French Criminal Law

Criminal law in France is one of the branches of the juridical system of the French Republic. The field of criminal law is defined as a sector of French law, and is a combination of public and private law, insofar as it punishes private behavior on behalf of society as a whole. Its function is to define, categorize, prevent, and punish criminal offenses committed by a person, whether a natural person () or a In this sense it is of a punitive nature, as opposed to which settles disputes between individuals.

These offenses are divided into three categories, according to increasing severity: and ''crimes''. The latter two categories are determined by the legislature, while contraventions are the responsibility of the executive branch. This tripartite division is matched by the courts responsible for enforcing criminal law: the police tribunal for infractions; the '' tribunal correctionnel'' for ; the cour d'assises for . Criminal law is carried out within the rules of which set the conditions under which and are carried out.

Like the legal systems of other liberal democracies, French criminal law is based on three guiding principles: the , culpability, and . It has been influenced by various legal, ethical, and scientific philosophical movements over the centuries. While most of these influences are national in origin, European courts (such as the Court of Justice of the European Union and the European Court of Human Rights) have also influenced French criminal law. French criminal law was first codified during the French Revolution, resulting in the French Penal Code of 1791. Under the First Empire, Napoleon enacted the Penal Code of 1810, replaced by the current code in March 1994.

The and his staff are responsible for the pursuit of legal proceedings and criminal prosecution, in collaboration with the police. To determine the offense, the judge must have a preexisting legal basis (), a and a The offense can only be charged if the perpetrator is mentally competent, and has consented to the commission of a criminal act (as perpetrator or accomplice) of their own free will. If the offense is attributed to a perpetrator, they are liable to , which may be aggravated or mitigated according to the circumstances. The judicial authority pronounces a sentence according to the severity of the acts: imprisonment or detention, fine, , , day-fine, and so on. The convicted person may appeal the decision to the court of appeal, and, ultimately, to the Court of Cassation.

Background

The two branches of French law are criminal law and civil law. The main function of criminal law is punishment for infractions, while the main function of civil law is compensation for damages. The main differences are that criminal law seeks to punish or penalize when an infraction against existing law is committed, and is "vertical" in the sense that it comes from the government down towards an individual or legal entity; whereas civil law establishes a horizontal framework among members of society, and seeks to facilitate reparation of damages caused by one member of society towards another.

Civil and criminal law come together in certain cases, such as civil procedures which involve a criminal aspect. Although the goal of civil law is to compensate a victim via the awarding of damages, damages can have occurred during the commission of a criminal offense. Article 2 of the French penal code addresses this situation, and offers victims the option of suing for damages via a civil action in the criminal courts.

The two branches, civil and criminal, are mirrored in the types of actions a person or official may take in an attempt to right wrongs, namely civil action () in the case of civil law, and public action () in the case of criminal law. In a civil matter, someone who feels they are a victim of another member of society may identify themselves as a victim to judicial authorities, and seek compensation from the perpetrator.
A criminal matter is dealt with by a public action () to punish the perpetrator. In particular, it is up to the public prosecutor to initiate this action on behalf of the public, and to seek punishment for the accused, rather than reparations.

History

The Republic of France has had three penal codes: the code of 1791, the code of 1810, and the code of 1994, still in effect as of 2022.

Precursors

The origins of criminal law go back to family justice, retribution for perceived offenses, and revenge. Private revenge was originally a way of maintaining a rough sort of social order among clans, with fear of revenge the deterrent factor. This created a certain respect for strangers and other clans, and when a settling of accounts was necessary, this could take place not only against a presumed perpetrator, but also against their family, the clan chief, or top clan members, so that criminal liability was originally collective and not individual.

With the Fall of the Roman Empire officials in charge of police disappeared. With the rise of feudalism in France, policing powers were dispersed among a multitude of ''seigneurs''. Lords of their fiefs, they were all-powerful, including that of justice among the peasants they controlled.

Maréchaussée

French criminal justice goes back to the Maréchaussée in the Middle Ages.
From that time, and to a lesser extent until the end of the Ancien Régime, the functions of the police and the justice system were closely intertwined.
Kings, lords and high dignitaries rendered justice. In that sense, justice in the armies was part of the remit of the Grand Constable of France, who succeeded the Seneschal in 1191 as head of the armies, and of the Marshals of France, who were his lieutenants. The Grand Constable and the marshals delegated their powers to their provosts.

These jurisdictions merged under Francis I under the name of the , with its seat in Paris.
The provosts also rendered justice to the armies in . The enforcement bodies were the company of the Constabulary and the companies of the Maréchaussée. The originally roamed the countryside catching and sentencing evildoers from among the military, and after 1536, among the civilian population as well. They also had the power to sentence perpetrators they had caught. There was no central organization, but they adopted the collective name ("marshalcy") because the detachments were assigned to army marshals.

