher rank in the judicial hierarchy, at the time had the upper hand on the statement. Moreover, the investigating judge, so devoid of power over the judicial police, and bothered by the adversarial nature of the information, did not have freedom of action. Thus usefully stated Pierre Couvrat, the commission envisaged a role reversal or rather a shift in functions. It was a new principle of the separation of the functions of inquisition or information and the purely adjudicative functions, police and parquet on the one hand, judge of the other (10). The Prosecutor of the Republic therefore saw strengthened duties as agent of the Crown and information. For its part, the investigating judge was losing his power of direction but retained his judicial power by becoming "judge of instruction", a statement by the Prosecutor's office. This "judge of the statement" would have called to settle all contentious situations that can occur from the opening at the end of the statement. Donnedieu de Vabres commission was aware that, in order to play this role, it was necessary that the "judge of instruction" is at the same hierarchical level as the Attorney of the Republic and over its substitutes. The "judge of instruction" should be placed in a position of arbitrator. Immediately, some have argued that limited to its role as referee, the judge of instruction would be largely unoccupied in the lower courts. Others, in contrast, have raised the risk that the "judge of instruction" is the object of continual challenges on the part of the parties. For some, finally, the "judge of instruction" would be destitute against 'police dictatorship' (11). Donnedieu de Vabres report feeds lively debates in doctrine and in judicial circles, he did not have consensus, mainly on the deletion of the investigating judge. As Marguerite Arnal in his thesis: 'It's about the statement that brought the revolutionary ardour of the drafters of the Donnedieu de Vabres' (12). Is this not also on the statement that has brought "the revolutionary ardor" light Committee whose report was handed over to the President of the Republic on September 1, 2009, (13)?
3 another famous report was presented in 1991 to the keeper of the seals, the 'criminal justice and human rights' Commission, chaired by Mireille Delmas-Marty (14). At the end of two years of sustained work, the latter did not wish to propose a new code of criminal procedure "turnkey" but it laid the foundations of the guiding principles of the criminal procedure of preliminary section of the code of criminal procedure introduced by the Act of 15 June 2000 (15). The Delmas-Marty report then presents screenings and conditions for the removal of the judge of instruction and a new way of thinking and to organize pre-trial of criminal cases.
4. the report light borrows many report Donnedieu de Vabres and somewhat to the Delmas-Marty report without providing the necessary coherence to a criminal trial which must guarantee fundamental rights (16). Donnedieu de Vabres ― report but its discharge it was written in 1949, even before that the European Convention on human rights was signed — neither in the lightweight report, concern for the respect of fundamental rights is first. One feels in the Donnedieu de Vabres as in the lightweight report report a desire for effectiveness of the procedural system while the Delmas-Marty report focuses on enhanced protection of individual freedoms, on an update in harmony with the rules European and international and on a quest for balance to make a fair criminal trial. However, the major common point between these three reports is the fact that, firstly, the separation of the prosecution and the statement is no longer justified and that, on the other hand, the investigating judge has functions that appear incompatible. There stop convergences because responses to the finding are radically different in the Delmas-Marty report and in reports Donnedieu de Vabres and lightweight. In a few words, for commission Delmas-Marty, suppression of the investigating judge is possible only on two essential conditions: a new public prosecutor who would be the Crown today in the hands of the Executive Branch, and a judge of pre-trial which would be much more than the statement of Donnedieu de Vabres report judge or judge investigated and the freedoms of the lightweight report. It would be a judge of freedoms, expanded skills and redefined status.
5. If, to this day, the deletion of the investigating judge is hardly considered, a large number of issues covered in the aforementioned reports affects the investigation phase, which has not experienced the same changes as the preparatory instruction (17). The criminal investigation, unlike the statement, suffers from a real deficit in terms of respect for the principle of audi alteram partem and the rights of the defence, to which it must imperatively be remedied because including the requirements laid down by the European Court of the human rights, with respect to articles 5 and 6 of the ECHR (18). Furthermore, the gradual creation of a criminal law of the European Union in the wake of the Lisbon Treaty must not be overlooked (19). By a resolution of 24 November 2009 the Council of the European Union adopted the roadmap for strengthening procedural rights of suspects or persons prosecuted in criminal proceedings"(20). The motivations behind this initiative are well presented in the preamble to the text. Firstly, it must be recognized that the European Convention on human rights "is the common basis of the protection of the rights of suspects and persons prosecuted in criminal proceedings" and that it "constitutes an important basis enabling Member States to nurture and strengthen mutual trust in their criminal justice systems. On the other hand, admits that "the European Union could do more to ensure implementation and respect complete the standards set out by the Convention, and, where appropriate, to ensure a consistent application of the standards and raise the level of existing standards. This innovative observation is based on the increase in the number of people involved in criminal proceedings in one Member State other than that of their residence, as consequence of the opening of the borders: for these individuals, it is the protection of the right to a fair trial. The conclusion that succeeds is therefore that "to strengthen mutual trust within the European Union, it is important that in addition to the Convention there are standards of the European Union relating to the protection of the procedural rights which are properly implemented and applied in the Member States". Therefore, the Council of the European Union proposed a series of measures to reinforce the procedural guarantees of suspects and accused persons (21). These measures were taken by the Stockholm programme (point 2.4) (22) before be declined in several directives (23). Against a hasty understanding of the requirement for transposition of directives, should it prove that certain provisions do not respect the fundamental right to a fair trial (24), the CNCDH recalls that classic vigilance of the European Court of human rights if adds now the control of the Court of justice of the EU specifically called to ensure the conformity of this secondary legislation to the Charter of fundamental rights entered into force , like the Treaty of Lisbon, 1 December 2009 (25).
6. Finally, breaches fundamental rights and freedoms arising from the implementation of measures of constraints or investigation aimed at effectiveness of repression necessary not only to reflect on the status of the person in question, but to rethink of the Prosecutor's office and the modalities of the intervention of the judge in this initial phase of the trial become in practice the 'common' procedure of pre-trial of criminal cases. In this regard, the Constitutional Council very helpfully noted that "the proportion of proceedings submitted to the pre-trial continued to decrease and represents less than 3% of the judgments and orders on public action in correctional matters; that, subsequent to the law of 24 August 1993, the practice of treating said 'in real time' criminal proceedings was widespread; This practice leads to what the decision of the Crown on the public action is taken on the report of the judicial police officer until he put an end to the custody; that, if these new modalities of implementation of public action allowed a criminal response faster and more diversified in accordance with the objective of proper administration of justice, there is not less than that, even in procedures involving complex or particularly serious facts a person is now often judged on the basis of the only evidence gathered before the expiry of his detention , in particular on admissions that she was able to do during that period. custody is thus often become the main phase of constitution of the record of the proceeding to the judgment of the person in question' (26). Obviously, the necessary reform of the investigation is inseparable from a total redesign of the code of criminal procedure (CCP) (27) which will not make the economy in the following key issues: ― reform of the Statute of the public prosecutor;
― the judicialisation of criminal investigation;
― the redesign of the status of judicial police;
― the restriction of the exorbitant powers of common law of the judicial police;
― the modernization of the criminal investigation.
I. ― reform the status of the Crown 7. As a preliminary point, the CNCDH intends to recall that despite the entry into force of Act No. 2013-669 of 25 July 2013 relative to allocations in the custody of the seals and the magistrates of the public prosecutor's criminal policy and implementation of public action, the constitutional reform of the Prosecutor's office has not been brought to fruition whenever it considers several years it is necessary to provide specific guarantees regarding the appointment and status of members of the public prosecutor (28).
8. in recommendation (2000) 19, the Committee of Ministers of the Council of Europe issued wishes concerning the role of public prosecution in the criminal justice system (29). He distinguished different legal traditions, which have each of the characteristics. Some public departments are independent; others are submitted hierarchically to the Minister of justice; some receive individual statements, while others may receive; some part of the body of the judicial magistrates, others not (30). These different legal traditions can, if they are surrounded by sufficient guarantees, as protective of human rights being the ones than the others. Parquet hierarchically subject to the Minister of justice must be narrower than an independent Prosecutor prerogatives, while important rights will be granted to interested parties to the case (the suspect and the person expressing victim), especially in the initiation of prosecution. Conversely, an independent Prosecutor of the Ministry of justice requires that it be recognized a true clean power of coordination of its criminal policy.
