French Criminal Procedure: Juge d'Instruction, Garde à Vue, and Assises System

French criminal procedure is governed by the Code de procédure pénale (CPP), which establishes the framework for the investigation, prosecution, and trial of criminal offences. French criminal procedure is characterised by its mixed inquisitorial-adversarial nature, the central role of the juge d’instruction (examining magistrate) for serious cases, the pre-trial detention regime, and the distinctive cour d’assises system for the most serious crimes. The procedure has been significantly reformed in recent decades to strengthen the rights of the defence and to comply with the European Convention on Human Rights.

The Investigating Phase

French criminal procedure distinguishes between the investigation phase (enquête) and the trial phase (jugement). The investigation is conducted by the police under the supervision of the Procureur de la République (public prosecutor) or, for serious cases, by the juge d’instruction. The investigation gathers evidence, identifies suspects, and determines whether there is sufficient evidence to bring charges.

The police investigation (enquête préliminaire) is the most common form of investigation. The police investigate under the supervision of the prosecutor, who decides whether to pursue the case. The garde à vue (police custody) allows the police to detain a suspect for questioning for up to 48 hours (longer for certain offences). The suspect has the right to be informed of their rights, to have a lawyer present, and to remain silent.

The Juge d’Instruction

The juge d’instruction (examining magistrate) is a distinctive feature of French criminal procedure. The juge d’instruction is an independent judicial officer who supervises the investigation of the most serious crimes and certain complex cases. The juge d’instruction has coercive powers, including the power to issue search warrants, to order telephone intercepts, and to place suspects under judicial supervision or pre-trial detention.

The juge d’instruction conducts an inquisitorial investigation (instruction), gathering evidence for and against the suspect. The suspect may be charged (mise en examen) if there is serious or consistent evidence of guilt. The juge d’instruction decides at the end of the investigation whether to send the case to trial, to dismiss the charges, or to issue a further order.

The role of the juge d’instruction has been controversial. Critics argue that the combination of investigative and judicial functions violates the principle of judicial impartiality. The juge d’instruction is sometimes described as the “most powerful judge in France.” However, the system has been defended as necessary for the effective investigation of complex cases.

Garde à Vue

The garde à vue (police custody) is a procedure that allows the police to detain a person for questioning for up to 48 hours. The initial period is 24 hours, which may be extended by a further 24 hours with the authorisation of the prosecutor or the juge d’instruction. For certain serious offences, the period may be extended further.

The person in garde à vue has the right to be informed of the nature of the suspected offence, to have a lawyer present during questioning, to be examined by a doctor, and to contact a third person. The right to have a lawyer present was recognised by the Law of 15 April 2011, following the decision of the European Court of Human Rights in Brusco v France (2010). The person also has the right to remain silent, which was introduced by the Law of 15 April 2011.

Contrôle Judiciaire

Contrôle judiciaire (judicial supervision) is an alternative to pre-trial detention. The juge d’instruction or the juge des libertés et de la détention may impose conditions on the suspect to ensure that they appear for trial and do not interfere with the investigation. The conditions include: reporting to the police at regular intervals; depositing a passport or other travel document; providing a surety (cautionnement); refraining from contacting certain persons; and submitting to medical treatment.

The contrôle judiciaire may be modified or terminated by the judge at any time. The suspect may apply for the variation of the conditions. The failure to comply with the conditions may result in the imposition of pre-trial detention.

Détention Provisoire

Détention provisoire (pre-trial detention) is the confinement of a suspect before trial. The detention is ordered by the juge des libertés et de la détention (JLD) on the application of the juge d’instruction or the prosecutor. Pre-trial detention is the exception rather than the rule: it may be ordered only when it is necessary to preserve evidence, to prevent pressure on witnesses, to protect the suspect, to prevent the continuation of the offence, or to ensure that the suspect remains available for trial.

The duration of pre-trial detention is limited by law. For misdemeanours (délits), the maximum duration is generally four months, extendable up to one year (two years for certain offences). For crimes, the maximum duration is generally one year, extendable up to two years (three years for certain serious crimes). The suspect may appeal the detention order.

The Assises System

The cour d’assises is the court that tries the most serious crimes (crimes), including murder, rape, and other serious violent offences. The cour d’assises sits in each department and is composed of professional judges and lay jurors. The court has exclusive jurisdiction over crimes, which are the most serious category of offences under French criminal law.

The cour d’assises is composed of three professional judges (the president and two assessors) and six lay jurors (or nine in certain cases). The jurors are randomly selected from the electoral rolls and serve for a limited period. The president of the cour d’assises is a senior judge from the Cour d’appel.

The procedure before the cour d’assises is oral and adversarial. The president conducts the examination of the accused and the witnesses. The prosecutor and the defence lawyers participate actively. The accused may be represented by a lawyer and has the right to remain silent. The verdict is reached by the judges and jurors deliberating together.

Voies de Recours

The parties have several avenues of appeal. The most common is the appeal to the Cour d’appel, which re-examines the facts and the law. The appeal from the tribunal correctionnel (the criminal court for misdemeanours) and the tribunal de police (for petty offences) is heard by the chambre des appels correctionnels of the Cour d’appel.

Appeals from the cour d’assises are heard by the cour d’assises d’appel, composed of three professional judges and nine jurors. The appeal re-examines the case fully, and the appellate court may impose a more severe sentence.

Pourvoi en Cassation

The pourvoi en cassation (appeal in cassation) is an appeal to the Cour de cassation on questions of law only. The Cour de cassation may quash the lower court’s decision if it finds a legal error and may remand the case. The pourvoi is available to both the prosecution and the defence.

The ground for the pourvoi includes: violation of the law; lack of jurisdiction; procedural irregularity; and lack of reasons. The Cour de cassation may quash the decision in whole or in part. If the decision is quashed, the case is remanded to a different court of appeal or, in certain cases, the Cour de cassation may render the final decision.

The Rights of the Defence

The rights of the defence have been progressively strengthened by legislation and by the European Convention on Human Rights. The suspect has the right to be informed of the charges, to have access to a lawyer, to have adequate time and facilities to prepare the defence, to examine witnesses, and to appeal. The Law of 15 April 2011 strengthened the rights of the person in garde à vue, and the Law of 3 June 2016 strengthened the rights of the suspect during the investigation and trial.

The European Court of Human Rights has been a significant driver of reform. The Court has found violations of Article 6 (fair trial) in numerous French cases, leading to changes in the law of garde à vue, the role of the juge d’instruction, and the independence of the parquet. French criminal procedure continues to evolve in response to European human rights standards.