Penal sanction in France

The penal sanction in France is the answer of the State against the author of an accused behavior.

The penal sanction is not distinguished from the other sanctions, for example civil or disciplinary, that by the fact that they are envisaged in the Penal code and are pronounced by a penal jurisdiction.

One distinguishes the penal sanction incurred according to the penal standard from the penal sanction imposed indeed by the judge.

Preliminary distinction

The sorrows can be classified between principal, additional or complementary sorrows.

Principal sorrow

The principal sorrow is the sorrow of reference. It makes it possible to qualify the infringement of penal and to classify it between Contravention, Délit or Crime.

Complementary sorrow

The complementary sorrow only reveals a penal character associated with a penal principal sorrow.

Thus prohibition to carry on an economic activity is a penal complementary sorrow of the personal bankruptcy but can also be marked by the Bankruptcy court and lose the penal character.

Pains additional

The additional sorrow is an implicitly applicable sorrow automatically and consequently of the principal sorrow. These sorrows were excluded in the new French Penal code but remain present for the penal sanctions contained in the other Codes.

Sorrows applicable to the natural persons

(articles 131-1 and following of the Penal code)

Having established the reality of an infringement and his imputability with a punishable person, the penal judge will have to choose a sanction.

The Principe of legality of the sorrows forces to him to limit its choice to the pallet offered by the law, which class sanctions in various categories: principal sorrows, complementary sorrows, additional sorrows…

The principle of legality limits the judge as for the quantum of the marked sorrow: the law fixes a maximum which is binding to the judge, by holding account if necessary of the existence of a cause of aggravation.

Difficulties will be able to appear in the presence of a plurality of infringements.

After judgment, the execution of the sorrow could be disturbed by the intervention of the regulation, a grace or an amnesty.

Qualification of the infringement

The applicable sorrow depends on the qualification of the infringement, in crime, offense or infringment.

Crimes

The Crime S, i.e. the punished infringements of a custodial sentence equal to or higher than 10 years, can be punished, under article 131-1 of the Penal code, of a principal sorrow of imprisonment which can be associated by the text with incrimination with a fine. In this case, Court of Assizes with the freedom of the choice of the applicable principal sorrow.

The Court of Assizes will be able to also use the complementary sorrows envisaged by the text of incrimination: deprivation of rights, confiscation, injunction of care… These complementary sorrows cannot be marked as principal sorrow.

Offenses

The Offense S, i.e. the punished infringements of a Imprisonment of a 10 years maximum to more or of a Fine of at least 3.750 €, can be punished of one of the principal sorrows envisaged by article 131-3 of the Penal code: Imprisonment, possibly cumulating with a Fine, or, if the imprisonment is incurred but nonmarked, sorrow of Day-amends, training course of citizenship, Work of general interest, alternative sorrow of article 131-6 or pains complementary to article 131-10 marked on a purely principal basis.

The capacities of individualization of the judge are thus extremely wide with regard to the choice of the sorrow.

It rather can than to pronounce a sorrow, to exempt the delinquent of any sorrow, insofar as the reclassification of the culprit is acquired, that the disorder ceased and that the damage of the victim is repaired. If it appears to the judge that reclassification is in way to be acquired, that the disorder will cease and that the damage will be repaired, it can defer the delivery of the sorrow, for a one year maximum delay, by possibly matching this adjournment of an injunction or a testing period.

The sorrow, if it is marked, can be accompanied by a simple deferment with its execution, provided that the interested party does not have a too heavy penal past (articles 132-30 and following) and that the possibly marked sorrow of imprisonment does not exceed 5 years. The deferment can be partial if it relates to a sorrow of imprisonment. The duration of the deferment is 5 years. If the interested party does not commit any offense during this time, its judgment is famous not avenue.