9. the ambiguity of the status of the Crown is so far not thrown in law french (31), who does not choose between these different forms of legal traditions (32). The ambiguity is constitutional. The prosecutors are part of the judicial authority (33), and are, in this regard, independent (article 64 of the Constitution of 1958). Some read in the jurisprudence of the constitutional recognition of the constitutional character of the principle of unity of the body (34). The Constitutional Council also considered 'that under article 20 of the Constitution, the Government determines and led the nation's policy, particularly in the field of public action'; and that the principle according to which "the Minister of justice led the public action determined by Government policy. It ensures the coherence of its application in the territory of the Republic"not ignored"or the French conception of the separation of powers, nor the principle according to which the judicial authority includes both the judiciary and the public prosecutor, or any other principle or rule of constitutional value"(35).
10. However, if the Constitutional Council sees no contradiction between subordination of a parquet and the independence of justice, the European Court of human rights does not share this analysis. On the occasion of its mill judgment against France, confirming its Grand Chamber judgment Medvedyev against France (36), March 29, 2010, the Court held "that, because of their so called status, members of the public prosecutor, in France, do not meet the requirement of independence from the Executive, which, according to settled case-law, in the same way as the impartiality ", among the guarantees inherent in the autonomous notion of"magistrate"within the meaning of article 5 § 3" (37). It should be, at this stage of the reasoning, emphasized that the criticism made by the Court European rights of man in the mill decision are multiple, and not only focus on the lack of independence of the Crown towards the Executive and of the parties but also on the fact that it is a party prosecuting in the criminal trial. As she stated: "guarantees of independence from the Executive and the parties exclude such that it [the Crown] can thereafter act against the claimant in criminal proceedings (38).»
11. the CNCDH considers that, theoretically, two solutions can be envisaged (39). The separation of the judiciary in two separate bodies is one: on the one hand, the parquet, tiered, body submitted to the Minister of justice, who would abandon its independence; on the other hand, judges seat, fully independent. To be acceptable in terms of rights and freedoms, this hypothesis should be accompanied by an important evolution of criminal procedure French; It would be necessary to allow triggering of proceedings depends not exclusively parquet, particular with regard to the cases involving the probity of the elect, for which the constitution of civil party may seem more difficult to implement. Furthermore, it would be necessary to transfer certain powers of the Prosecutor's office to a judge, to strengthen the rights of defence, especially during the preliminary inquiry, and to increase the budget allocated to legal aid. The alternative is to recognize greater independence to the public prosecutor, for example by establishing, as sometimes suggested, an attorney general of the Nation (40). Such a reform will solve not all problems, including it would not meet the recommendations of both Medvedyev and mill (41) alone, because even independent, the public prosecutor could be regarded as impartial: there is indeed a Prosecutor and is part of a hierarchy to implement criminal policy. To comply with European human rights law, independence should, therefore, also be accompanied by a reduction of the powers of prosecutors regarding violations of human rights and fundamental freedoms. The independence of the Prosecutor's office seems at least prevail with regard to the progressive developments of French criminal procedure. Indeed, at the discretion of successive reforms, and in particular the enlargement of the powers of the Prosecutor's office during the preliminary investigation, its role has evolved (42), to gradually become that of a statement quasi-juridiction (43). Moreover, the appropriateness of prosecutions has become commonplace since prosecutions are more than one of the many terms of the prosecution response. While the criminal response rate was 83.5% in 2007, it should reach 90% in 2015 (44). This increase in the criminal response rate went through the establishment of a quasi judicial power of the public prosecutor; for nearly half of the offences (47% for major, 51% for minors), the criminal response is made by him, his alternatives to prosecution being exclusive jurisdiction. For the remaining cases, referral to derogations procedures such as the immediate appearance produced such consequences on the defendants that it can be considered as a sort of pre-judgment: indeed, it often induces the issuance of a warrant of committal against the person being prosecuted (45).
12. for the CNCDH, the right to an independent and impartial tribunal (art. 6 of the ECHR) implies that the head judge sees restored its true place in French criminal procedure, namely a central place compared to the Prosecutor's office which, by successive transfers of skills without parallel transfer of guarantees for the suspect became a "quasi-juge" (46). Gold Crown, as recalls the European Court of human rights, is also party Prosecutor to criminal trials insofar as it bears the charge and is implementing the criminal policy of the Government (47). Under these conditions, by its natural position in the procedure, it cannot be equated to an independent and impartial tribunal. Thats why the new article 31 of the PPC (48) must be exclusively understood as dedicating an ethical obligation has no procedural sense of impartiality (49), the Crown not being "a judge who slice" (50). This text, combined with articles 30 and 33 of the PPC (51) enshrining the principle of hierarchical subordination and submission to the Minister of justice, reflects the duality of the Crown which is serving both Act to the Executive (52). Because of this duality, the appearance of impartiality is not preserved. It is even more so similarly with regard to the appearance of independence. In this regard, taking into account the many prerogatives of parquet, it is necessary that new statutory guarantees him are recognised (53), implying a change in the status of the judiciary (54). CNCDH statement that this issue is the subject of the first proposals of the report Nadal (55) in relation to the only constitutional amendments, while being aware that the question of the independence of the Prosecutor's office does not solve everything. The obvious need for an overhaul of the system of procedure cannot even be done in haste; It requires a profound reflection and debate involving lawyers, professionals, elected representatives and civil society. The recent national debate on 'Justice' of the 21st century (56) is a positive first step in this direction which should be welcomed.
II. — Juridictionnaliser the criminal investigation 13. The CNCDH has already had the opportunity to stress the need for real and effective control of the operations of investigation by the judge, noting the practical disadvantages of reform at least in material: "isolated, with a heterogeneous, sought emergency and intermittently, litigation may have only a vision incomplete, fragmented and superficial folder and have, in practice only a limited access to the record of the proceedings. Judge investigated and freedoms will be thus forcing most often register acts of the Prosecutor's office' (57). Therefore, the CNCDH is favourable to the strengthening of the status of the current "judge of freedoms and detention" so as to establish a genuine "judge of freedoms" which would be a legal specialized function within the meaning of article 28-3 of the regulations governing the judiciary (58), exercised by a magistrate of the first rank appointed by Decree of the President of the Republic (59), with competence under the ordinary law on control of investigations and guarantee judicial rights and freedoms fundamental to all stages of the procedure. This proposal is organizing the following balance: the role of the Crown would be totally refocused on investigative (a.) functions, while the judge of freedoms would recognize jurisdictional powers strengthened guarantees of the rights and fundamental freedoms and control of the regularity of investigations (B.).
A. ― refocus the Crown on investigative functions 14. Following the proposed architecture, the Crown would have jurisdiction to direct and control the investigations carried out by the police or the gendarmerie. At this title, it could require that it be carried out any act of investigation which is not likely to be a disproportionate interference with the fundamental rights and freedoms such as disclosure of documents not covered by a secret provided for by law, the initial placement in custody (60), the transport scene, identifying statements, a line-up of suspects , the hearing of a witness, the samples at the scene of a crime, technical and scientific expertise (not involving a levy on a person or a body intrusion), audits, etc. In his role of Directorate of the judicial police, the public prosecutor could also order an end to an act of investigation initiated by a criminal.
15. on the other hand, for all acts a serious impairment of the fundamental rights and freedoms (extension of police custody; technical or scientific expertise involving a levy on a person or body intrusion; searches; levies on a person; seized goods, Geolocation measurement, etc.), the Crown would have the requirement to enter the judge of freedoms to to order the measure of inquiry.
16. the question arises whether this balance might not be disturbed that attributing the responsibility for the investigation to an institution which, even if it is composed of magistrates and placed under the supervision of a judge, is still somehow under the authority of the Executive power (61). In this regard, it must be remembered that article 30 of the CPP the garde des sceaux gives a role in criminal proceedings (62), what is questionable based on the principle of separation of powers. In the State, the law confers on the keeper of the seals mission "drive", i.e. define and coordinate criminal policy. For the CNCDH, this power shall have the effect of corseter appreciation of the Crown power, contrary to the principle of discretionary prosecution (63). This is why she recommends a minimum that the extent of the powers of the Minister of justice is clearly defined by the Act and that the terms "General instructions" contained in article 30 of the MPC are abandoned in favour of 'circular of general orientation' (64). He would return then to the Attorneys General and prosecutors to clarify, adapt and implement these guidelines taking into account the specific context of their spring, as rightly stated in article 39(1) of the CDPF.
