Preliminary Investigation in French Criminal Proceedings
The French preliminary investigation procedure differentiates between the enquête de flagrance and the enquête préliminaire. The enquête de flagrance applies to crimes which have not yet begun or have just ended, and authorizes the police to use far-reaching coercive measures, including visiting the scene of the crime, determining the facts, seizing all objects or data carriers that are relevant to the investigation , ordering the search of the homes of persons who may have been involved in the offense or who are in possession of documents or information relevant to the offense, to interrogate persons who can provide information on the circumstances of the offense, or to take into custody a person suspected of being involved in the offense. In all other cases, the preliminary police investigation (enquête préliminaire) is applied. As soon as the criminal investigation department has identified the alleged perpetrator, the public prosecutor’s office is informed and a preliminary investigation (instruction) is initiated.
During the preliminary investigation, the examining magistrate (juge d’instruction) collects evidence for and against the accused and takes all measures that he deems useful, either on his own initiative or at the request of the public prosecutor or the parties, such as visiting the scene of the crime, interrogations, searches, etc. When the examining magistrate considers the preliminary investigation to be concluded, he informs the parties and their lawyers simultaneously. If the case is to be brought to trial, the public prosecutor and the parties then have a period of one month, or, if it is to be dismissed, three months to present their substantiated objections or requests to the examining magistrate.
Before the Indictment
In France, before charges are brought against a suspect and even before the official investigation begins, the person concerned must be summoned by the examining magistrate for an initial hearing (interrogatoire de première comparution) in accordance with Article 116 of the French Code of Criminal Procedure.
The purpose of the hearing is to give the suspected person an opportunity to respond to the charges. This hearing was introduced by the French law of June 15, 2000 on the presumption of innocence to prevent the person suspected of the crime (mis en cause) from learning from other sources that they are under investigation. Until then, they are neither charged nor indicted. It is suspected that they may have committed a crime, but it is still uncertain whether this is the case.
After this initial hearing, in the presence of a lawyer, the examining magistrate decides whether to dismiss the case, to grant the suspect the status of témoin assisté (a suspected accomplice against whom the evidence is not sufficiently secure to justify an indictment) or to initiate a preliminary investigation against them as the accused. In French criminal law terminology, this is referred to as a ‘mise en examen‘.
Once the decision to open an investigation against the person as the accused has been made, the person must be informed of their rights (right to appoint or be assigned a defense lawyer, right to remain silent, etc.). The defense lawyer has access to their client’s case file and must be able to communicate freely with them. With the judge’s consent, they can forward certain excerpts from the case file to their client.
In the case of a offense (délit) or a simple misdemeanor (contravention), the examining magistrate refers the matter to the court of law by order (ordonnance de renvoi) or brings charges (in the case of a crime).
In the case of trivial and minor offenses, however, the indictment is issued directly by the public prosecutor’s office in a modified form, by way of
– citation to appear before the court,
– summons to appear before the court, or
– immediate production (comparution immédiate) after temporary arrest.
In all three variants, the public prosecutor does not conduct extensive investigations, but instead decides to go directly to court.
