Criminal proceedings

As a victim, it will also be important at this stage to obtain a record of your injuries (whether physical or psychological). Most of the time, when you file a complaint, you will be given a judicial requisition, and you will then be referred to a doctor in a Medical-Judicial Unit, which may also be called a Forensic Medical Institute or a Medical-Legal Unit. The doctor will take your explanation of what happened to determine the link between your injuries and their findings.
The doctor will also establish the length of your total inability to work, in the criminal sense of the term; this does not necessarily mean you are signed off work, but it will be used by the judge to qualify the facts (e.g. a child, a person who is unemployed or who does not work can also have a total inability to work).

At the end of the medical examination, the doctor will draw up an initial medical certificate: one copy may be given to you, at your request (Article 10-5-1 of the Code of Criminal Procedure) and another sent directly to the police.

Once the necessary evidence has been gathered, the investigation file is closed and forwarded to the Public Prosecutor who will decide what actions to take (the ‘rule of discretionary prosecution’), with several possible options: close the case without further action, order an alternative measure to prosecution, or prosecute the defendant (with or without a judicial investigation).

The decision to prosecute or not depends on whether the Public Prosecutor’s Office considers that there is sufficient evidence against the suspect.
In some cases, the Public Prosecutor has no choice (e.g. for crimes they are obliged to open a judicial investigation).

In making their decision, they must take into account the facts of the case, the circumstances, the victim, but also, more generally, the current criminal policy.

- Option 1: Closing the case with no further action

If the perpetrator has not been identified or if, on the basis of the preliminary investigation, the Public Prosecutor considers that there is insufficient evidence that the suspect committed the criminal offence, they will decide not to prosecute. The complaint is said to be closed without further action.

Justification must be given for closing a case without further action, including legal reasons or reasons of expediency (e.g. insufficient evidence to characterise a criminal offence, public action has become time barred, perpetrator is not responsible, perpetrator has not been identified, etc.).

The victim must be informed of the decision (Article 40-2, paragraph 2 of the Code of Criminal Procedure), but in practice this does not always happen automatically. It is possible to find out from the police station or the court whether a decision has been made. The victim can also contact a victim support association for information.
The courts are increasingly asking victim support associations to assist victims after they have been informed that their complaint has been dismissed and the case closed without further action.

Closing a case without further action means that the Public Prosecutor did not think they had the necessary elements to initiate criminal proceedings. Victims can challenge this decision if they wish. They have mainly three remedies:

• A hierarchical appeal to the Attorney General against the decision to close the case without further action. The case is then transferred to the Attorney General, who will be responsible for reassessing the suitability for prosecution: the Attorney General may agree with the Public Prosecutor’s opinion or order them to prosecute.
• Direct summons: the victim can initiate proceedings of their own accord and prosecute the perpetrator by summoning him or her to appear before the court. This procedure includes a deposit fee calculated according to the victim’s resources. If the procedure is unsuccessful, the money will not be returned.
• This procedure does not cost anything for the victim. It is possible in cases of medium seriousness, for misdemeanours or minor offences, where the reality of the facts committed and the damage suffered has been established and the perpetrator is known.
• A complaint to the Senior Investigating Judge, with registration as a civil party, the judge will then launch and direct a judicial investigation. In this case, the victim will have to pay a deposit based on their income. If the procedure does not lead to any prosecution, the deposit is not returned.

Finally, the victim may also bring a case in a civil court to claim compensation for their loss.

If a victim wants to challenge the decision, it is important to obtain the advice of a lawyer in order to assess which option is most appropriate.
Jurists from victim support associations can also provide information on these remedies (but cannot give legal advice).

- Option 2: Ordering an alternative measure to prosecution

The Public Prosecutor may also order an alternative measure to prosecution.
In France, approximately 40% of cases that could be prosecuted (i.e. where the perpetrator has been identified and the criminal offence has been established) are dealt with by an alternative to prosecution.
Alternative measures to prosecution have three objectives:

• Ensure compensation for the damage caused to the victim (resulting from the legislator’s desire to ensure victims are not overlooked),
• Put an end to the situation caused by the criminal offence,
• Contribute to the social reintegration of the perpetrator.