17. on the other hand, it should be noted that article 30 of the CDPF, in its issue version of Act No. 2013-669 of 25 July 2013 prohibits individual statements. This prohibition is certainly beneficial, but it is doubtful whether its effective application in the absence of transfer to the Higher Council of the judiciary (CSM) of the powers of management of the career of the prosecutors currently entrusted to the Department of justice (65) and the maintenance of article 5 of the Statute of the judiciary. Indeed, three types of influences exerted by the Ministry of justice on the Crown in targeted cases must be distinguished: ― the written instructions. If they exist, they are rare and prohibited so far;
― oral instructions. They are more frequent, and can take various forms. It is feared that article 30 of the CPP does not allow to respond to such practices;
― in a number of situations, it is feared that the magistrate of the Prosecutor's office does not anticipate the wishes of the Ministry, which would not be to take home with him. The stranglehold of the keeper of the seals on the career of the prosecutors in particular may lead, or even to encourage such behaviour (66).
18. for the CNCDH, only a recognition of the independence of the public prosecutor and a strengthening of the powers of the CSM on the development of the career of magistrates (67) all, could fight effectively against such instructions (68). As a result, it highlights the risks to see individual statements persist as long as the independence of the public prosecutor is not fully guaranteed.
B. ― strengthen the powers of the judge in the control of investigations and the protection of individual freedoms 19. The CNCDH is very attached to the "principle of judicial warranty" based on article 66 of the Constitution of 1958, and articles 5 and 6 of the ECHR (69) requiring the intervention of a judge, as soon as the investigation phase, for all acts relating to the fundamental rights and freedoms (freedom to go and come, privacy, etc.) (70) in these circumstances, the judge of freedoms would have two main functions: 1. authorize and control measures that seriously infringes the rights and fundamental freedoms 20. In the course of this first function, the judge of freedoms would be responsible to authorize and control: ― with regard to the violations of the freedom to go and come: extension of custody, search terms, etc.;
― with regard to attacks on the private and family life as well as the privacy of the person: interception of correspondence issued through telecommunications, body searches, biological samples on a person, technical and scientific expertise involving a levy or a bodily intrusion, searches, Geolocation, conduct surveillance and infiltration, disclosure of documents protected by a secret provided for by law, communication of information contained in a computer system and protected by a secret provided for by law etc.;
― with regard to attacks on private property: seized goods or parts, searches and visits of vehicles, etc.;
― with regard to restrictions on the rights of the defence: postponement of full access to the folder, restrictions on full access to the folder, etc.
21. in addition, in order to guarantee the right to the remedy provided by article 13 of the ECHR, it would be desirable to submit the decisions of the "judge of freedoms" to a remedy accelerated type referral by the president of the Board of education, acting within a period of 48 hours.
2 check the regularity of the investigation process 22. Accordingly, the judge of freedoms including verify the legality of the initial placement in custody and that the use of the emergency procedure within a period of twenty-four hours. More generally, it would ensure regularity of the activity of investigation under the direction of the public prosecutor in: ― granting or refusing an extension of the legal time limit of inquiry;
― on the nullity of acts of procedure raised before him or raised ex officio;
― ruling on appeals against the refusal of the parquet to a measure of inquiry requested by the suspect or his counsel;
― Noting the inaction of the Crown or barriers to good walk from investigation, it could therefore enter the Board of education for the purposes of divestiture.
23. in this connection, it should be noted that, when the judge of freedoms adjudicates an application for Act or an extension of the period of inquiry, it proceeds primarily to a one-time review of their proportionate, in the same manner as an administrative judge controlling the manifest error of assessment. It does not directly pronounce on the desirability of a measure of investigation, as it has no mission is to lead and direct the investigations as an investigating judge or the public prosecutor at the stage of the investigation. Indeed, this new "judge of freedoms" is not intended to be conceived as a "judge of the investigation' similar to the «Ermittlungsrichter» (literally" judge investigations") German, who is entitled to proceed itself to acts of investigation particularly serious because of their scope (71).
III. ― make the judicial police to justice 24. Prevention of attacks on the independence of the judiciary requires prevent any pressures that might come from the Ministry of the Interior. Or if "judicial police is exercised, under the direction of the Procurator of the Republic, by the officers, officials and designated agents" (art. 12 of the CDPF), and if the activity of the judicial police officers and judicial police officers is 'controlled' by the Board of education, and supervised by the Attorney general, the officers, officials and agents are subject to the administrative authority of the Ministry of the Interior. This submission is also reinforced by the structure very hierarchical judicial police under originally only judicial police officers, acts of judicial police are now delegated to judicial police officers and Assistant officers of the judicial police. As a result, the reality of the direction and control of the judicial police is essentially equivalent to the Ministry of the Interior and the control exercised by the Prosecutor of the Republic and the Chamber of the statement is only very partial (72).
25. the problem is particularly important with regard to the management of human resources. One possible solution would be to make available police officers who are devoted exclusively to the judicial police; they should be managed jointly by the general prosecutor's office and the Board of education, to an adequate level, at the level of each court of appeal (73). Spring magistrates would have a "print right" thus affected workforce. At the national level, an internal joint commission, justice, chaired by a judge of the Court of cassation, would determine the number of police officers deployed to each spring and ensure the advancement of these officers and their right to be reintegrated into their original body. It would be appropriate for this Committee to ensure that these police and gendarmerie officers enjoy the same statutory and financial guarantees in their original job.
26. the CNCDH regrets the extreme shyness of the Nadal report on this item (74) and recommends that it be carried out in consultation with police unions and representatives of the mounted police for the purposes of determining the conditions under which a number of police officers could be put at the disposal of Chambers of the statement and the Attorneys General (75). In this way, the Prosecutor of the Republic should, as Director of the judicial police, play an essential role with the members of the security forces, for the purpose of enforcing both the rules of professional conduct as anxious behavior standards of individual freedoms.
IV. — restrict the exorbitant powers of common law of the judicial police 27. The powers of the judicial police have been considerably strengthened (76) in recent years, especially in the framework of emergency regimes relating to the 'bis criminal procedures' (organised crime, etc.) (77), to which the CNCDH is radically opposed (78). It now appears more as necessary to break permanently with the secure criminal policy pursued since then (79) and to think calmly about a better distribution of competences between the judicial police officers, prosecutors and the judge of freedoms so as to best ensure the principle of separation of powers (art. 16 of the DRMC).
28. to CNCDH, judicial police officers should have mandated to conduct investigations, under the control and direction of the public prosecutor, in being empowered to perform themselves all the investigation involving that infringement is minimized and proportionate to the fundamental rights and freedoms (80), namely: ― initial placement in custody;
― of a telephone call (81);
― reconstitution (82);
― controls and records of identity;
identifying statements ―;
― taken fingerprints;
― transport on the premises;
― line-up of suspects;
― hearing of witnesses;
― external samples;
― technical and scientific expertise (not involving a levy on a person or a body intrusion);
― communication of documents (other than those protected by a secret provided for by law);
― communication of data in one computer system (other than those protected by a secret provided for by law), etc.
29. in the event of a serious infringement of fundamental rights and freedoms, the strengthening of the power of intervention of the judge must not lead to impede or paralyse the action of the judicial police in situations where no delay completely compromise the effectiveness of the investigations should not be tolerated. For this reason, the CNCDH considers that the distinction between common law (of the type "preliminary inquiry") and a derogation system (du type 'investigation of flagrante') shall be maintained so as to enable the public prosecutor and, where appropriate, to the OPJ (under the direction and control of the public prosecutor) to carry out without delay acts of investigation usually authorized by the judge of freedoms.
30. the CNCDH offers a rewrite of article 53 of the PPC in order to define, extremely rigorously, the conditions for the use of such derogation investigation procedure. Rather than maintain the scent, which several criteria are now obsolete (for example, the notion of "person pursued by the hue and cry") and the excessive length (eight days, or even a new extension of eight days in some cases defined by the law), it appears more appropriate to devote the notion of urgency, as it had already been proposed by the commission criminal justice and human rights (83) : "The notion of urgency must therefore be taken in its strict sense: it has emergency only when the authority which should accomplish a measure has an insufficient time to resort to the common law procedure. '' Such a definition would have the advantage of clearly highlight the derogatory nature of the investigative process and do not prevent the control of the judge of freedoms that would rather not upstream or downstream within twenty-four hours. A posteriori control would thus replace a prior authorisation procedure.