The judge also has the possibility of pronouncing a deferment with testing period, total or partial, when he pronounces a custodial sentence of less than 5 years, whatever the legal backgrounds of the interested party. The time of test lies between 18 months and 3 years. The deferment can be revoked by the judge of the application of the sorrows in the event of nonrespect of the setting to the test, or by the judge at the time of a judgment with a sorrow of imprisonment for an infringement made after the delivery of the deferment. If the deferment is not revoked, the judgment is famous not avenue. It should be noted that the judge can pronounce, with the agreement of condemned, a TIG as measurement of testing period within the framework of a deferment.

The deferment cannot be marked for all the principal sorrows, even if it is about a sorrow envisaged like pains complementary and not being able, for this reason, to profit from the deferment: on the driving ban, Crim. February 18th, 2004.

The capacities of individualization of the judge find their limits in the obligatory complementary sorrows and the additional sorrows. In fact sorrows follow a judgment automatically, the first being obligatorily pronounced by the judge, the seconds not having to be marked.

The additional sorrows are prohibited today by article 132-17 of the Penal code: “No sorrow can be applied if the jurisdiction expressly pronounced it”.

They cannot thus any more exist but in penal texts not integrated into the Penal code, or be constitutive of administrative measures according to the internal qualification (license at point). The additional sorrows do not apply when the judge, although having recognized the culpability of the interested party, exempted it of sorrow: Crim. February 4th, 2004.

Day-amends

Work of general interest

See also: Work of general interest (France)

Work of general interest, like the training course of citizenship, cannot be marked without the agreement of the interested party. The TIG is one minimum duration 40 hours. Its maximum is 210 hours starting from January 1st, 2005 (240 hours before).

Alternative sorrows

The alternative sorrows with the imprisonment of article 131-6 of the Penal code are sorrows of confiscation or privative or restrictive measurements of rights. They can cumulate between them.

Complementary sorrows

The complementary sorrows aimed to article 131-10 are the confiscations, deprivations of rights and injunctions of care which the text of incrimination can aim expressly. They can be marked like pains principal, in the place of the imprisonment or the fine, or in complementary sorrow, cumulating with them.

Infringments

Infringment in criminal law French

Plurality of infringements

When an offender commits several offenses, it can be in three distinct legal situations: the reiteration, the repetition or the contest of infringements.

Reiteration

The reiteration is the situation, simple, in which a person, definitively condemned for an infringement, makes some another, without being in a state of repetition.

The concept was only one notion empirical until the law of December 12th, 2005, and no codified legal consequence resulted from this. The incurred sorrow remained that provided by the law, with this close the judge, using his capacities of individualization of the sorrow, could condemn more severely than being a firstly-delinquent.

With the law of December 12th, 2005, the legislator devoted the concept, in article 132 - 16-7 of the penal code: “There is reiteration of penal offenses when a person already was condemned definitively for a crime or an offense and commits a new offense which does not answer the conditions of the legal repetition. The sorrows pronounced for the infringement made in reiteration cumulate without limitation of quantum and possibility of confusion with the definitively marked sorrows at the time of the preceding judgment. ”. If this article does nothing but point out the rules of principle of pronounced sorrow, it underlines nevertheless the orientations of the current criminal policy.

Article 132-24 of the penal code, in its last subparagraph resulting from the drafting of the law of March 5th, 2007, attaches to the reiteration of the legal effects to the concept of reiteration: “Out of correctional matter, when the infringement is made in a state of legal repetition or reiteration, the jurisdiction justifies in particular the choice of nature, the quantum and the mode of the sorrow which she pronounces taking into consideration incurred sorrow”.

Repetition

The Récidive is envisaged in articles 132-8 and following of the Penal code. It consists of two terms: a first infringement having given place to final judgment, and a second infringement made within a certain time according to the expiry or the regulation of this first judgment.

The rules differ according to gravity from the infringements.