Alternative measures to prosecution are only applicable for “low-level misdemeanours”, not for serious offences or crimes.

There are several types of alternative measures offering a graduated criminal response, including criminal mediation (not permitted for cases of domestic violence since the law of 30 July 2020), appearance on prior admission of guilt, criminal settlement, etc.

The adoption of alternative measures suspends any public prosecution and, if the parties do not reach an agreement or the agreement is not respected, the Public Prosecutor can initiate proceedings.
With criminal mediation, if the parties reach an agreement, the complaint is closed without further action.

Appearance on prior admission of guilt is also an alternative measure to prosecution: it is a procedure that allows for rapid judgement of an adult perpetrator who has admitted to the facts (also known as ‘pleading guilty’). This can be used for all offences except media offences, manslaughter and political offences, as well as intentional or unintentional injury to persons and sexual assault punishable by more than five years’ imprisonment.
This procedure is initiated at the request of the Public Prosecutor, the Investigating Judge or the defendant. It consists, as far as the prosecutor is concerned, in offering the accused, who has pleaded guilty, one or more penalties; if the defendant accepts the offer, it is submitted for approval to the Presiding Judge of the Court. The judge’s decision, which is jurisdictional, can be appealed and has the same effect as a guilty verdict. Therefore, this procedure replaces the traditional trial before a criminal jurisdiction. The victim must be informed of this procedure and may claim damages.

- Option 3: Prosecution:

If the Public Prosecutor believes there is sufficient evidence that the suspect has committed a criminal offence, the suspect will be formally prosecuted and may be tried, i.e. there will be a trial.

The Public Prosecutor may decide to prosecute. The defendant may be informed of the proceedings in different ways: by a bailiff, by a summons, by being arrested, by being remanded in custody, etc.

The trial will not necessarily take place immediately, and a judicial investigation may be needed as an interim measure and for certain types of offences (mandatory for crimes and optional for misdemeanours).

A trial is a hearing in a court of law in which a dispute is brought before it and a decision is reached.
The purpose of a criminal trial is to decide whether there is sufficient evidence to convict the defendant for the offence charged and, if so, to pass judgement. It is important to know that even if a judgement is made against the defendant, this does not mean that the defendant will go to prison. There is a range of penalties in addition to imprisonment.
The trial also decides whether the victim and any other person who has suffered harm as a result of the crime are entitled to compensation, at their request.

In principle, trials are public, which means that anyone can attend the hearing (according to the open court principle). There are, however, some exceptions, in order to protect the privacy of the victim, but also when publicity could be ‘dangerous to public order, the smooth running of the proceedings, the dignity of the person or the interests of a third party’. This is particularly important in the case of sexual crimes or human trafficking.
In particular, in cases of rape or torture and acts of barbarity accompanied by sexual assault, a victim who has registered as a civil party has the right to a trial in a closed chamber, if they so request, which is automatic when the victim is a minor. In other cases, a closed chamber may be ordered if the victim who is a civil party or one of the victims who are civil parties does not object.

Since a law of 22 December 2021, criminal trials may be filmed or recorded for reasons of public educational, informative, cultural, or scientific interest. Similarly, trials, examinations, and meetings conducted by the Investigating Judge may also be recorded and broadcast.

Not all trials will be filmed: authorisation for recording and broadcasting must be given by the heads of the courts concerned, after consulting the Minister of Justice.
Footage may only be broadcast once a final judgement has been issued, with the consent of the parties concerning their image rights and in accordance with the principle of respect for privacy and the presumption of innocence.
If the trial is not public, recording will be subject to the prior written consent of all parties or their legal representatives.
No further identifying elements of the persons recorded may be broadcast 5 years after the first broadcast, or 10 years after the recording was authorised.