31. regarding the criteria for the use of special investigative procedures, there is urgency, being specified that it must be motivated: ― when the life or physical integrity of a person is in danger.
― When clues are about to disappear and a measure of investigation (search, Geolocation, etc.) is, without delay, needed;
― When a crime or misdemeanour is committing to or about to be committed;
― When the supposed author of an offence may evade the police or gendarmerie services and that it is necessary to make an immediate arrest (84).
V. ― modernize criminal investigation 32. The investigation could involve two phases: an initial phase, non-adversarial, then a contradictory phase.
A. ― the 33 non-adversarial investigation phase. The opening of the original investigation would intervene on decision of the Crown, either on the initiative of the judicial police (office or as a result of a filing of complaint of a person expressing victim). During the initial phase, the investigations would be carried out by the police and gendarmerie under the direction of the Crown. The judge of freedoms would, for its part, to authorize and control the infringing acts to the rights and fundamental freedoms (see above). In an emergency, such acts could be carried out by the public prosecutor or judicial police before be controlled by the judge of freedoms within 24 hours (see more). So as not to compromise the exercise of the rights of the defence, the secret investigation phase should always meet the requirement of reasonable time. Also, could a legal duration of non-adversarial investigation be set at six months renewable by the judge of freedoms at the request of the Prosecutor of the Republic, being specified that the adversarial phase of the investigation must begin upon notification of suspicion (see below) (85).
B. ― the adversarial investigation phase 34. The French criminal proceedings must guarantee the adversarial nature of the investigations, as provided for in the preliminary article of the PPC (86). The Organization and the protection of the principle of audi alteram partem must be ensured by a judge's seat, and not fall under the sole responsibility of the public prosecutor. The implementation of this principle also requires the consecration of a status of the suspect and recognition to the latter's rights guaranteeing an effective defence and concrete.
1. devote the 35 suspect status. Today, one of the essential and persistent differences between the survey and the statement holds that, during the investigation, the person in question does not takes full advantage of the rights of the defence: it is not entitled to the assistance of a lawyer out of placement in custody, does not have access to the folder, cannot intervene in the course of the investigation to solicit such examination or challenge the lawfulness of an Act (87). There is therefore a real «asymmetry between investigation and instruction on human rights continued» (88), then even that article 6 of the ECHR is intended to apply to the entirety of the preparatory phase of the criminal proceedings (89).
36. This asymmetry is technically due to the fact that the Criminal Chamber decided that article 105 of the CDPF, forcing to open the rights of the defence to the person against whom are serious and concordant, evidence gathered does not apply to the investigation phase (90). This solution makes the rights of the defence are ' variable geometry', then even that article 6(3) of the ECHR requires opening the guarantee to any person on which weighs a suspicion (91). It is similarly to the provisions of the May 22, 2012 directive on the right to information in criminal proceedings (art. 2) and the October 22, 2013 directive on the right of access to a lawyer in the proceedings criminal (arts. 2 and 3), which will, during their transposition, to develop a true status of the suspect in the french criminal code (92).
37. in view of the foregoing, the CNCDH considers that European requirements order no longer condition the implementation of the rights of the defence to the mere existence of a coercive measure as do to this day the code of criminal procedure (93), the Court of cassation (94) and the Constitutional Council (95). It therefore supported the consecration of a status of a suspect (96). Under these conditions, the adversarial phase of the investigation would necessarily intervene upon notification of suspicion by a judicial police officer or by the public prosecutor in the event of existence of plausible reasons to presume that a person has committed or attempted to commit a crime or misdemeanour (97). The lateness of the notification of the suspicion, that annoying delay the exercise of the rights of the defence, so could be sanctioned by a textual nullity.
38. the consecration of the suspect status will involve a revolution in favour of the rights of the defence at the stage of the investigation in what the interviewee freely (see SS. 62, 73 and 78 of the CPP), but nevertheless suspected, must be notify all its rights, without exception (98). Thus framed, the free hearing will lose its much maligned specificity (99) in that it will be more a measure to hear a person suspected by depriving it of the guarantee of the rights recognized to the guarded view on the pretext that it is not retained against his will (100).
39. for the CNCDH, notification of suspicion should compulsorily be accompanied by notification to the suspect of all its rights, namely, regardless of any deprivation of liberty: ― right to be informed of the date and the place of the alleged acts and their qualification, within the meaning of the provisions of the directive may 22, 2012 on the right to information in criminal proceedings (101);
― right to be assisted by an interpreter if the suspect is of foreign nationality (102), as well as that follows from article 2 of the directive of October 20, 2010 on the right to interpretation and to translation in criminal proceedings;
― entitlement to be immediately assisted by counsel (see infra), PRN paid through legal aid.
right to silence and right not to incriminate oneself (art. 6 of the ECHR) (103);
― right to be assisted by a sign language interpreter.
40. in the case of deprivation of liberty, the suspect should also be notify: ― the right to be informed of the reasons for the deprivation of liberty (104) and its practical modalities (duration, extension, etc.);
― the right to access itself free to the documents in the file (see below) allowing control of the legality of the deprivation of liberty which it is subject (105).
― the right to prevent a close and his employer;
― the right to prevent, communicate and correspond with the consular authorities of the State of which he is national (106);
― the right to be examined by a doctor;
― the right to request that an end to a deprivation of liberty (when an extension thereof) or to challenge the legality.
41. pursuant to the provisions of the directive of May 22, 2012 on the right to information in criminal proceedings, suspects deprived of liberty must receive a statement of rights, understandably, "in order to help them capture that cover their rights" (art. 4 and Recital No. 22).
2. ensure any suspect on the concrete and effective defence rights
42 the CNCDH intends to insist on the fact that most of the criminal cases is so far in State, at the stage of the investigation, according to a bit contradictory procedure, in which human persons are reduced and represented defense dotted on the occasion of special measures as the custody (107). Yet as well as usefully stated the Constitutional Council, custody is in practice become the main phase of constitution of the record of the proceeding to the judgment of the person in question even for complex or particularly serious acts (108).
43. in those circumstances, it is imperative that the provisions of the code of criminal procedure concerning the criminal investigation meet the European minimum standards being specified that, according to the European Court, "the fairness of the procedure requires that the accused can obtain all the wide range of interventions that are specific to the Council. "In this regard, the discussion of the case, the defence organisation, research evidence favourable to the accused, the preparation of interrogation, the accused in distress support and control of the conditions of detention are fundamental elements of the defence counsel should freely exercise" (109). Thus, must the rights of the defence be fully guaranteed as the reason underlying the effective assistance of counsel at this procedural stage lies in guaranteeing the right to not contribute to self-incrimination (110).
44. for the CNCDH, so that is fully realized the balance of the rights of the parties, the suspect must, upon notification of suspicion, have immediate access to a lawyer, as points out the October 22, 2013 directive on the right of access to a lawyer in criminal proceedings (111). Counsel should immediately be able to exercise the fullness of its prerogatives (112), is mainly: — the possibility of a confidential consultation to custody (113) and its presence during the whole of this measure of restraint, including during interrogation or auditions, with possibility to take notes, ask to intervene and ask questions (114);
― active participation to completeness of the acts of investigation (searches, travel places, meetings of identification of suspects, hearings of witnesses, confrontations, expertise, etc.) (115) with the ability to take notes, ask to intervene and ask questions;
― full access to the investigation file (116), bearing in mind that the European Court considers that the possibility for the Defender to consult the pleadings involved law kept in view to the effective assistance of counsel, except to significantly hinder the opportunity given to him to advise his client (117);
― the ability to instruct prosecutors conducting further investigations (118) and seize the judge of freedoms in the event of refusal;
― the possibility of seeking the release of the suspect during the extension of police custody.
