The Law of Criminal Procedure

Article 12

The operations of the judicial police are directed by the district prosecutor and conducted by civil servants and officers.

Article 13

The work of the judicial police is supervised by the public prosecutor and monitored by the investigating chamber.

Article 14

If no judicial investigation is launched, the responsibilities of the judicial police include detecting the violations of criminal laws, collecting evidence of these crimes, and identifying the offenders. When such an investigation is opened, the police should carry out the tasks and orders assigned to them by the authorities directing the judicial investigation.

Article 19

The officers of the judicial police must promptly inform the district prosecutor about the felonies, petty offenses, and misdemeanors about which they know. Immediately after completing their operations, they should send both original and certified copies of the records that they kept. Every document related to the crime should be transferred to the district prosecutor at the same time; the objects seized should also be made available to him/her. The officer or any other person, who drew up the official records, should specify his/her role and position.

Article 31

The public prosecutor is obliged to initiate the legal action and require the enforcement of the law.

Article 32

In each criminal court, there must be a representative of the public prosecutor.

The public prosecutor is obliged to participate in court hearings. Moreover, every ruling that is passed by the court has to be read to its representative.

The public prosecutor is responsible for ensuring the execution of court decisions.

Article 38

The agents and officers of the judicial police are supervised and directed by the prosecutor general. He has the authority to ask them to gather any information that may be useful in the administration of justice.

Article 49

The duty of the investigating judge is to direct judicial investigations. This person must not participate in the trial of a case that he/she examined as the investigating judge. If this rule is violated, the authority of the judge will be revoked.

Article 50

The candidates for the post of an investigating judge are chosen among the court judges. They are assigned to their positions according to the rules governing the appointment of investigating judges. If it is necessary, another judge can assume the position of an investigating judge on a temporary basis. In this case, the same rules of selection and appointment will be followed. Providing that the investigating judge is unable to perform his/her duties due to illness, absence, or any other reason, the district court can substitute him/her by the court judge.

Article 51

The investigating judge is allowed to initiate an examination, only when the district prosecutor refers the case to him/her. The investigating judge can also take the case if there is a petition or a complaint asking him/her to be involved as a civil party. While carrying out his/her responsibilities, the investigating judge is allowed to secure the support of police and other law enforcement agencies.

Article 52

Several investigating judges have jurisdiction over the case. Firstly, this authority is given to the judge working in the locality where the crime was carried out. Secondly, one should speak about the judge working in the place where at least one of the suspects resides. Thirdly, the case can be under the jurisdiction of the judge from the place where one of the suspects was arrested. Finally, the authority is given to the judge who works in the place where one of the suspects is put in detention.

Article 79

It is mandatory to conduct preliminary judicial investigations when a felony has been perpetrated. Such investigations are usually optional in the case of misdemeanors providing that there are no special provisions. They may also be conducted for petty offenses if the district prosecutor makes such a request.

Article 44

The police prosecutors assigned to neighborhood and police courts work under the direction of the district prosecutor. He has the authority to inform them about petty offenses and order them to start a prosecution. If it is appropriate, he/she can also ask them to begin a judicial investigation.

Article 80

The work of the investigating judge should comply with the submission that the district prosecutor makes. The prosecutor can make this submission against an identified or unidentified person. If the investigating judge learns about the crime that is not referred to in the prosecution submission, he/she must immediately send the complaint to the district prosecutor. He/she should also provide the official documents indicating at the existence of the complaint.

Under such circumstances, the district prosecutor may take several steps. Firstly, he/she can issue an additional order requiring the collection of additional facts or the initiation of a new investigation. Secondly, he/she can ask the investigating prosecutor to transfer the official documents to the district prosecutor who has stronger territorial jurisdiction over the case. Finally, the district prosecutor can require the investigating judge to make an inquiry or drop the case or send it to the court. When the district prosecutor decides to initiate a new investigation, the same investigating judge may be required to work on this task.

Article 80-1

The judge is authorized to start an investigation of a person only if there is compelling evidence indicating that he/she could be involved in a crime either as a perpetrator or an accomplice. The judge can place an individual under judicial examination only after hearing this person’s statements or at least allowing him/her to make these statements.

Article 80-2

The investigating judge can inform any individual that he/she will be summoned during a period ranging from ten days to two months. The letter will identify the date and time when the person will be expected to appear. Furthermore, this document should specify the reasons why an individual has to be placed under judicial examination. The judge is also expected to define the legal terms mentioned in the letter. The notification sent to the person should also mention that he/she can either select an attorney or require an advocate assigned by the state. The individual should be asked to notify the clerk about the advocate that he/she chose. Finally, the letter should clearly emphasize that a person can be legally placed under judicial examination only after his/her first meeting with the investigating judge.

