Article 706-73

This article is a reminder article 706-73 the importance of adversarial proceedings and the rights of the defense, as expressed by the Criminal Division of the French Supreme Court in its ruling of June 7, crim, article 706-73. In the course of article 706-73 preliminary investigation into drug trafficking, an individual was referred to a Magistrates' Court and then convicted on appeal of aggravated violence, drug offences, possession of goods dangerous to health without justification, repeat offences, refusal to comply and hit-and-run.

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Article 706-73

He is the only person, together with those persons mentioned under article 57 and any persons upon whom he calls pursuant to article 60, to be allowed to examine the papers or documents electronic data before proceeding to seize them. However, he has the duty first to initiate any step appropriate to ensure the observance of professional secrecy and of the defendant's rights. Any article or document seized is immediately entered on an inventory and placed under official seals. However, if it is difficult to make such an inventory on the spot, they are put under temporary closed official seals until such time as an inventory can be taken and they can be placed under final official seals. This is done in the presence of the persons who have witnessed the search pursuant to the conditions set out by article The seizure of any electronic data necessary for the discovery of the truth is carried out by placing in the hands of justice, either the physical medium holding this data or a copy of the data made in the presence of those persons present at the seizure. If a copy is made, then on the orders of the district prosecutor, any electronic data the possession or use of which is illegal or dangerous to the safety of persons or property may be permanently erased from any physical medium that has not been placed in judicial safekeeping. With the agreement of the district prosecutor, the judicial police officer only allows the seizure of articles, documents or electronic data useful for the discovery of the truth. Where the seizure involves money, ingots, property or securities, the preservation of which in their original form is not necessary for the discovery of the truth, the district prosecutor may authorise their deposit in the Deposit and Consignment Office or at the Bank of France. Where the seizure involves forged euro bank notes or coins, the judicial police officer must send at least one example of each type of note or coin suspected of being false to the national laboratory authorised for this task, for analysis and identification,. The national laboratory may open the official seals. It draws up an inventory in a report which must mention any opening or re-opening of the seals. When these operations are completed, the report and the sealed objects are put into the hands of the clerk of the appropriate court. This transfer is recorded in an official report. The provisions of the previous paragraph do not apply where only one example of a particular type of suspect banknote or coin exists and it is needed for the discovery of the truth.

More generally, the position of the Criminal Division, article 706-73, which has ruled for the first time here on the question of whether searches in the absence of the accused owner must be justified, is in line with a classic trend article 706-73 it has had occasion to reiterate previously, particularly in relation to night-time searches: - " 7.

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Article 706-73

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:. An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. An opinion is not objectionable just because it embraces an ultimate issue. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.

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Where this is impossible, the judicial police officer has the duty to ask him to appoint a representative of his choice; failing this, the judicial police officer will appoint two witnesses, chosen for this purpose from among persons who are not under his administrative authority. The Examining Magistrate's Chamber dismissed the application for a declaration of nullity on the grounds that the search authorisation given by the Public Prosecutor "necessarily falls within the scope of the provisions of article of the Code of Procedure". A decree of the Conseil d'Etat determines the mode of enforcement of the present article. As far as aids other than those referred to in Article 1 are concerned, the provisions of Article 93 1 and the first sentence of Article 93 3 of the treaty establishing the European Economic Community shall apply. Article Under penalty of nullity, the procedures provided for by articles to may have no other purpose than investigating and establishing the offences mentioned in the ruling by the liberty and custody judge or the investigating judge. This article is a reminder of the importance of adversarial proceedings and the rights of the defense, as expressed by the Criminal Division of the French Supreme Court in its ruling of June 7, crim. Article 60 Where there is occasion to carry out any technical or scientific examination, a judicial police officer has recourse to all qualified persons. It follows that a verbal authorisation given by this magistrate is null and void, even if it is followed, after the act has been carried out, by the formalisation of a written and reasoned order Crim. In this case, the Cour de Cassation found that the public prosecutor had merely authorised the search in the absence of the individual on the sole grounds that the individual's behaviour could legitimately give rise to fears of escape. Homepage Insights Criminal procedure: the need to justify the respondent's Article The investigating judge or the judicial police officer appointed by him may require any qualified agent of a service or institution placed under the authority or supervision of the Minister in charge of telecommunications, or any qualified agent of a network operator or authorised purveyor of telecommunication services to set up an interception device.

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In its ruling, the Criminal Division began by pointing out that, while the provisions of article of the Code of Criminal Procedure do provide for a search to be carried out in the absence of the person concerned, this is first and foremost a derogation from the principle set out in article 57 of the Code, which states that:. Document R The judge or prosecutor and the president or his delegate are the only ones who have the right to be informed about documents discovered during a search with a view to their possible seizure. That these procedures reveal offences other than those mentioned in the ruling by the liberty and custody judge or the investigating judge does not constitute grounds for nullity in proceedings for related offences. Article Where, in the course of judicial proceedings or of checks referred to in article of the Rural Code, the decision has been made to seize or confiscate one or more live animals, for whatever reason, the district prosecutor attached to the district court with jurisdiction over where the offence took place or, if he is seised of the case, the investigating judge, may place the animal in a specially designated holding place until the offence has been tried. The provisions of the previous paragraph do not apply where only one example of a particular type of suspect banknote or coin exists and it is needed for the discovery of the truth. More generally, the position of the Criminal Division, which has ruled for the first time here on the question of whether searches in the absence of the accused owner must be justified, is in line with a classic trend that it has had occasion to reiterate previously, particularly in relation to night-time searches:. If a person who is the subject of a search warrant is not found during the course of the inquiry, and if the district prosecutor orders the opening of an investigation into an unnamed person, the search warrant remains valid for the duration of the investigation, unless it is revoked by the investigating judge. In cases where the animal was entrusted to a third party, the owner can submit a demand for the restitution of the animal to the judge appointed in the second paragraph. A decree of the Conseil d'Etat determines the mode of enforcement of the present article. The requirements of the preceding paragraph do not apply in cases where there is only one suspected fake coin or note, and this is needed to establish the truth.