45. regarding the suspect who refuses (119) or is not able to be assisted by a lawyer, these last two prerogatives should also to be recognized under the same procedural conditions. On the other hand, it cannot be the same for full access to the folder (120), extremely controversial issue since the Criminal Chamber considered that the absence of communication of completeness of the documents in the dossier provided for in article 63-4-1 of the PPC is not inconsistent with the provisions of article 6(3) of the ECHR (121). Article 7(1) of the directive of 22 may 2012 concerning the right to information in the context of criminal proceedings provides that the suspect without a lawyer must be able to consult 'the documents relating to the case in question held by the competent authorities which are essential to challenge effectively, in accordance with national law the legality of the arrest or detention'. In this regard, it must be remembered that the file of persons remanded in custody included three kinds of minutes: those relating to the hearings of the suspect, those relating to investigation operations (searches, etc.) and those bearing on the conduct of the guard at sight, which trace in detail the implementation of various rights kept in view. The suspect who, unlike the lawyer, is not subject to any legal or ethical secret (122) obligation cannot, for obvious reasons of safety and efficiency of the survey (123), have direct access to the first two categories of minutes concerning the merits of the case, except, of course, its own hearings should sign. But it must be able to consult those in the third category which relate to the conduct of a custodial measure and which allow to control regularity (art. 64 of the CDPF) (124). This restriction is not likely to infringe the right to a fair trial (article 6 of the ECHR), whose requirements are the subject of the Court European of a 'comprehensive assessment' of all the trial in question (125), bearing in mind that the person being prosecuted has direct access to the entire folder during the phase of judgment (126) and that a bill under discussion extends this possibility to the stage of training (127). In addition, article 7(2) of directive on the right to information in criminal proceedings may 22, 2012 provides clearly that the suspect access to the folder must intervene at the latest 'when a court is called to pronounce on the merits of the charge. In these circumstances, so as to establish a balance between the guarantee of the rights of the suspect and the effectiveness of the criminal response, the CNCDH believes that the suspect must allow direct access to documents relating to the conduct of the measure of deprivation of liberty.
46. in view of the principle of effectiveness of investigations, temporary restrictions on one or more of these prerogatives could, at the request of the Prosecutor of the Republic, be authorized by the judge of freedoms for compelling reasons strictly defined by law. The notion of urgency mentioned above could provide a framework for such limitations. It is, moreover, very close to the provisions of article 3.6 of the directive of October 22, 2013 on the right of access to a lawyer in criminal proceedings which provide limited two compelling reasons to temporary restriction of this right (128). However, the CNCDH considers that any restriction to the effective assistance of counsel at the outset of the custody, and before the beginning of the interrogation, necessarily detract from the substance of the right to defence and cannot, therefore, be accepted. Accordingly, it wishes to the repeal of paragraphs 1, 3, 4, 5 and 6 of article 63-4-2 of the CPC, whose implementation, which can be designed in practice the point of confession, is likely to violate article 6 of the ECHR. The European Court had indeed the opportunity to clarify it 'is in principle brought an infringement of irremediable rights of defence where incriminating statements during an interrogation by police without possible assistance of a lawyer, are used to ground a conviction"(129). It is even more so than even with regard to article 706-88 of the CPP, which provides a deferral of the assistance of counsel at the end of the 48th hour (organized crime), or even of the 72nd hour (terrorism and drug trafficking) (130). That same article, which limits the free choice of counsel on terrorism poses problem with regard to article 6 of the ECHR, which proclaims the freedom of choice of the Defender (131). In this regard, CNCDH must recall that, according to her, more the offence is serious, more protection of the suspect presumed innocent is required and to reiterate its strong opposition to the continuation of such derogations (132), which is, moreover, the constitutionality moot (133).
3. enable the police to effectively conduct the adversarial investigation 47. On the one hand, the adversarial part of the survey should also be subject to the principle of expediency, either a legal duration of six months, renewable by the judge of freedoms on the request of the Prosecutor of the Republic. On the other hand, the CNCDH is well aware that the consecration of the status of the suspect is likely to lead to an overload of considerable work for the police and gendarmerie officers responsible for drafting the minutes and formatting procedures. In these circumstances, a reflection must be initiated in the direction of simplification and modernisation of the modalities of the constitution of the investigation files. Also, could it be considered to sound recordings of proceedings relating to simple cases (which may give rise to a closure or a third way), with possibility of written transcription upon request of the Prosecutor's office, the suspect or the person claiming victim.
(Adoption: 22 votes 'for', a voice "against", 9 abstentions.)
(1) the question of the regime applicable to minors suspected criminal investigation and the place offered to minors declaring themselves victims in this survey will be a specific opinion.
(2) Law No. 2011-392 of 14 April 2011 on custody. For an overview of this law, see C. Courtin (eds.), the reform of custody, L'Harmattan, Paris 2012; J. Leroy, the custody after the reform, Lexis Nexis, Paris 2011. J.B.. Perrier and Mr. Giacopelli (eds.), custody: practice, Dalloz, Paris 2013 reform.
(3) Act No. 2014-372, March 28, 2014 for geolocation, JORF of March 29, 2014.
(4) see p.. Michel, report No. 380 on the Bill transposing directive 2012/13/EU of the European Parliament and of the Council of May 22, 2012 on the right to information in criminal proceedings, Senate (Legal Committee), Paris 2014.
(5) see in particular C. Lazerges, the priority issue of constitutionality in criminal law: between boldness and prudence, RSC 2011, pp. 193 and s.; O. Bachelet and J.B.. Perrier, the requirements of reform, in: J.. Perrier and Mr. Giacopelli (eds.), the custody, op. cit., pp. 5 and s.; D. Roets and Véronique Tellier-Cayrol, Act, April 14, 2011, between the European Court of human rights and the Constitutional Council, gas. PAL. from 28 to 30 July 2013, p. 4 and s.
(6) on the reform of 2011 relating to custody, see in particular m.. Rassat, A back on the job. Shortcomings in the reform of the police custody, JCP ed. gen. May 30, 2011, p. 632 and s.; B. Rebstock, the evolution of custody, current problems of criminal sciences XXIV (2013), p. 28 and s.; H. Matsopoulou, unfinished reform. About the law of April 14, 2011, JCP ed. gen., 2011, p. 542.
(7) see Court of cassation (eds.), criminal procedure seeking consistency, Dalloz, Paris, 2007; S. Guinchard and J. Bush (eds.), the transformation of criminal justice, Dalloz, Paris 2014, forthcoming.
(8) CNCDH, April 15, 2010, opinion on the development of the legislation.
(9) for a recent presentation of the report Donnedieu de Vabres, see C. Lazerges, light report: analysis of the proposals. Introductory remarks, AJ criminal 2009, p. 385, and s.
(10) P. Couvrat, Donnedieu de Vabres project in parallel with the work of the commission "Criminal Justice and human rights", APC No. 13 (1991), p. 67.
(11) c. Lazerges, lightweight report..., op. ILC.
(12) Mr. Arnal, Donnedieu de Vabres report. The reforms it introduced, the criticism he raises, thesis, Paris, 1952.
(13) report of the Committee on criminal justice, Paris, September 2009. For a detailed presentation of the proposals of the report light, see V. Sizaire, what model for instruction, criminal AJ 2009, pp. 388 and s.; Mr. Robert, the proposals of the report light: perspective of a parquetier, criminal AJ 2009, pp. 393-s.; A. White, the criminal hearing and the light report on the reform of criminal procedure, penal 2009 AJ, p. 396 and s.; J.. Le Borgne, the report light, the weight of habit and fear of novelty, criminal AJ 2009, p. 400 and s.
(14) commission criminal justice and human rights, implementing State of criminal cases, La Documentation française, Paris, 1991.
(15) see C. Lazerges, of writing to the use of the preliminary section of the code of criminal procedure, mixes Ottenhof, Dalloz, Paris 2006, pp. 71 and s.; E. Putman, the preliminary section of the code of criminal procedure has a normative scope?, Annals of the Faculty of law of Avignon 2000, p. 43 and s.; P. Truche, Introduction to the preliminary article of the code of criminal procedure, APC No. 23 (2001), pp. 9 and s; H. Henrion, the preliminary section of the code of criminal procedure: towards a 'legislative theory' of the criminal trial?, APC No. 23 (2001), pp. 13 and s.
(16) see C. Lazerges, light report: analysis of the proposals, op. cit., p. 386.
(17) Act No. 2000-516 of 15 June 2000 has undeniably strengthened audi alteram partem and the rights of the defence during the preparatory instruction. For more detail on this point, see in particular H. Henrion, the Act of 15 June 2000 insures the necessary balance between the rights and duties of the State, of the person questioned and the victim?, APC No. 24 (2002), p. 81, s.