Article 80-3

During the first meeting with the victim, the judge should notify this person about his/her civic rights; moreover, it is necessary to explain how this individual can exercise his/her rights. In those cases, when the victim is an underage person, this information should be provided to his/her legal guardians. The notice stipulated for in the above paragraph should also tell that if the victim decides to exercise his/her civil rights, he/she can either choose an attorney or request the advocate selected by the Bâtonnier. The notification should also inform the person that he/she will have to cover legal expenses. The only two exceptions are the cases when the victim is entitled to free legal aid or insured against possible litigation costs. If this person wants to act as a civil party, the investigating judge should inform the Bâtonnier about this need.

Article 81

The investigating judge is charged with taking every legitimate step required for the discovery of relevant facts. He must give equal consideration to the evidence of guilt or innocence. When it is possible, the judge is obliged to undertake investigative steps, in person. If the judge is unable to do it, he/she should contact the officers of the judicial police and request their assistance. The investigative judge is also expected to verify the information gathered by the judicial police officers.

Article 81-1

The investigating judge can assess the nature and effects of the prejudice that the victim suffered. Moreover, he/she can obtain information about the personality of the victim. Such steps can be done automatically or at the request of the court and the civil party.

Article 82

The initial and supplementary submissions given by the district prosecutor can require the investigating judge to take measures that are deemed helpful in the discovery of relevant facts. Moreover, the district prosecutor may request the judge to take precautions minimizing potential risks. He/she may also ask to be present in person when the investigating judge takes the steps described in the initial and supplementary submissions.

The district prosecutor may also receive the case file; nevertheless, he/she is obliged to return these documents within the period of twenty-four hours. When the investigating judge cannot endorse the submissions of the district prosecutor, he/she must give a reasoned order no later than five days after the submissions. If there is no reasoned order, the district prosecutor can refer to the investigating chamber.

Article 82-1

During the investigation, the parties can file a written application that may include several requests. In particular, they can ask the investigating judge to hear or interrogate them. Additionally, they can insist that a witness should be heard. Furthermore, they can insist that the scene of the crime should be examined. These people can also request the disclosure of facts that will facilitate the investigation and ensure the administration of justice. Finally, they can ask for any other measures that will be useful in the discovery of relevant facts.

Article 84

The president of the court has a right to demand the replacement of the investigating judge. This substitution can be allowed only if it is indispensable for the administration of justice. Furthermore, this change can be requested in the submission of the district prosecutor. In this case, he/she can act spontaneously or following the application made by one of the parties. The judge presiding over the court should make a decision on this issue by giving the order that cannot be appealed. If the investigating judge change cannot do his/her duties because of an illness, vacation, or any other cause, the president of the court can designate a replacement. Under some urgent circumstances, the investigating judge can be substituted by any other investigating judge representing the same court.

Article 92

The investigating judge has the authority to go to the scene of the crime to collect the evidence pertinent to the case. He/she is required to communicate these findings to the district prosecutor who has a right to accompany the investigating judge. The clerk must always accompany the investigating judge. This person is responsible for maintaining the records of all the actions taken by the judge.

Article 101

The investigating judge can summon any person if the testimony of this individual can facilitate the discovery of truth. The subpoena should be communicated through a police officer or a bailiff. The person called by the judge should receive the copy of this subpoena. Ordinary and recorded delivery letters can also be used to summon a witness. The subpoena can also be communicated through administrative channels. Furthermore, the witness should be warned that if he/she fails to arrive, law enforcement agencies will have no choice but to compel him/her to appear.

Article 102

There are several ways in which witnesses can give their testimony. Firstly, they can be heard separately and in the absence of other parties. Secondly, they may have to confront other witnesses and parties. In each case, the investigating judge and his/her clerk must be present. Each of the statements made by these people must be recorded.

Article 120

The investigating judge is responsible for directing hearings, interrogations, and confrontations. The attorneys representing the parties, the district prosecutor, and witnesses are allowed to ask clarifying questions and make observations.

When it is necessary, the investigating judge can choose the order of possible interventions. He/she can end these interventions if the relevant information is gathered. The investigating judge may also decline any questions that disrupt the process of inquiry. Additionally, he/she may refuse the questions that are either insulting or too personal. Each of such refusals has to be mentioned in the report submitted by the judge. The case file submitted by the investigating judge must include the submissions of the advocates, the prosecutor or witnesses. Sometimes, they may state that the content of the case file is incomplete. The investigating judge must identify these issues in the case file.

Article 122

The judge responsible for the investigation of the case has the right to grant a warrant for a summons, a search, a subpoena, and an arrest. The custody and liberty judge will give the order of committal. A search warrant may be given only if there is a probable cause to think that a person either perpetrated or attempted to perpetrate a crime. The search warrant may not be issued if a person is only mentioned by the public prosecutor, a witness or an individual who is placed under judicial investigation. This warrant can be regarded as a decree requiring the law enforcement agencies to find the person and place him/her into custody.

The warrant for a summons, an arrest or a subpoena can be issued against an individual if there is substantial evidence indicating that he/she was involved in a crime either as the accomplice or the perpetrator. This warrant can also be given in those cases when the individual is placed under judicial examination. It can also be authorized if a person is treated as a witness.