After receiving the case file, the judge (who is not the same as the Investigating Judge, if there has been a judicial investigation) sets the date for the trial and issues a summons to the defendant, as well as a written notification to all persons who participated in the judicial investigation phase. In particular, a victim notice (avis à victime) is sent to all victims, who will be able to register as a civil party in the proceedings, if they have not already done so, and claim damages.

The trial is an important step, often long-awaited but at the same time dreaded by some victims. A victim can be assisted by victim support associations to prepare for the trial (e.g. psychological support, explanation of who does what, visit to the courtroom).

During the proceedings, in order to become a party to the trial and to have their voice heard, the victim must register as a civil party.
This allows them to access the criminal file, take part in the proceedings, be informed of the outcome of the proceedings (i.e. receive a copy of the judgement and the certificate of no appeal), and claim damages for the harm suffered.

To register as a civil party, if you have not already done so, you can:

• before the trial, either submit your request in writing to the court clerk’s office, or send a letter by registered letter with acknowledgement of receipt, fax or e-mail (must be received by the court at least 24 hours before the hearing date) in which you quantify all of your losses and specifying, if necessary, that you will not be attending the trial;
• come to court on the day of the trial.

In all cases you can be assisted or represented by a lawyer.
Jurists from the victim support associations can also provide assistance and information to register as a civil party. However, unlike the lawyer, they cannot provide advice or represent the victim in court.

Form to be completed in order to become a civil party in an ongoing case: CERFA Form to become a civil party.pdf

At the trial, the victim has the right to be present (alone, accompanied by a relative, an association, or a lawyer) or to be represented by a lawyer. They can ask the judge to hold the trial without the public being present, in ‘closed chamber’. The judge will decide whether to accept this request before the trial begins.

Representation by a lawyer

In any case, you are entirely free to choose your lawyer.
You can have a free consultation with a lawyer at one of the drop-in sessions organised by the Bar Association in your area. Victim support associations will be able to provide you with all useful information on this subject.
The lawyer’s fees are not fixed. It is important to discuss them from the outset with a very precise fee agreement setting out the rates.

Legal fees and costs

There are several solutions for covering all or part of the costs and fees incurred, in certain cases, during criminal proceedings:

• A legal protection or assistance clause in an insurance policy that pays for all or some of a lawyer’s costs and fees;
• Legal aid: this can be granted to people on a low income, and means the State will pay all or some of the legal fees.

You can only claim legal aid if you do not have any legal protection insurance that would cover these costs.
However, it is automatically granted for the most serious offences, all of which are listed in the Criminal Code (e.g. crimes such as rape, murder).

Before the Court of Assizes:

Trials in the Court of Assizes involve six popular jurors chosen by lot and three professional judges.
Cases are referred to the Court of Assizes by the Investigating Judge, by means of an Order of Indictment (a judicial investigation is mandatory in the case of a crime).

The trial before the Court of Assizes is oral, public, and adversarial, i.e. each party will be heard. The case file is not made available to the jury before the trial. Consequently, the only way jurors can find out about the case is during the proceedings, through questioning, testimony, expert evidence, etc.

However, in cases where holding a public trial is likely to be prejudicial to public order or morality, the presiding judge may decide, at their own initiative or at the request of the victims in the case of sexual offences, to hold a trial in closed chamber. In this case, only defendants and victims will be allowed to attend the trials.

The jury is assembled and each juror must first take an oath.
The accused must be represented by a lawyer.

For the victim, the presence of a lawyer is never compulsory, but it remains very essential.

The Presiding Judge of the Court of Assizes directs the proceedings and adopts all the measures necessary for the trial to run smoothly, and gives the floor to all the persons who are called upon to intervene in the trial.
First, the Judge briefly presents the facts with which the accused is charged along with the case for the prosecution and the defence.
The trial then proceeds in the following order:

Examination of the accused;

• Hearing of witnesses and experts after they have taken their oath. An adversarial debate (cross-examination) may follow for each witness;
• Hearing of the civil parties;
• Oral pleadings from the civil parties;
• Applications (submissions) from the Public Prosecutor (Advocate-General, who pleads as a representative of the public interest);
• Oral pleadings by the defendant’s lawyer;
• The accused is given the last word.