(18) see in particular j.. Renucci, the custody and the requirements European, in: C. Courtin (ed.), op. cit., p. 35 and s.; D. Roets and V. Tellier-Cayrol, op. cit., p. 4 and s.
(19) see G. Giudicelli-Delage and C. Lazerges (eds.), the criminal law of the European Union in the wake of the Lisbon Treaty, society of comparative legislation, Paris 2012; S. Manacorda, criminal law under Lisbon: towards a better balance between freedom, security and justice?, RSC 2010, p. 945 and s.
(20) Council of the Union European, roadmap for strengthening procedural rights of suspects or persons prosecuted in criminal proceedings, Brussels, November 24, 2009, 15434-09 DROIPEN 149 COPEN 220.
(21) translation and interpretation of the pleadings; information about rights and the prosecution; assistance of a legal adviser and legal aid; communication with relatives, employers and consular authorities; specific guarantees of suspects or accused persons vulnerable; guarantees regarding pre-trial detention.
(22) Council of the European Union, December 2, 2009, the program's Stockholm — an open and secure Europe which serves and protects citizens, 17024-09.
(23) Council directive 2010/64 / EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and to translation in criminal proceedings; Directive 2012/13/EU of the European Parliament and of the Council of May 22, 2012 on the right to information in criminal proceedings; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and proceedings relating to the European arrest warrant, to the right to inform a third party upon the deprivation of liberty and the right of persons deprived of their freedom to communicate with third parties and with the consular authorities.
(24) articles 47 et seq. of the Charter of fundamental rights of the EU.
(25) see ECJ December 21, 2011, N.S. & others, no C-411/10, recalling the States they should interpret their national law in a manner consistent not only in derived law, but also the fundamental rights protected by the legal system of the EU and the other general principles of the law of the EU.
(26) cons. const. July 30, 2010, Daniel W. & others, no. 14/22 QPC.
(27) in the same sense, see commission on modernization of public action under the chairmanship of Jean-Louis Nadal, honorary public prosecutor at the Court of cassation, refounding the public Department, Paris, November 2013, p. 80.
(28) CNCDH March 27, 2003, opinion on the draft law adapting the means of justice to developments in crime; CNCDH June 10, 2010, opinion on the reform of criminal procedure; CNCDH June 27, 2013, opinion on the independence of the judiciary.
(29) Council of Europe, October 6, 2000, recommendation (2000) 19 of the Committee of Ministers to Member States on the role of public prosecution in the criminal justice system. An approach to comparative law, see also M. Delmas-Marty (eds.), proceedings criminal Europe, PUF, Paris 1995, pp. 352 and s.; P.. Jean, the french Crown in Europe, the justice, no. 4 (2009), p. 61 and s.
(30) in Germany, for example, members of the Crown are not judges and therefore not part of the judicial power within the meaning of article 92 of the basic law. They are not attached to the Executive power, even if they are answerable. They form an "autonomous organ of the administration of justice" ("ein UM Organ der Rechtspflege'). For more details, see J. Leblois-Happe, Elements of consistency of German criminal procedure. The balance between the prerogatives of the Crown and those of the judge in the preliminary phase of the trial, Court of cassation, April 27, 2006 conference.
(31) comp. A. Garapon S. Perdriolle B. Bernabé, La caution, and the authority. Judges and prosecutors in the 21st century, O. Jacob, Paris 2014, p. 233: "the Prosecutor sets easier negatively that positively: it is a judge who is not a third party (...)". but who is not a party; It is responsible for the criminal policy which is stopped by the garde des sceaux (...) Although it should adapt it within its jurisdiction. » (32) see C. Lazerges (eds.), Figures of the parquet, PUF, coll. The ways of the law, Paris 2006; P.. Jean, the Crown between model jacobin and model European, RSC 2005, p. 670 and s.
(33) see, for example, Cons. const. August 11, 1993, no. 93 - 326 DC.
(34) g. Canivet, judicial justice in the jurisprudence of the Constitutional Council, Cahiers of the Constitutional Council, no. 16, June 2004, p. 20. See also: Cons. const. 21 February 1992, no. 92 - 305 DC; Cons. const. January 27, 1994, no. 93 - 336 DC.
(35) cons. const. March 2, 2004, no. 2004 - 492 DC.
(36) Court HRE Medvedyev v. France, req, March 29, 2010. No. 3394/03. See also r. drops the Crown seen by the European Court of human rights, the notebooks of justice no. 4 (2009), p. 51 and s.
(37) Court HRE 23 nov. 2010, moulin c. France, req. No 37104/06, Rec. Dalloz 2011, p. 338, note J. Pradel; RSC 2011. 208, obs. D. Roets.
(38) Court HRE March 29, 2010, Medvedyev v. France, op. cit., § 124; Court HRE November 23, 2010, Moulin c. France, op. cit., § 58.
(39) see CNCDH June 27, 2013, opinion on the independence of justice, JORF n ° 176, July 31, 2013, text no. 102.
(40) as it exists in Argentina and Colombia. He has attempted to create such an institution in France (see, for example, the proposal of Constitutional Act No. 3930 recorded to the Presidency of the National Assembly on November 10, 2011, introducing the function of attorney general of the Nation).
(41) Court HRE March 29, 2010, Medvedyev v. France, op. ILC. ; Court HRE November 23, 2010, Moulin c. France, op. ILC.
(42) see, inter alia, Y. Bot, Revolution of the prerogatives of the Crown, mixtures Léger, Pedone, Paris, 2006, p. 25 and s. A sociological analysis of the evolution of the profession of Attorney, see D. Salas and P. Milburn, the prosecutors of the Republic. Of personal jurisdiction on the collective identity, research mission of right and justice, Paris 2007. P. Milburn, what identity for prosecutors of the Republic?, cahiers justice no. 4 (2009), p. 13, and s.
(43) see V. Lesclous, the Prosecutor: the mechanic of the criminal prosecution to the architect of social therapy, a Republican judicial function, Dr. Penal 2013 (No. 6), study No. 13.
(44) PLF for 2013, annual performance project justice.
(45) for an empirical study on the impact of the orientation of the procedures, see J. Danet (eds.), the prosecution response. Ten years of treatment of crimes, PUR, Rennes 2013.
(46) see C. Lazerges, the drift of the criminal procedure, RSC 2003, p. 644. For a similar finding in German law, see E. Kausch, Der Staatsanwalt. Ein Richter vor dem Richter? Untersuchungen zu (§ 153) a StPO, Berlin 1980.
(47) as a holder of public action, the Crown is the "institutional result of support by the State for the exercise of criminal proceedings" (see M. Delmas-Marty [eds.], Criminal Procedures in Europe, op. cit., p. 352).
(48) article 31 of the coming MPC of Act No. 2013-669 of 25 July 2013: "the Crown exercising public action and requires the application of the Act in respect for the principle of impartiality which it is required."
(49) in this sense E. Bonis-boy and O. Decima, Grace and disgrace of the hierarchical instructions. About Act of July 25, 2013 on the duties of the custody of the seals and the magistrates of the public prosecutor in criminal policy and development implementation of public action, JCP 2013, p. 955; E. yards, criminal policy and public action: the difficult reconciliation of the french model of Crown and standard European, RSC 2013, p. 605.
(50) as "judicial authority" or "magistrate" within the meaning of articles 5-1 and 5-3 of the ECHR is denied by European jurisprudence to the french public prosecutor (see F. Sudre, European and international law of the rights of man, 11th ed., PUF, Paris 2011, no. 226, p. 374 and s.).
(51) article 30 of the MPC: "the Minister of justice led the criminal policy determined by the Government. It ensures the coherence of its application in the territory of the Republic. To this end, it addresses to the magistrates of the public Ministry of the General instructions. It can give them no instruction in individual cases... ». Section 33 of the MPC: "it (the Crown) is required to take written requisitions in accordance with instructions given to him in accordance with articles 36, 37 and 44.» It freely develops the oral observations that he believes suitable for the good of justice. » (52) in this sense E. yards, op. ILC. For a historical approach of this duality of the Crown, see m.. Rassat, the Crown between its past and its future, LGDJ, Paris 1967.
(53) CNCDH June 27, 2013, opinion on the independence of the judiciary, op. ILC.
