Institute of Global Law

On 23 November 2004, the Criminal Division of the Cour de cassation judged that provisions relating to the European arrest warrant did not fall within the scope of Article 7 of the European Convention on Human Rights, which forbids the retroactive application of criminal law to the detriment of the accused. Indeed, the Court considered that Article 7 only applies to provisions relating to the execution of sentences, which is not the case of provisions on the European arrest warrant.

On 1 October 2004, the European Parliament indicated that it would deal with a petition of the French Bar against the second Directive on Money Laundering. The Directive imposes an obligation on counsel to bring their clients to the attention of the authorities on the basis of a simple suspicion.

On 1 October 2004, the most important provisions of criminal procedure of the 9 March 2004 Act on the adaptation of justice to developments of crime became effective. These provisions clarify rules relating to warrants and orders, and create a procedure of plea bargaining. They also provide efficient measures to fight against organised crime, such as operations of surveillance and infiltration, extension of police detention and night searches of premises.

On 5 October 2004, the Criminal Division of the Cour de cassation judged that an alert given within the Schengen Information System, together with the information required by Article 695-13 of the French Code of Criminal Procedure (relating to the person who is wanted, the offences he/she committed and his/her condemnation), was equivalent to a European arrest warrant.

A decree of 25 October 2004 provides that the offence of drunken driving is constituted where a person has a blood alcohol content of at least 0,2‰.

On 5 October 2004, the Criminal Division of the Cour de cassation came to a decision on the issue of liability in the case of a person who had been injured in a road accident and who died some days later at hospital as a result of a nosocomial infection. The Criminal Division invalidated the decision of the Court of Appeal, which had condemned the driver of the vehicle, on the grounds that it was not clear whether or not the infection was the only cause of death.

The new Minister of Foreign Affairs, Michel Barnier, submitted on 2 April 2004 a proposal for ratification of an international Convention on international cooperation against crime (Convention of 29 May 2000 on Judicial Cooperation in Criminal Matters).

On 10 March 2004, a new Act adapting the judicial process to new forms of criminality was published in the Journal Officiel after many amendments and criticisms (see Archives).

The Government’s text on school attendance was published in the Journal officiel on 20 February 2004. Parents whose children fail to attend school will face a 750 Euros fine. But the fine will only be ordered once conciliation between parents, children and headmasters has been attempted and failed. The text does not increase parents’ liability. Under a 1966 text, parents were already liable to a 1000 francs fine and under a 1959 text, faulty parents could be deprived of family benefits. This latter possibility – never applied in practice – was removed by the 2 January 2004 Act on the Protection of Children. The fine of 750 Euros is thus the only penalty that parents now face.

The Upper House of the French Houses of Parliament (Sénat) adopted on 23 January 2004, on second reading, a text on the adaptation of the judicial system to the evolution of crimes. French Senators rejected the amendment (adopted by the Lower House on 27 November 2003) criminalizing the accidental termination of a woman’s pregnancy but called for a general debate on the issue of the infliction of bodily harm to a woman resulting in the loss of her unborn child. Amongst the new dispositions adopted, many are rooted in Common Law traditions, like the proposed possibility (for certain offences) to plead guilty in exchange of a lesser conviction. The proposition has however attracted much opposition from lawyers’ associations who are concerned about the protection of defendants’ rights and the presumption of innocence. See for example, www.cnb.avocat.fr; www.syndicat-mag.org; www.Idh-france.org.

A working document on the prevention of crimes was made public on 16 December 2003. Firstly, powers of “maires” would be increased. They would be notified by school headmasters of local pupils’ absences at school and would be able to offer support courses for parents who face difficulties in bringing up their children. Secondly, litigation between landlords and tenants would be fast-tracked. Official reports of nuisance – now made by an appointed professional (a police officer or a huissier) – could be made by the landlord himself, provided the Attorney (Procureur) grants him the power to do so. On 17 December 2003, a group of French Lawyers demonstrated against the proposed text, expressing fears of a severe decrease in the protection of the defendant’s rights and in the quality of judicial proceedings.

The Law Commission of the French Parliament adopted on 19 November 2003 a set of measures designed to help people re-integrate into society after serving a prison sentence. One of these measures is the proposed creation of a semi-free status or system of electronic surveillance over the last six months of detention (for prison sentences not exceeding five years) or the last three months of detention (for prison sentences not exceeding two years).