The Constabulary was eliminated in 1626 by Louis XIII and the Constabulary and Marshalcy Tribunal was placed under the command of the Marshal of France. According to the Criminal Ordinance of 1670, certain crimes identified as "royal cases" were investigated by the but judged by a chamber of the Parliament dealing with criminal matters, while the others, identified as "provost cases" (), were judged by the

A series of reforms in the 18th century were instituted to make the more effective, reinforce its military character, and improve coverage in the countryside. The edict of 1720 accentuated its territorial nature and created a hierarchy under a provost court and a detachment in each of the thirty-six governments or provinces, with a provost at the head of each one in the provincial capital. The provostships () were divided into lieutenancies with a lieutenant in each city heading up a presidial court. By 1778, on the eve of the Revolution, there was a corps of 4,000 men in the , which developed into the first national police force in France.

Late ancien regime

Criminal law in the 16th to 18th centuries was fairly static, and had a basis in the growing awareness of Roman law during the Renaissance. Rulings generally followed the Roman Digest, except when local customs or written tracts clearly dealt with a speficic situation. Although French criminal lawyers were inspired by the Romans to write treatises on the law, the content was based more on local or feudal custom.

Criminal law was also influenced by Christianity, and by canon law. Ecclesiastical courts played an important role in the Middle Ages, and trials were held on any subject which the Church felt touched their domain (heresy, witchcraft, adultery, etc.), and cooperated with non-Church authorities in handing over the most serious offenders. The most original aspect of Church law was in the influence of sin and penitence; punishment was based in retribution. Where revenge was more about hurting individuals or groups based on a grievance, retribution was a sanction based on the moral responsibility of the offender, intended to expiate the wrong, and in proportion to the seriousness of the offense.

French Revolution

One of the signal events of the French Revolution was the declaration by the National Constituent Assembly on 4 August 1789 abolishing the feudal system in France. In November, this included suspension of the judicial system of the Ancien regime and its 13 regional parlements, followed by abolition in 1790.

Code of 1791

The Penal Code of 1791 was adopted during the Revolution by the Constituent Assembly, between 25 September and 6 October 1791. It was France's first penal code, and was influenced by the Enlightenment thinking of Cesare Beccaria and Montesquieu.

Penal law in particular had been a source of great controversy during the French Revolution, which had promulgated the Penal Code of 1791 and numerous constitutions. An important feature of the 1791 code, as well as the 1795 Code of Offences and Penalties was to have fixed penalties to keep the role of judge strictly distributive, thereby eliminating the previous tradition of arbitrary sentencing.

Code of 1810

The Penal code of 1810 was a code of criminal laws created under Napoleon, replacing the French Penal Code of 1791. It replaced various laws adopted during the first ten years of the Revolution, incliuding the 1791 code and the 1795 code of Offenses. With the 1810 penal code, sentences were given a set range, allowing judges more latitude to decide on the severity of the punishment. The 1810 code was revised twice: a major change in 1832, the second, much more limited, in 1863.

Code of 1994

The current penal code () is the codification of French criminal law. It took effect 1 March 1994 and replaced the French Penal Code of 1810, which had been in effect until then. This in turn became known as the "old penal code" for the rare decisions that still needed to refer to it.

The Penal Code project began with the work of a commission created in 1974 by President Valéry Giscard d'Estaing. One draft of ''Book I (General Provisions)'' was heavily criticised by the criminal justice community and rejected by the Élysée Palace in 1980. After government changed hands in 1981, Robert Badinter, a former criminal lawyer who had become Minister of Justice, took over the commission.''M. Badinter préside la commission de révision du code pénal'', ''Le Monde'', October 22, 1981. The penal code project was discussed in the Parliament between 1989 and 1991. Book I was approved in 1991 followed by Books II - V.

Initially known as the new penal code (), it was created by several laws promulgated in July 1992. The new code was not so much a reform of the French Penal Code of 1810, but an original work with a new outline, new principles, a new formulation of the law, and even a new numbering system that is hierarchical instead of sequential.

It introduced a number of new concepts, such as the criminal responsibility of moral persons () apart from that of the State, (Article 121-2), and increased the sentencing for almost all and .

Basic principles

French criminal law is governed by the principle of legality and its three corollaries, the principle of strict interpretation of the law, the application of criminal law in time, and the application of criminal law in space.

Principle of legality

The principle of legality (french: principe de légalité) is one of the most fundamental principles of French law, and goes back to the Penal Code of 1791 adopted during the Revolution.

. French legal publisher Dalloz describes it this way:

This principle is enshrined in the first chapter of the penal code, General Principles, in article 111-3.