(54) article 5 of Ordinance No. 58 - 1270 of 22 December 1958 on the organic law relating to the status of the judiciary: "the prosecutors are placed under the direction and control of their hierarchical leaders and under the authority of the keeper of the seals, Minister of justice. At the hearing, their speech is free. » (55) commission on modernization of public action, op. cit., p. 8 and s.
(56) Department of justice, the justice of the 21st century. The citizen at the heart of the public service of justice. Acts of the national debate. 10-11 January 2014, home of UNESCO, Paris 2014, p. 423, and s.
(57) CNCDH June 10, 2010, opinion on the reform of criminal procedure.
(58) article 28-3 the status of the judiciary: "judge statement, judge of children and judge the application of sentences of a high court or trial and those of judge of a Court of major jurisdiction responsible for the service of a court are exercised by a judge of this Court High Court or trial designated for this purpose in the forms provided for in article 28 (...) No person shall exercise over ten years the function of investigating judge, children judge, judge of the application of sentences or judge in the service of a court in a same high court or trial court. At the end of this period, if it has not received another assignment, the magistrate shall be relieved of this function by Decree of the President of the Republic and served as magistrate of the seat to which he was originally named in the tribunal de grande instance, or trial. Similarly in the case where, before this term, it is discharged this function at his request or pursuant to article 45. » (59) article 28, paragraph 2, of the status of the judiciary: "bearing orders promotion of rank or appointment of magistrate (...) are taken by the President of the Republic on the proposal of the keeper of the seals, Minister of justice, after obtaining the assent of training competent of the Higher Council of the judiciary with regard to magistrates of sits and after opinion of the competent Council training higher for what concerns the prosecutors.". » (60) see in particular Comm. HRE September 5, 1988, Subramanian v. France, req. No 112256/84, who believed that the presentation to a judge three days after deprivation of liberty is to reconcile with the provisions of article 5-3 of the ECHR; Court HRE Varga v. Romania, req, April 1, 2008. No. 73957/01, which reports that a deadline for presentation to a judge for three days after the deprivation of liberty is not likely to violate article 5-3 of the ECHR.
(61) see on this issue P. Cassia, conflict of interest. Links dangerous of the Republic, Odile Jacob, Paris 2014, p. 75 and s.
(62) article 30 of the MPC: "the Minister of justice led the criminal policy determined by the Government. It ensures the coherence of its application in the territory of the Republic. To this end, it addresses to the magistrates of the public Ministry of the General instructions. It cannot give them any instructions in individual cases. Every year, it publishes a report on the implementation of the criminal policy determined by the Government, stating the conditions for implementation of this policy and the General instructions in accordance with the second subparagraph. This report is forwarded to the Parliament. It can give rise to a debate in the National Assembly and the Senate. » (63) CNCDH June 27, 2013, opinion on the independence of the judiciary.
(66) see P. Cassia, op. CIT, pp. 75-76, which evokes the practice reports established by General floors destined for the garde des sceaux of sensitive cases.
(67) it indeed remember that, even for most of the judges, exclusive appointments initiative belongs to the Chancellery and that advancement obtained as a magistrate of the Prosecutor's office will be retained in the case of passage at Headquarters.
(68) CNCDH June 27, 2013, opinion on the independence of the judiciary.
(69) article 5 of the ECHR specifically concerns the deprivation of liberty, while article 6 of the ECHR applies generally to all the rights and freedoms guaranteed by the convention and the protocols, as well as those identified by the Court from the autonomous notion of "rights and obligations in civil law" within the meaning of paragraph 1.
(70) commission criminal justice and human rights, op. cit., p. 115.
(71) as an example, he returned to the inquiry judge to conduct the hearing under oath of witnesses and experts (§ 161 StPO).
(72) see C. Mouhanna, the actual limits of the power of a parquet on the police, AJ criminal 2013, pp. 388 and s. Comp v. Miansoni, the public prosecutor directs the judicial police?, criminal AJ 2013, p. 374 and s.
(73) in this sense P. Lyon-Caen, making the judicial police justice, Symposium of law and democracy in October 22, 2013, available on: www.droit-et-democratie.org. See also G. Roussel, the incorporation of services of judicial police at the Ministry of justice, AJ criminal 2013, p. 378-s. Contra Union of the Commissioners of the national police, judiciary-justice: complementarity does not require integration, criminal AJ 2013, p. 381-s.
(74) commission on modernization of public action, op. cit., p. 70 and s.
(75) CNCDH, June 27, 2013, opinion on the independence of the judiciary.
(76) see F. Desportes and L. Leke-Jinn, Treaty of criminal procedure, Economica, Paris 2013, no. 45, pp. 28 and 29. For a presentation of very coercive powers of the judicial police investigative blatant, see B. Bouloc, Criminal Procedure, 24th ed., Dalloz, Paris 2014 No. 466 s., p. 407, and s.
(77) see on this subject, C. Lazerges, the derivative of the criminal procedure, op. cit., p. 644 and s. see also M. Touillier, the evolution of the special procedures and exemptions, in: current problems of criminal sciences XXIV (2013), p. 46 and s.
(78) CNCDH, January 6, 2011, opinion on the draft law on custody.
(79) CNCDH, 27 March 2014, opinion on the draft law on the prevention of recidivism and the individualization of sentences.
(80) f. Desportes and L. Leke-Jinn, criminal procedure, op. cit., no. 1599, p. 1053.
(81) in this sense Cass. Crim. April 2, 1997, Bull No. 131.
(82) in this sense Cass. Crim. February 26, 2003, Bull No. 56, Dalloz  ECR, somm., p. 1727, obs. J. Pradel.
(83) see commission criminal justice and human rights, op. fact sheet No. 5.
(85) comp. commission on modernization of public action, op. cit., p. 82, which merely propose to introduce an adversarial at the end of long investigations.
(86) the PPC preliminary article: "i. ― the criminal proceedings must be fair and adversarial and preserve the balance of rights of the parties."
(87) f. Desportes and L. Leke-Jinn, criminal procedure, op. cit., no. 48, p. 31.
(89) see in this respect court HRE, 24 November 1993, imbrioscia v. v. Switzerland, req. No. 13972/88.
(90) Cass. CRIM, July 27, 1964, Bull No. 252; Cass. Crim. August 20, 1986, Bull No. 247.
(91) in this sense see F. Desportes and L. Leke-Jinn, criminal procedure, op. cit., no. 48, pp. 31-32; J. Bush and S. Guinchard, Criminal Procedure, 9th ed., Lexis Nexis, Paris 2013, no. 502 b, p. 543. See also Court HRE November 15, 2012, Grimenko v. Ukraine, req. No 33627/06, § 91.
(92) s. Cimamonti and J.B.. Perrier, European Perspectives. The future of criminal justice and the European Union, in: current problems of criminal sciences XXIV (2013), p. 160.
(93) see in particular article 63-1 of the PPC.
(94) see Cass. Crim. April 3, 2013, no. 11 - 87.333, who considers on the basis of article 6-3 of the ECHR only ' notification of the right to remain silent and not to accuse is recognized only to persons in custody or subject to a customs detention measure.
(95) see, inter alia, Cons. const. 18 June 2012, Ste Olano Carla No. 2012-257 QPC, JORF of 19 June 2012, p. 10181.
(96) in this sense J. Alix, the rights of the defence during the police investigation after the reform of police custody: State of play and perspectives, Rec. Dalloz 2011, p. 1699 and s.; E. Mathias, for an act of... free suspects (about the draft law on custody), Dr. Criminal No. 4 April 2011, study No. 6.
(97) in this sense CNCDH January 6, 2011, opinion on the Bill relating to custody.
(98) comp. p.. Michel, report, op. cit., pp. 17-s., 29 and s., which proposes the creation of a special status of the "free suspect" in the context of the transposition of the 2012/13/EU directive on the right to information in criminal proceedings. This "free suspect" would notify certain rights only (the qualification information, of the date and place suspected of the offence, right to leave the premises where it is understood; right to be assisted by an interpreter at any time; right to make a statement, to respond to questions or to shut up; right to be assisted by a lawyer if the offence is a felony or a misdemeanour; right of free advice in an access structure to the) right).
(99) see X. Salvat, hearing of a person heard in preliminary investigation without being placed in custody, RSC 2013, p. 842; D. the Drevo, free hearing... the poor relative of the rights of the defence, Dalloz News April 29, 2013.
