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DSK: A Tale of Two Criminal Procedures

The following is a guest post by Nicole Atwill, Senior Foreign Law Specialist in the Global Legal Research Center.

I recently watched Dominique Strauss Kahn’s return to France on the French news as I vacationed there.  There was nonstop live television coverage during the day.  Many commentators pointed out that although Dominique Strauss Kahn (“DSK”) left behind some of his legal troubles after the charges against him were dropped by the New York County District Attorney, they are not yet over.  He still faces a civil trial in the United States brought by his accuser, Nafissatou Diallo.  In addition, the French police conducted a preliminary investigation of a complaint made against him in July by French novelist Tristane Banon, the daughter of a former socialist official, who says he tried to rape her in 2003.  DSK has denied the claim.  The Public Prosecutor found that, based on this preliminary investigation, she may have been the victim of a sexual assault but not of a rape.  He closed her case as the statute of limitation for sexual assault is three years and had therefore expired.  It is ten years for rape.

The New York case also brought some aspects of the American criminal justice to France that are unfamiliar to the French public who may not watch Law and Order as often as I do!  One after another, legal experts appeared on French television contrasting American and French procedures.  The sight of DSK handcuffed, for example, shocked many in France.  In 2000, France amended its Freedom of the Press Law to add an article 35 quater that has the effect of prohibiting the distribution by any means of a photograph of someone wearing handcuffs who has not yet been convicted by a court.  The penalty is a fine of up to € 15,000.

Had DSK been arrested for the same charges in France, there are a couple of key features of French criminal pretrial procedure that I would like to highlight: the role of the investigating judge (juge d’instruction) and the right for the victim or his/her heirs to join the criminal case as a civil party (action civile).

Once the police have gathered initial evidence after the commission of a criminal offense, the public prosecutor has the discretion to determine the need, if any, to proceed further.  Under article 1 of the code of criminal procedure (Code de Procédure Pénale, “CPP”), he may decide not to prosecute and close the case.

The victim also has the right to initiate the criminal process (CPP, arts. 1, 85, 86).  Tristane Banon has already stated that she would exercise this right if the Prosecutor closed her case at the end of the ongoing preliminary police investigation.

In the most serious or complex cases, after the preliminary police investigation is over, the prosecutor generally requests the opening of a formal judicial investigation headed by an investigating judge (CPP, art. 80).  The investigating judge is a two centuries-old institution.  During the drafting of the Criminal Investigation Code of 1808, there were many discussions as to whether the prosecution and the investigation of a criminal offense should both be in the hands of the Public Prosecutor’s Office.  The “separatists” won the argument and the inquiry phase has been entrusted to an investigating judge ever since.  (Nicolas Bonnal, Juge d’Instruction in V Répertoire de Droit Pénal et de Procédure Pénale Encyclopédie Dalloz 2011.)

The judicial investigation is mandatory for offenses classed as “crimes.”*  For lesser offenses the investigating judge’s participation in a case is left to the discretion of the public prosecutor unless the victim initiates the investigation (CPP, art. 79).

The judge’s task is to discover the truth and determine whether the case should be either referred to trial or dismissed because of lack of evidence.  He is a guarantor of an investigatory process independent from the executive power.  He has the right to undertake “in conformity with the law, all acts of investigation that he deems necessary to reveal the truth, favorable or unfavorable to the suspect” (CPP, art. 81).

In contrast to the United States, the investigatory process in France is inquisitorial.  Although the parties may suggest lines of inquiry or witnesses to be examined, the judge has the responsibility of ascertaining the facts, rather than leaving it to the parties to present their cases to him (CPP, art. 82-1).  All stages of the judge’s investigation are closed to the public (CPP, art. 11).  The prosecution and the attorneys for the suspect and the victim (if he/she joined the case as a civil party) all have liberal access to the file.  The rule of secrecy is designed to protect the suspect’s reputation should no trial proceedings be ordered at the end of the inquiry, or, alternatively, to ensure a fair trial by preventing any potential jurors from receiving prior knowledge of the case.  However, this purpose is often frustrated by the fact that the prohibition on divulging information does not apply to the suspect, the victim, or any of the witnesses.

To perform his mission, the investigating judge is given extensive powers that include: the right to issue arrest warrants (CPP, arts. 122 to 136); to examine the suspect and the witnesses and to confront the suspect with witnesses (CPP, arts. 114, 101); to designate one or more expert witnesses (CPP, arts. 156, 157); to order a search for and seizure of evidence ( CPP, arts. 92  to 99-4); to order a wiretap (CPP, arts. 100 to 100-7); to re-enact the crime (CPP, art. 92); and to request that a suspect be placed in preventive detention (CPP, arts. 137, 137-1).

The investigations may take months or years.  At the end, the judge will decide whether the suspect should stand trial, and if so, in which court the trial will take place.  He has to determine whether there is sufficient evidence, which, if credible, could constitute a case for the suspect to answer.  He is not allowed to decide on issues of credibility, nor to interpret the evidence, and his personal views as to the suspect’s guilt or innocence are irrelevant (CPP, arts. 177, 178, 179 & 181).  Investigating judges’ decisions may be appealed to the Investigation Chamber of the competent court of appeal (CPP, arts. 191 to 218).

The role and powers of the investigating judge have been challenged on many occasions through the years.  Some have even called for the abolition of the role.  Until June 2000, investigating judges had the power to place suspects in preventive detention during the whole or part of their investigation.  They were accused of abusing their power by placing suspects in detention and putting pressure on them to confess.  As a result, the investigating judges’ powers in this area were restricted and given to a specialized judge who is a senior member of the judiciary called the “judge of liberties and detention” (CPP, arts. 137, 137-1).  In 2009, President Sarkozy stated his wish that investigating judges no longer lead criminal investigations.  A reform is still pending before Parliament.

The second key feature of France’s pre-trial criminal procedure rules is the right for a victim or his/her heirs to join as a civil party to the criminal proceedings; a victim may add his/her civil claim for damages before the criminal court (CPP, art. 3).  It is simpler, quicker, and cheaper than bringing a civil action before a civil court.  In addition, if the civil action is brought before a civil court, this court has to wait until the final judgment is rendered by the criminal court and it is bound by the verdict (CPP, art. 4 ).

Although a person may join as a civil party at different stages of the criminal case, it is recommended that he or she do so as early as possible in order to take advantage of the numerous rights given to the civil party during either the investigation or the trial.  These rights include: to access the file through the civil party’s attorney who enjoys the same rights as the defendant’s attorney; to appeal certain decisions of the investigating judge; to request to be interviewed or questioned by the investigating judge; to confront a witness or have a witness be heard; or to seek any action be taken that the civil party believes is necessary for uncovering the truth (CPP, art. 82-1 and subsequent articles).

* French criminal law distinguishes between three categories of offenses. In broad terms, crimes are a small category of very serious offenses such as murder, rape, or terrorism.  Délits are less serious offenses such as theft, fraud, assault and involuntary homicide.  While the last category, contraventions, includes a large range of regulatory offenses often carrying strict liability, only punishable by a fine.

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