Division of authority

The legal framework established by the Revolution put Parliament in charge of all three severity levels of infractions, but this was changed later, and now there is a division of authority, with Parliament retaining control of the two most serious levels, and , whereas are now considered a regulatory matter, and are handled by the government, not Parliament. This is covered in the first chapter of the code, in article 111-2.

Application in time and space

The principle of criminal liability is defined in the constitution, and a fundamental corollary of it is the application of the criminal law in time (). This principle defines the non-retroactive nature of criminal sanctions, and is governed by article 112-1 of the penal code. The article defines the disposition in cases where acts were committed around the time a new law was taking effect.

Sources

Sources of the penal code come from national (French) sources, and international sources, and come from written and unwritten (judicial, ''praetorian'') sources. Written sources include the Constitution, the Preamble, and various penal codes, including some going back to the Revolution, or even for example the 1539 ordinance under Francois I mandating the use of the French language.
The main source of criminal law is the penal code: it "expresses a value system allowing one to distinguish what is permitted from what is prohibited, and to measure the level of tolerance of a transgression of social norms".

Today, the tend more and more to be international, under the influence of jurisprudence in European courts such as the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (CEDH).

Infractions

Definitions

''Infraction''

An (offense) can be defined as an action or omission that disrupts the peace of social order and exposes its perpetrator to a or a penal sanction. The purpose of the is to codify offenses, classified according to their level of severity in a tripartite division in the penal code: ''crimes'', and

''Crime''

are the most serious offenses. Tried by the with a , they carry a sentence of for life. Before 1981, crimes were subject to the The types of crimes most frequently tried in France are homicide, rape, and armed robbery.

''Délit''

cover various categories of offenses. They fall under the jurisdiction of the '' Tribunal correctionnel'' and may be tried by a panel of judges or by a single judge. The maximum penalty is ten years' imprisonment, which can be increased to twenty years in the event of , particularly in cases of organized crime. The most frequently prosecuted offenses are and fraud, assault and battery, property damage, drug trafficking, and traffic offenses (lack of a driver's license, Driving under the influence of alcohol).

''Contravention''

are mainly related to violations of and low-grade violence. Contraventions are divided into five classes according to their severity. The majority of traffic offenses are handled administratively and automatically (suspension of or adjustment of "points", in particular), but judges are sometimes required to issue fines themselves.

Components

An offense () comprises three components:
* The legal basis () for pursuing a criminal case
* The
* The

Legal basis

The first of the three components is the legal basis () for pursuing a criminal case. The public prosecutor or other investigating official must establish the legal basis for charging someone with an offense. This consists of describing the acts committed, and identifying the specific legal text purported to have been violated in the commission of these acts.

Material element

Moral element

The moral element is one of the three components of an offense, and refers to the psychological attitude of the perpetrator towards the commission of the acts deemed to be punishable by criminal law. The perpetrator may have acted with intent, or through recklessness or negligence. The fault is said to be intentional or unintentional. In the case of and , there is no crime without intention to commit it.

Procedure

A complaint by a victim or a law enforcement official is the initial step in launching a criminal investigation.

Investigation

Criminal procedure starts with the investigation phase. The investigation has two parts: the preliminary police investigation () and the in-depth investigation () under the supervision of the court.

The preliminary police investigation takes place under supervision of the public prosecutor's office (). In this phase, the police make inquiries in order to determine if a crime has been committed, and attempt to find a suspect.

In the second phase, the in-depth investigation is carried out to see if there is enough evidence to warrant prosecution. The second part is normally carried out by the prosecutor (), or in some serious cases, by the investigating judge ().

Punishment

Background

The concept of punishment for offenses has its origins in the Declaration of the Rights of Man, article 8. The Declaration is recognized in the Preamble to the French Constitution, and is invested with constitutional power, due to the 1971 Liberty of Association decision of the Constitutional Council, which said:

This principle, also known by its Latin name, , is common to democratic states and considered fundamental to the rule of law, and was elucidated by Italian jurist Cesare Beccaria in his 1764 ''On Crimes and Punishments''.

Penalties

The penalty, or criminal sanction, is the corollary of the offense. Since October, 2014, Article 130-1 of the Penal Code has defined the two main functions of criminal sanctions as: "to punish the perpetrator, and to promote their reform, reintegration, or rehabilitation."

See also

* Classical school (criminology)
* Code of Offences and Penalties
* Codification (law)
* Cour d'appel (Appellate court), procedures in common law vs. French jurisdictions
* Court of Appeal (France) – differs considerably from common law appeal court procedures.
* Court of Cassation – general scope, does not discuss France specifically
* Criminal justice system of France
* Declaration of the Rights of Man and of the Citizen
* French penal code
* , magistrate, co-author of the penal code project
* International criminal law
* Law of France
* Napoleonic Code – civil, not criminal
* Nulla poena sine lege

References

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External links

{{Authority control

Criminal codes
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Government of France
Legal history of France