The civil parties and the prosecution are, of course, entitled to reply, but the accused or their lawyer always has the last word.

Departmental Criminal Courts:

The Departmental Criminal Courts were created by the Justice Reform of 23 March 2019.
They are competent to judge, in first instance, crimes punishable by 15 or 20 years of severe imprisonment, committed by adults who have not re-offended.

These courts are composed of only five professional judges, unlike the Courts of Assize which are composed of three professional judges and six popular jurors.
They were created to speed up the trial of certain crimes and to limit the practice of ‘reduction’ (a phenomenon whereby certain facts that should be characterised as crimes and judged by a Court of Assizes are instead qualified as misdemeanours and judged by a Criminal Court).

On 1 January 2021, a trial was launched for 15 Departmental Criminal Courts, with the scheme to be rolled out across the country in January 2023.

Criminal Court:

Trials before the Criminal Court are oral, public, and adversarial, i.e. each party will be heard. In principle, trials take place before three judges, except for certain less serious cases, which may be tried by a single judge.
Cases may be referred to the Criminal Court by:

• The Public Prosecutor (possibly at the request of a victim),
• The Investigating Judge,
• The victim, by direct summons (summons to appear before the court) served by a bailiff.

The defendant is summoned to appear at the trial: they must usually appear in person and may be assisted by a lawyer.
The trial is public, unless the Presiding Judge decides otherwise.

Victims may represent themselves, be represented by a lawyer, or appear with their lawyer.

The Presiding Judge questions the accused, then hears the witnesses and, if necessary, the experts.
The floor is then given to the victim, then to the Public Prosecutor for their submissions, and finally to the defendant’s lawyer and/or the defendant. In all cases, the defendant should be given the opportunity to have the last word.
The parties may request a postponement of the trial to a later date, for various reasons (e.g. need more time to prepare the defence or the victim’s claim for damages, request for an expert opinion).
The court may impose imprisonment, fines, or alternative sanctions.

N.B.: Immediate appearance
Immediate appearances may be called by the Public Prosecutor. They allow for a quick judgement on cases where the facts are clear and there does not seem to be any particular complexity.
The prosecutor receives the alleged offender, informs them of the charges and of the summons to appear before the Criminal Court. The accused will be assisted by a lawyer – who will be appointed automatically, if necessary – and may refuse to agree to an immediate appearance.

The Criminal Court will be composed of three judges, even if the criminal offence would normally have been tried by just one judge.
The defendant is summoned to appear before the Criminal Court and, once they have agreed to an immediate appearance, the trial will begin. If they refuse to be tried immediately (for example if they want more time to prepare a defence), the court will have to postpone the trial to a later date.
This procedure is available for misdemeanours punishable by at least two years’ imprisonment (at least six months for misdemeanours caught in the act).

In addition, it may not be possible to appear before the Criminal Court on the same day: in this case, while awaiting judgement, the Bail and Custodial Procedures Judge may be asked to decide if the defendant should be placed in pre-trial detention (under certain conditions) or be subject to one or more court-ordered restrictions.

Often, this procedure is a real ‘race against time’ for the victim because it is important, despite the speed with which the trial takes place, that they are informed and have the opportunity to exercise their rights if they so wish.

Police Court:

This court has jurisdiction over minor offences (i.e. the least serious offences under criminal law). It cannot impose prison sentences, but it can issue fines of up to €3,000 and adopt additional measures, such as, among others, the suspension of driving licences.

The summons to the court is made by simple letter or by a summons sent by a bailiff. The defendant is not obliged to appear in person (they may be represented by their lawyer or send a letter to the Presiding Judge asking to be tried in their absence).
The procedure is generally the same as in the ordinary courts.

