French Criminal Procedure: The Code of Criminal Procedure and the Judicial Investigation

French criminal procedure is governed by the Code of Criminal Procedure (Code de procédure pénale, CPP), enacted in 1958 and substantially reformed on multiple occasions. The procedure follows a mixed inquisitorial-adversarial model, combining a formal judicial investigation phase for serious offenses with an oral, adversarial trial. The system is characterized by the prominent role of the juge d’instruction (investigating magistrate), a distinctive institution with no direct equivalent in common law systems. The procedure is structured around three phases: investigation (enquête), formal judicial investigation (instruction), and trial (jugement), with extensive rights of appeal.

The Investigation Phase

Criminal investigations in France begin with a preliminary inquiry (enquête préliminaire), conducted by the judicial police (police judiciaire) under the supervision of the public prosecutor (procureur de la République). The preliminary inquiry is the most common form of investigation, handling the substantial majority of cases. The police may gather evidence, interview witnesses, and conduct searches with the consent of the occupant. The prosecutor issues instructions to the police and may authorize coercive investigative measures.

In cases of flagrant delict (flagrant délit) — where the offense is being committed or has just been committed — the police have expanded powers. They may conduct searches without individual consent, place the scene under seal, arrest and detain suspects, and compel the attendance of witnesses. The flagrant delict procedure is governed by Articles 53–74 of the CPP and is designed to enable rapid police response to freshly committed offenses. The expanded powers are justified by the urgency of preserving evidence and preventing further offending.

The preliminary inquiry has been the subject of extensive reform following European Court of Human Rights judgments. The Salduz judgment (2008) required that suspects have access to counsel during police questioning, leading to major reforms of the garde à vue (police custody) regime in 2011 and 2014. Further reforms have strengthened the rights of suspects during the preliminary inquiry, including the right to remain silent, the right to have a lawyer present during questioning, and the right to access the case file.

The Garde à Vue Regime

The garde à vue is the period during which a suspect is held in police custody for questioning. It is governed by Articles 62–78 of the CPP. The regime has been substantially reformed since 2011 to bring it into conformity with the European Convention on Human Rights. A person held in garde à vue must be informed of the nature of the offense under investigation, the reason for their detention, and their rights. The suspect has the right to remain silent (droit au silence), to have a lawyer present during questioning, and to communicate with family.

The maximum duration of garde à vue is 24 hours, renewable once for a total of 48 hours with the prosecutor’s authorization. For serious offenses (organized crime, terrorism, drug trafficking), the duration may be extended to 96 hours or more with the authorization of the juge des libertés et de la détention. The suspect has the right to medical examination. Minors are subject to special rules providing additional protections, including mandatory legal representation and shorter maximum duration.

The 2011 reform, enacted in response to the Salduz judgment, transformed the garde à vue regime. Before the reform, suspects did not have the right to counsel during questioning. The reform granted the right to a lawyer from the beginning of garde à vue and during questioning, with the lawyer able to consult the case file and attend interrogations. The 2014 Loi sur la garde à vue further strengthened rights, requiring that suspects be informed of their right to remain silent and that interrogations be audio recorded.

The Juge d’Instruction

For serious crimes (crimes) and complex délits, the prosecutor may request the opening of a formal judicial investigation (information judiciaire) before a juge d’instruction. The investigating magistrate is an independent judicial officer who conducts a neutral investigation, gathering evidence for and against the suspect. The role combines investigative and judicial functions: the juge d’instruction directs the investigation, issues warrants, questions witnesses and suspects, and ultimately decides whether the case should proceed to trial.

The juge d’instruction has extensive powers. They may issue arrest warrants (mandat d’arrêt), search warrants (mandat de perquisition), and orders for pre-trial detention (mandat de dépôt). They may appoint expert witnesses, order telecommunications intercepts, and conduct reconstructions of the offense. The investigation results in a formal case file (dossier), to which the parties have access. The juge d’instruction may place the suspect under judicial supervision (contrôle judiciaire) — imposing conditions such as reporting requirements, travel restrictions, or bail — or order pre-trial detention (détention provisoire) in serious cases.

The role of the juge d’instruction has been the subject of longstanding debate. Critics argue that combining investigative and judicial functions creates a structural bias — the juge d’instruction who orders the investigation may be reluctant to close the file without sufficient evidence. The 2011 and 2021 reforms reduced the role of the juge d’instruction in most cases, transferring primary investigative responsibility to the prosecutor. However, the juge d’instruction remains mandatory for the most serious crimes and continues to be a distinctive feature of French criminal procedure.

The Rights of the Suspect

The suspect (mis en examen) has extensive rights during the instruction. These include the right to counsel throughout the investigation, the right to access the case file (dossier), the right to request investigative acts, the right to be heard by the juge d’instruction, and the right to remain silent. The suspect may also apply to the chambre de l’instruction (the investigation chamber of the court of appeal) to challenge the legality of investigative acts or to seek review of pre-trial detention.

The partie civile (civil party) is a distinctive feature of French criminal procedure. Victims may join the criminal proceedings as civil parties, enabling them to seek damages and participate in the investigation. The civil party has the right to access the case file, to request investigative acts, and to be represented by counsel. The partie civile may also initiate criminal proceedings independently by filing a complaint with the juge d’instruction if the prosecutor declines to act. This integration of civil compensation with criminal prosecution is more extensive than in most common law systems.

The Trial

Cases proceed to trial according to their severity, following a three-tier classification. Contraventions (minor offenses, such as traffic violations) are tried by the tribunal de police. Délits (intermediate offenses, such as theft and assault) go to the tribunal correctionnel. Crimes (serious offenses, such as murder and rape) are tried by the cour d’assises.

The trial in the tribunal correctionnel is oral and public. The presiding judge examines the defendant, witnesses, and experts. The prosecution presents its case, followed by the civil party, and then the defense. The court deliberates and delivers a reasoned judgment. The cour d’assises is composed of three professional judges and six jurors (nine on appeal), who deliberate together on guilt and sentence. Since 2011, the cour d’assises has been required to deliver reasoned verdicts, aligning it with the European Court of Human Rights requirements for fair trial.

Appeals

Appeals from the tribunal correctionnel and tribunal de police lie to the cour d’appel, which re-examines both fact and law (appel réformation). Appeals from the cour d’assises lie to the cour d’assises d’appel, composed of three professional judges and nine jurors. A further appeal on questions of law lies to the Court of Cassation (Cour de cassation), which may quash the judgment and remit the case to a court of the same level. The Court of Cassation ensures uniform interpretation of criminal procedure and substantive criminal law across the French judicial system.

The pourvoi en cassation is available to both the prosecution and the defense, though the prosecution’s right to appeal acquittals is limited. The Court of Cassation does not re-examine the facts; its jurisdiction is limited to questions of law. If the Court finds an error of law, it quashes the judgment and sends the case to a different court for retrial. The arrêt de cassation may involve a cassation sans renvoi (quashing without remittal) where the Court finds that the proceedings cannot be remedied, effectively ending the case.