The criminal investigation or preliminary investigation is a phase that follows the investigation phase and precedes the trial phase. The purpose of the preliminary investigation is to prepare the case for trial. In accordance withArticle 79 of the Code of Criminal Procedure, it is mandatory in criminal cases, optional in civil cases, and exceptional in misdemeanor cases.
The investigating judge must be referred to by the public prosecutor; he cannot take up the case on his own initiative. Once referred to, the investigating judge will verify whether the facts brought to his attention constitute an offense. The investigating judge is independent, unlike the public prosecutor. It follows that the investigating judge will investigate both the prosecution and the defense, unlike the public prosecutor, who, as the prosecuting party, will conduct an investigation against the suspect.
Hearings and interrogations during criminal proceedings
According to Article 81 of the Code of Criminal Procedure, the investigating judge may carry out all investigative measures provided for by law that he or she deems necessary to uncover the truth. These prerogatives are numerous: the investigating judge may hear witnesses, assisted witnesses, and civil parties. He or she may conduct interrogations of persons whom he or she has decided to place under investigation.
Hearings and interrogations are investigative procedures through which the investigating judge can gather decisive evidence for their case. Whether you are an assisted witness, a suspect, or a civil party, it is in your best interest to contact a lawyer specializing in criminal law to ensure that these hearings are conducted in accordance with your most basic rights.
A. Hearing of the civil parties
The investigating judge may also hear civil parties in accordance with rules modeled on those governing the questioning of the defendant. These hearings will therefore take place by summons and in the presence of a lawyer.
As a civil party, a hearing with the investigating judge can be particularly stressful. Since the judge is independent, he or she can conduct an investigation that may be detrimental to your case and will therefore take a very different approach to you than that taken by judicial police officers (OPJ).
In addition, the judge or even the defendant may request to be confronted with the civil party, which can be a difficult ordeal, especially for the victim.
If you are a civil party and have been summoned to a hearing with the investigating judge, it is in your best interest to attend with a lawyer specializing in criminal law who can defend you and your interests.
B. Hearing of witnesses
The investigating judge, pursuant to Article 101 of the Code of Criminal Procedure, may hear witnesses. A witness is a person who is likely to have information necessary to reveal the truth. however, in a decision handed down on June 30, 1981, the Criminal Chamber of the Court of Cassation ruled that the investigating judge could not hear as a witness a judicial police officer (OPJ) who had attended the hearings of a defendant recorded in a report that had been annulled. (Crim. June 30, 1981, Appeal No. 81-92.261)
This does not necessarily have to be someone who witnessed the crime directly; it could simply be someone who can provide information about the suspect's personality. For example, a friend of the suspect.
Pursuant to Articles 102 et seq. of the Code of Criminal Procedure, witnesses must swear an oath to tell "the whole truth and nothing but the truth" when giving evidence. Refusal to take the oath is an offense underArticle 434-15-1 of the Criminal Codeand punishable by a fine of up to €3,750.
However, on October 2, 1990, the Court of Cassation ruled that failure to take the oath or taking the oath late does not invalidate the hearing, provided that this omission did not prejudice the rights of the defense (Crim. October 2, 1990, Appeal No. 90-81.811).
You do not have the right to legal representation during your hearing with the investigating judge. However, there is nothing to prevent you from contacting a lawyer specializing in criminal law before your hearing so that they can explain how the hearing will proceed, what your rights are, and what your obligations will be.
C. Hearing of assisted witnesses
The witness has a special status. This status is intermediate between that of a defendant and that of a simple witness, and confers certain rights on the person to whom it applies.
A hearing under the status of assisted witness means that there is evidence in the investigating judge's file, i.e., evidence suggesting that the assisted witness committed the offense or participated in its commission.
However, accordingto Article 113-8 of the Code of Criminal Procedure, the investigating judge may place the assisted witness under investigation at any time if there is serious or consistent evidence that they have committed the offense.
The judges of the Court of Cassation even ruled that it was possible to place a person residing abroad who had already been heard by the investigating judge as an assisted witness under investigation by registered letter (Crim. May 6, 2015, Appeal No. 14-87.974).
At the end of this hearing, the investigating judge may decide to place the assisted witness under investigation, which is why the assisted witness has the same rights as the defendant, namely the right to have their lawyer present during the hearing and the right to access the case file.
Since the status of assisted witness often consists of a transition period from this status to that of suspect, it is very important to seek assistance from a lawyer specializing in criminal law so that they can explain and help you exercise all your rights during your hearing with the investigating judge in order to avoid being placed under investigation, during which the judge's coercive powers are much greater.