In addition, for certain minor offences there may be a simplified procedure, without trial and without adversarial debate, by decision of the Public Prosecutor who referred the matter to the Police Court judge. The offender can object to this procedure (as can the victim, but only with regard to damages).

Juvenile Courts:

The law says that all minors capable of understanding are criminally responsible for the offences of which they have been found guilty.
Juvenile offenders may only be tried by specialised courts: the Juvenile Judge, the Juvenile Court and the Juvenile Court of Assizes. The age for determining the competent jurisdiction is the one of the offender at the date the criminal offence was committed.

The Juvenile Judge is competent, in principle, for Class 5 minor offences (i.e. criminal offences punishable by a maximum fine of €1500, or €3000 for a repeat offence) and offences committed by minors.

The judge may decide to refer the child to the Juvenile Court if the minor is at least 13 years old, if the sentence is at least three years, and if the minor’s personality or the complexity of the facts justify it. In other cases, the Juvenile Judge rules alone, at a trial held in their office and not in a courtroom. The judge hears the minor, who must be assisted by a lawyer and who must be accompanied by their parents (or legal representatives). The victim may also be present.
The Juvenile Judge can only pronounce reformatory measures involving assistance, supervision, placement, or judicial protection.

The Juvenile Court, composed of the Juvenile Judge and two assessors (professionals assisting the judge), rules on misdemeanours or Class 5 offences committed by all minors, as well as on offences punishable by a prison sentence of at least three years, if the minor is at least 13 years old, and if his or her personality or the seriousness of the facts justify it. The court has three types of sanctions for minors:

• Reformatory measures can be adopted regardless of the age of the child;
• Sanctions of a reformatory nature, such as a ban on contact with the victim, may be imposed on a minor aged 10 years or over;
• Minors between the ages of 13 and 16 can be punished. Any punishment must be justified by the circumstances and child’s personality, taking into account the principle of mitigation of responsibility (which generally reduces the punishment by half). The Juvenile Court may decide to not apply mitigation of liability for minors over 16 years of age, subject to giving specific reasons.

Finally, the Juvenile Court of Assizes, composed of three professional judges and six popular jurors chosen by lot, rules on crimes committed by minors aged 16 to 18 and their accomplices or co-perpetrators.
Trials in the Juvenile Court and the Juvenile Court of Assizes are held only in the presence of the victims, the accused, their immediate family members and representatives of reform services.

However, the trial may be held in public if the accused, who was a minor at the time of the criminal offence and who has reached the age of majority at the time of the trial, so requests, or at the request of another accused adult or the Public Prosecutor. The Court of Assizes does not grant this request when there is another accused who is still a minor or when ‘the personality of the accused, who was a minor at the time of the events, makes it essential that, in his or her interest, the proceedings should not be public’.

In other cases, the court will take into account the interests of society, the accused and the civil parties in its decision.
A major reform of juvenile criminal justice was introduced in France in September 2021, with a Juvenile Criminal Justice Code.

The criminal trial takes place in the Police Court for minor offences, in the Criminal Court for misdemeanours, and in the Court of Assizes for crimes. Trials are always public, except in exceptional cases.

The Police Court rules with a single judge, assisted by a court clerk. The Public Prosecutor’s Office is represented by the Public Prosecutor.

The Criminal Court is in principle composed of three professional judges, presided by one of them and assisted by a clerk. The Public Prosecutor’s Office is again represented by the Public Prosecutor.

The Departmental Criminal Court is composed exclusively of five professional judges, unlike the Court of Assizes which is composed of three professional judges, one Presiding judge, two assessors (assistants to the presiding Judge) and a people’s jury (6 jurors).

The following people are present at a criminal trial:

• The judges (and sometimes jurors)
• The Public Prosecutor/Advocate-General
• The Court Clerk
• The victim/civil party
• The civil party’s lawyer
• The accused/defendant
• The Defence lawyer
• The witness/experts/judicial police
• The interpreter