(100) S. Cimamonti and J.B.. Perrier, op. cit., pp. 158-159.
(101) article 6.3 and Recital No. 28 of directive on the right to information in criminal proceedings may 22, 2012.
(102) on this point, the transposition of the directive of October 20, 2010 on the right to interpretation and to translation in criminal proceedings has not been fully achieved (see on this point p.. Michel, report, op. cit., p. 21 and 22).
(103) see J. Bush and S. Guinchard, Criminal Procedure, op. cit., no. 489, pp. 520 and s.; R. Koering-Joulin, right to remain silent and not to incriminate oneself, RSC 1997, p. 476, and s.
(104) article 6(2) of the directive of May 22, 2012 on the right to information in criminal proceedings.
(105) article 7(1) of the directive of 22 may 2012 concerning the right to information in criminal proceedings: 'Member States shall ensure that documents relating to the case in question held by the competent authorities which are essential to challenge effectively according to national law the legality of the arrest or detention are made available to the arrested person or his lawyer.'
(106) article 7 of the directive of October 22, 2013 on the right of access to a lawyer in criminal proceedings: "1. Member States shall ensure that suspects (...)". are not part of their nationals and who are deprived of their liberty have the right, if they so wish, to inform their deprivation of liberty, without undue delay, the consular authorities of the State of which they are nationals, and to communicate with the authorities (...) 2 suspects (...) also have the right to receive visits from their consular authorities, the right to speak and to correspond with them and the right to the organization by them of their legal representation, subject to the agreement of those authorities and the wishes of suspects or accused persons. "(107) in this sense J. Leblois-Happe, May 22, 2012 guideline 2012/13/EU the right to information in criminal proceedings, mixes Fournier, Nancy 2013, p. 256.
(108) cons. const. July 30, 2010, Daniel W. & others, no. 14/22 QPC.
(109) Court HRE Dayanan v. Turkey, req, October 13, 2009. No 7377/03, § 32.
(110) in this sense Court HRE, November 27, 2008, Salduz v. Turkey, req. No 36391/02, § 25. Conf. Court HRE Yoldas v. Turkey, req, February 23, 2010. No 27503/04; Court HRE January 17, 2012, Fidanci v. Turkey, req. No 17730/07; Court HRE December 21, 2012, Hovanesian v. Bulgaria, req. No 31814/03.
(111) article 3.2: "suspects (...)". have access to a lawyer without undue delay.
(112) see already Commission criminal justice and human rights, op. Plug No. 6.
(113) section 3.2 a of directive on the right of access to a lawyer in criminal proceedings which provides that in any case suspects have access to a lawyer «until they are interrogated by the police or other law enforcement or judicial authority» October 22, 2013. Article 3.3 a. precise that the 'Member States shall ensure that suspects (...) ". have the right to meet privately with counsel who represent them and communicate with him, including before they are interrogated by the police or other administrative or judicial authority".
(114) CNCDH January 6, 2011, opinion on the draft law on custody.
(115) in this sense see section 3.3 c of directive of October 22, 2013, on the right of access to a lawyer in criminal proceedings: "Member States shall ensure that the suspects or accused persons have right at least in the presence of their lawyer during the investigative measures or measures for gathering evidence following." (when these measures are laid down in national law and if the suspect or the accused person is required to attend or allowed to attend: i) sessions for the identification of suspects.
(iii) reconstruction of the scene of a crime.
(116) CNCDH, June 10, 2010, opinion on the reform of criminal procedure; CNCDH January 6, 2011, opinion on the draft law on custody. On this point, the CNCDH goes beyond secondary EU legislation since May 22, 2012 directive on the right of access to information in criminal proceedings cannot be interpreted as allowing counsel access to the whole file (see F. Fourment, 2012/13UE directive of May 22, 2012 'right of access to information', and the proposed directive 'right of access to a lawyer' Gas. PAL. from 28 to 30 July 2013, p. 14).
(117) Court HRE September 20, 2011, Sapan v. Turkey, req. No 17252/09.
(118) in this sense CNCDH June 10, 2010, opinion on the reform of criminal procedure.
(119) article 9 of the 22 October 2013 directive on the right of access to a lawyer in criminal proceedings frames the waiver which must be "formulated voluntarily and unequivocally" after issuance to the suspect, orally or in writing, clear, comprehensible and sufficient information about the consequences of the said waiver. It is revocable and the circumstances in which it was formulated shall be recorded.
(120) see in particular J. Pradel, the right to counsel to access the folder established during a custody, JCP ed. gen. 2012, doctr., p. 1223 and s.
(121) Cass. Crim. September 19, 2012, JCP ed. gen. 2012, p. 1242, footnote f foo; ECR 2012 Dalloz, pp. 2640 note Desprez; Cass. Crim. No. 12 - 87.130 Bull No. 217, 6 November 2013.
(122) pursuant to article 11 of the CPP: 'except in cases where the law provides otherwise and without prejudice to the rights of the defence, the procedure during the investigation and instruction is secret. Anyone who contributes to this procedure was held to professional secrecy under the conditions and under the penalties of articles 226-13 and 226-14 of the penal code. "The suspect, not contributing to the procedure, is not subject to this requirement.
(123) it is particularly not to put witnesses in danger or avoid joint authors of the offence are aware.
(124) article 64 of the CPP: ' i. ― the judicial police officer establishes a report mentioning: 1 ° the reasons justifying the placement in custody, in accordance with the 1 ° to 6 ° of article 62-2;
2 ° the duration of the hearings of the person kept in view and the rest who have separated these hearings, the hours she was able to eat, day and time from which it has been kept in view, as well as the day and the time from which she was to be freed, be brought before the competent magistrate;
3 ° where appropriate, the hearings of the person held in police custody made in other proceedings for the duration of police custody;
4 ° the information given and the applications made pursuant to articles 63 - 2-63-3-1 and suites that have been given to them;
5 ° if conducted a full search or internal bodily investigations.
These particulars shall be specially initialled by the person held in police custody. In case of refusal, it is actually mention.
II. ― signatures and records under the 2 ° and 5 ° of I concerning the dates and times of the beginning and end of custody and the duration of hearings and rest periods separating these hearings as well as resorting to complete excavations or internal bodily investigations are also in a special register kept for the purpose in all local police or gendarmerie may receive a person held in police custody. This register can be held in dematerialized form.
In the body or services where the judicial police officers are obliged to keep a notebook of declarations, particulars and signatures under the first paragraph of this II are also worn on this book. Only the details are reproduced in the report which is transmitted to the judicial authority. » (125) L.. Mido, E. Decaux and p.-h. Imbert (eds.), the European Convention on human rights. Comment article by article, 2nd ed., Economica, Paris 1999, p. 264.
(126) see articles 279, 280 and R. 155 of the PPC.
(127) see article 5 of the draft law transposing directive 2012/13/EU of the European Parliament and of the Council of May 22, 2012 on the right to information in criminal proceedings. For more details, see j.-p.. Michel, report, op. cit., p. 23 and s., 95 and 96.
(128) article 3.6: "in exceptional circumstances and with the phase prior to criminal proceedings only, Member States may derogate temporarily to the implementation of the rights provided for in paragraph 3 to the extent that this is justified, taking into account the particular circumstances of the case, on the basis of one of the following compelling reasons: a. where there is an urgent necessity to prevent a serious privacy violation. the freedom or the physical integrity of a person;
b. when it is imperative that the authorities engaged in the investigation act immediately to avoid seriously compromising a criminal procedure. » (129) Court HRE, November 27, 2008, Salduz v. Turkey, op. ILC.
(130) in case John Murray v. United Kingdom, which was a case of terrorism, the Court stated that deny access to a lawyer during the first 48 hours of police questioning was incompatible with article 6 of the ECHR rights to the accused and that 'whatever the justification' (ECTHR, 8 February 1996, John Murray v. United Kingdom) req. n ° 18731/91, § 59 and s.).
(131) J. Leroy, custody after reform, Lexis Nexis, Paris 2011, no. 164, p. 85.
(132) see already CNCDH, January 6, 2011, opinion on the draft law on custody.
(133) P. Cassia, the special custody are no longer consistent with the Constitution, Rec. Dalloz 2010, p. 1949 and s.