A subpoena is supposed to notify a person that he/she is obliged to come to the court at a certain date.

A summons can be defined the order requiring the law-enforcement agencies to bring the person before the judge.

A warrant for arrest is the order requiring police or other law enforcement agencies to detain a person and bring him/her before the court.

The investigating judge must hear the statements made by every individual against whom there is a warrant for an arrest, a summons, or a subpoena. He/she will be regarded as an assisted witness. The only exception is the case when this individual is under judicial examination.

A warrant of committal can be given against a person if two requirements are satisfied. Firstly, this individual has to be put under judicial examination. Moreover, this person has to be the subject of the order requiring pre-trial detention. A committal warrant is an order according to which the prison governor has to detain a person. It also allows the transfer of this individual providing that he/she has been notified beforehand.

Article 175

When the judge believes that the investigation should be completed, he/she must inform the parties involved in the case as well as their advocates. The judge can communicate this decision verbally and enter the signature in the case file. Secondly, he/she can do it by sending a recorded delivery letter. If a person is temporarily detained, the notice about the completion of investigation can be given by the governor of the prison.

The receipt or its copy signed by the detained person should be immediately sent by the governor to the investigating judge. The parties can submit an application or make a request during the period of twenty days after the sending of the investigating judge’s notice. The right to establish the time limit can be waived by a party in the presence of its attorney. To waive this right, the party can also summon the advocate in due form.

After the expiry of the twenty-day deadline, the investigating judge is supposed to provide the district prosecutor with the case file. The district prosecutor is expected to send his/her submission during the period of one month providing that at least one person was detained. If no one was arrested, the prosecutor can send the submission during three months. In those cases, when the district prosecutor does not send the submission for three months, the investigating judge is allowed to give a closing order.

Article 177

Under certain circumstances, the investigating judge can rule that there is no need for prosecution. Such a step can be taken if the facts of the case do not indicate at any crimes, petty offenses, misdemeanors, or any other violations of the law. Secondly, the judge can give this order if the criminal has remained unidentified. In those cases, when the discharge order is prompted by the death of the suspect, the investigating judge should tell if there is sufficient evidence proving the guilt of the suspect. The person, who was placed in pre-trial detention, must be released.

The order issued by the investigating judge ends the judicial supervision. In this order, the judge can also require the restitution of any objects put under judicial safekeeping. In some cases, he/she can decline the restitution if this action may pose a threat to individuals and their property. Any person, who has an interest in the articles, can refer the decision on restitution to the investigating chamber.

Article 178

When the collected evidence suggests that a petty offense was committed, he/she can send the case to the neighborhood court or police court. When the order is finalized, it eliminates any possible procedural defect.

Article 179

If the collected evidence indicates that a misdemeanor was done, the judge can transfer the case under the jurisdiction of the correctional court. The judge’s closing order will end judicial supervision and pre-trial detention. In those cases when an arrest warrant was issued, it still remains enforceable. When a search or a summons order was given, it can no longer be enforced. Nevertheless, the investigating judge still has the right to authorize an arrest warrant. The investigating judge has to give a separate order if he/she believes that a person should be detained due to some reasons.

Article 181

If the investigating judge thinks that the suspected person can be rightly accused of a felony, he/she may require the assize court to indict this individual. The judge can ask the same court to hear this case. The indictment order is supposed to include several elements. Firstly, it should specify the identity of the person suspected of the felony. Secondly, it should present and qualify the issues to which the charges are related. If one of these elements is missing, the order can be nullified. Those people, who were detained or put under supervision for misdemeanors, are supposed to be released. When the suspect is put in the pre-trial detention, the order of committal issued against him/her can remains in power. Moreover, this individual will remain in custody until the assize court hears his/her case.

Article 185

The district prosecutor is allowed to appeal against every decree passed by the investigating judge. Furthermore, he/she has the authority to appeal against the rulings that liberty and custody judges make. To take such steps, the prosecutor should refer to the investigating chamber. The appeal should be submitted during the five days following the nullification of the decision taken by the judge. It should be presented as a statement in the district court.

Article 186

The civil party is allowed to bring an appeal against discharge orders as well as the orders declining the investigation. Furthermore, this party can appeal against the decisions that will have an effect his/her claims. Nevertheless, he/she is not allowed to appeal against the orders requiring the detention or judicial supervision of the suspect. Additionally, the parties are entitled to challenge the decisions taken by the judge on his own motion.

The appeal can also be filed if the judge has acted on the objection to his/her jurisdiction. This document must be sent during ten days following the notification about the decision. The public prosecutor has to receive the case file compiled by the investigating judge. When the head of the investigating chamber finds that the appeal is inadmissible or unreasonable, this person must give his/her own order ruling that the decision of the judge cannot be reversed. Additionally, in some cases, the president has the authority to withdraw the application of the appellant.