D. The interrogation of the defendant
The judge will be able to question the person he has decided to place under investigation. This person is suspected by the investigating judge, on the basis of serious or consistent evidence, of having committed the offense that is the subject of the criminal investigation, in accordance withArticle 81-1 of the Code of Criminal Procedure.
Since the status of being under investigation grants certain prerogatives to investigating judges, the person under investigation also enjoys certain rights.
In accordance withArticle 116 of the Code of Criminal Procedure, during the initial appearance hearing, the proceedings must be recorded and the defendant has the right to a lawyer, failing which the proceedings will be declared null and void.
It is very important to know that if you are placed under investigation and questioned by the investigating judge, you have every right to remain silent (Crim. February 7, 2014, Appeal No. 16-84.353).
With regard to the conduct of the interrogation, the latter is subject to investigative secrecy, meaning that the presence of a trainee from the National School for the Judiciary who has not taken the oath constitutes a breach of the obligation of investigative secrecy. However, the criminal lawyer must inform the investigating judge of his opposition to the presence of this trainee, failing which the interrogation will be valid (Crim. April 27, 2000, Appeal No. 00-80.420).
Conversely, investigators who participated in the proceedings may attend the interrogation of the defendant (Crim. October 27, 2000, Appeal No. 00-84.596).
There is a hierarchy of status regarding hearings before the judge based on the evidence of your involvement in the commission of the offense. Being placed under investigation is the most serious status, which is why it is no longer referred to as a hearing but as an interrogation.
But it is also the one that gives you the most rights, including the right to remain silent or to request a confrontation with one of the witnesses.
It is essential that you have a lawyer present during your interrogation, not only so that they can help you exercise your rights as effectively as possible, but also because, at the end of the investigation, the judge may request that you be placed in pre-trial detention. It is therefore essential that you havea criminal lawyer present.
The imposition of measures restricting freedom of movementduring criminal proceedings
The investigating judge may, where the defendant faces a criminal penalty or imprisonment, impose restrictions on his freedom of movement, in particular through obligations or prohibitions in accordance with Article 138 of the Code of Criminal Procedure.
For example, the defendant may be prohibited from visiting certain places determined by the investigating judge or the judge responsible for liberty and detention matters.
If the penalty incurred is two years or more, the investigating judge may, without the defendant's consent, place the defendant under house arrest with electronic monitoring pursuant toArticle 142-5 of the Code of Criminal Procedure.
Freedom of movement is one of your most fundamental freedoms, and such restrictions are not insignificant. That is why it is essential that you seek the assistance of a lawyer specializing in criminal law. Your lawyer will be able to challenge these measures that infringe on your freedoms.
Material actsduring criminal proceedings
In addition to hearings, interrogations, and the pronouncement of certain measures that restrict freedom of movement, the investigating judge may carry out any type of action that is useful in establishing the truth, including certain actions that are also found in flagrante delicto or preliminary investigations.
A. Search and seizure measures
Indeed, the investigating judge may, with the assistance of the judicial police, carry out searches and seizures of property in accordance with Articles 92 et seq. of the Code of Criminal Procedure.
Searches conducted during the investigation are subject to the same rules as those conducted during the flagrante delicto investigation. This means that the judge does not need to obtain the consent of the person at whose premises the search is being conducted.
However, the judge may not conduct searches outside of legal hours pursuant toArticle 59 of the Code of Criminal Procedure.
In addition, if the person at whose home the search is taking place is absent, they must appoint a representative to be present during the search and, where applicable, the investigating judge will carry out the search in the presence of two witnesses in accordance withArticle 57 of the Code of Criminal Procedure.
A search is an investigative measure that can be considered particularly invasive, as it greatly infringes on your privacy. It is therefore essential to ensure that this investigative measure has been carried out in full compliance with the rules governing it.
That is why, as soon as your home or workplace is searched, it is very important that you contact a criminal lawyer in order to prepare your defense as effectively as possible following this operation.
B. Telephone tapping and geolocation measures
In addition to search measures,Articles 100 et seq. of the Code of Criminal Procedureallow the investigating judge to resort to wiretapping in cases where the offense being prosecuted is punishable by at least two years' imprisonment.
Or, pursuant to Articles230-32 to 230-42 of the Code of Criminal Procedure, the option to use geolocation measures. Both measures are planned for a renewable period of four months.
Due to the particularly intrusive nature of telephone tapping and geolocation measures and the time limits governing them, it is in your best interests to consult a criminal lawyer as soon as possible so that they can review and verify how these investigative techniques have been used.