When the first term is an offense, if the second term is the same offense or an offense which is comparable for him which intervenes within 5 year, the maximum of the sorrows of imprisonment and of fine incurred for the second term is doubled. The offenses compared to the glance of the repetition are on the one hand the principal infringements against the goods: flight, extortion, blackmail, swindle and breach of trust; in addition sexual offenses; finally, certain automobile offenses and in particular involuntary infringements made at the time of the control of a vehicle.

When the first term is a crime or ten years a punished offense of imprisonment and that the second term is a punished offense of the same sorrow, which intervenes in a 10 years deadline, or a punished offense of more than one year, intervening within 5 year, the sorrow incurred for the second term is doubled under the same conditions as previously.

When the first term is a crime or ten years a punished offense of imprisonment and that the second term is a crime, without condition of time, the maximum imprisonment incurred for the second term passes, according to the cases, with 30 years or perpetuity according to whether this crime were normally punished, respectively, 15 years of prison, or of 20 or 30 years

Contest of infringements

The contests of infringements are envisaged by articles 132-2 and following of the Penal code.

The concept of contest of infringement recovers the cases in which an offender commits several offenses before to be definitively condemned for one of them.

One can distinguish within the contests the ideal contest and the real contest. The ideal contest is a fact single, indivisible, likely to receive several penal qualifications. The real contest is consisted several facts distinct constituting from the distinct infringements.

The general rule is that of the not-office plurality of the sorrows of comparable nature.

Thus, if several sentences of emprisonments are incurred, the judge will be able to pronounce only one sentence of emprisonment, within the limit of the highest maximum planned for one of the infringements in contest.

If the infringements in contest are the object of separated continuations, a confusion will automatically take place between the sorrows of comparable nature, with height of the highest maximum incurred for one of the infringements. Condemned can also approach the judge concerning a request for confusion, optional, in the hope to carry out only one sorrow lower to the legal maximum highest.

In the event of separated procedures, it will also be advisable to take care of the compliance with the rule not (a) in idem , which prohibits to sanction several times the same fact. The already judged facts can in no being sanctioned again under another qualification, only or associated with other new facts, except when the law envisages it such as for example in the implementation of the repetition or to usually establish the existence of an infringement.

The rule of the not-office plurality of the sorrows applies only for the sorrows of comparable nature. The sorrows of different nature (pecuniary, privative of right, etc) can cumulate between them, always within the limit of the maximum highest envisaged by an infringement for each category.

In an ideal contest arises a particular difficulty, that of the qualification of the facts. The rule of principle is the highest qualification. For example, a flight made with effraction is constitutive at the same time of simple flight, of worsened flight and housebreaking. Only the qualification of worsened flight and the related sorrow can be retained by the judge in theory. A single fact gives in theory place only to one sorrow: for example, a negligence causing the wounds of several people cannot give place to several judgment according to the gravity of the wounds of each one (Crim. May 11th, 2004).

The Court of appeal admits an office plurality of qualification however when the qualifications are not incompatible and that the protected statutory values are not the same ones, for example if they do not appear in the same book of the Penal code, and a fortiori if they do not appear in the same code.

Recent jurisprudence: the bleaching of the product of an infringement can be made by the principal author of this infringement (Crim. January 14th, 2004)

Regulation, grace and amnesty

Among the events being able to intervene subsequently to marked of the sorrow and disturbing its execution, the three principal ones are: regulation, grace and the amnesty.

Regulation

The regulation of the sorrows is the time after which a sorrow can be carried out more.

The regulation does not carry to in no case obliteration of the judgment; as for the regulation of the obligations in civil law, it is only the execution which is paralyzed.

The time of regulation of the sorrows runs from the date on which the judgment becomes final.

Its duration depends on the gravity of the infringement:

The sorrows pronounced for a Crime are prescribed by 20 years (article 133-2 of the penal code - except exceptions quoted further) The sorrows pronounced for a Délit are prescribed by 5 years (article 133-3 of the penal code)

The sorrows pronounced for a Contravention are prescribed by 3 years (article 133-4 of the penal code against 2 years before January 1st, 2003)

The terms of limitation of the public action are different from the times applicable to the sorrows. The crimes cannot be any more continued by the public ministry after 10 years. The offenses cannot be continued after 3 years and the infringments after 1 year. For certain particularly serious infringements, the legislator planned a derogatory mode. Thus the crimes against humanity are imprescriptible, terrorism and the drug trafficking are prescribed by 30 years for the crimes and 20 years for the offenses. In the same way, the term of limitation of the public action of certain crimes and the offenses made on a minor start to run only as from their majority (articles 7,8 and 9 of the criminal procedure code).

The regulation of the sorrow is stopped by any act of distraint (arrest, seized…) or suspended by the existence of an obstacle in fact (major force) or right (execution of another sorrow).

The regulation of the sorrow does not carry any consequence as for the current liability of the damages, which obey the rules of the Civil code.

Grace

The grace is the exemption of execution of the sorrow. Traditionally, it is about a prerogative of the executive power, and in France she is exerted by Presidential decree of the Republic (article 17 of the Constitution of 1958).

The grace can be individual or collective, partial or total. She intervenes in general when the circumstances let think that one condemned is victim of a miscarriage of justice without the legal ways allowing the revision of the lawsuit, or at the time of particular political events.

The presidential pardon is a habit constitutionalized with the contempt of the principle of separation of the capacities.

Certain legal measurements can be comparable with measurements of grace: raising, by the jurisdiction of judgment, of an additional sorrow for example. But the reduced sentences for good behavior or the release on parole cannot be regarded as graces insofar as they are only the prolongation of the sorrow during a time defined during which the freedom of condemned is not total by far. A repetition during the time of the reduced sentence can involve the revocation of the reduction and the released conditional one has accounts to return on its control (obligations, prohibitions) to the judge of the application of the sorrows by the means of the penitentiary service of insertion and of probation and its bad conduct or its repetition involves also the revocation of the release on parole and a return in detention.

The effect of the graces is limited strictly to the execution of the sorrow. To in no case, the judgment nor the infringement do not disappear. It is what differentiates the graces from the amnesty.

Amnesties

The amnesty is a legislative measure which imposes the lapse of memory while making disappear legally the infringement.

The legislator can decide to amnesty a person or a category of people (amnesties personal), a whole of facts by circumscribing one period and a place (in connection with the Guerre of Algeria for example) or a category of infringement (for example road infringements except those having resulted in wounds or the death of a person): they will be real amnesties.

The Parliament can also choose, among the criteria allowing to profit from the amnesty, the duration of the sorrow or its nature. Ipso facto, the amnesty is subordinate to the decision of the judges: one can speak about legal amnesty, even if the origin of measurement remains legislative.

The effects of the amnesty are radical: obliteration of the judgments, re-establishment of a former deferment which would have been revoked… The amnesty does not carry restitution of the poured fines, nor repair for the sorrow already carried out. The amnestied sorrow is even unobtrusive police records.

The amnesty makes disappear the punishable character from the facts concerned, by often sanctioning fine the recall of the amnestied sanctions, but does not make disappear the facts themselves, which can found a civil proceeding in particular. This limitation of the effects of the amnesty is legitimate to ensure respect of the rights of the thirds.

Amnestying grace

This current expression indicates actually a Amnistie granted by Presidential decree of the Republic (what gives him the appearance of a grace). In 1965, the “amnestying grace” could benefit only war veterans and war victims. In 1974 the people were added who “had been distinguished in an exceptional way” in the culture or sciences. Appeared, in 1981, the fields humanitarian or economic, then 2002 (Law n° 2002-1062 of the bearing August 6th, 2002 amnesties) included the sportsmen. The interested party himself must make of it the request, this one is granted by a decree not published.

Sorrows applicable to the moral persons

A moral person found guilty of an infringement cannot, in the absence of physically being able to carry out the incurred principal sorrows, to be condemned that to fines as an alternative sentence.

See too

References

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