Procedures of Search and Seizure in the French Criminal Justice System

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Institute of Law Procedures of Search and Seizure in French Criminal Justice system: A Comparative Analysis Comparative Criminal Procedure Procedures of Search and Seizure in Franch Criminal Justice system a Comparative Analysis Abstract Code de Procedure penale is one part of Franch Criminal Justice Administration framework. In the French system it is portrayed this as a mixture of the inquisitorial as well as adversarial models. The Sub Section 1 contains the procedural aspect of inspection of premise, inquiry, search and seizure. To the degree that expert judges (either the prosecutor (procureur) or the examining judge (juge d'instruction)) will practice some level of oversight/control over the activities of the police, take an interest in the examination, and take the choice to indict, then the system can be depicted as falling soundly inside the inquisitorial convention. Likewise, the fact that the case spins around a composed case dossier which is developed in the pre-trial stage and is utilized by the trial and appellate courts is consistant with the inquisitorial model. Then again, the practice in some cases strays from the model. For instance, there are numerous situations where, to a great extent for resourcing reasons, the police exercise critical self-sufficiency in the examination and readiness of a case for trial. In a comparative vein, the level of legal control over the investigative stage is variable because of the police not continually advising the procurer's office of all offenses or neglecting to inform in an opportune manner. Procedure of search and seizure are very well defined in detail by the Code de procedure penale. In the process of prelimnary enquiry, search and seizure may be done by the officiers de police judiciaire (OPJ), on the condition that the individual whose house is sought assents. During a prelimnary judicial examination, inquiry and seizure are completed by the juge d'instruction, or the OPJ following up on his orders. A few statutes discredits from these standards by crediting power to search to certain other public authorities. For instance, custom officers can open safety deposit boxes or inquiry somebody's home. In like manner, fraud and competition officers can perform search and seizure for gathering the evidences of fraud. Introduction Search and seizure are regulated in great detail by the Code de procedure penale. In the course of preliminary enquiry, search and seizure may be carried out by the officiers de police judiciaire (OPJ), on the condition that the person whose house is searched consents.[1] During a preliminary judicial investigation, search and seizure are carried out by the juge d’instruction, or the OPJ acting on his orders. Some statutes derogates from these principles by attributing search powers to certain other public officials. For example, custom officers can open safety deposit boxes or search someone’s home. Likewise, fraud and competition officers can perform searched for evidence of fraud. Despite the fact that there is no limitation on the spots in which Search and seizures may be directed, they may not begin before 6 am or after 9 pm. On the other hand, a couple of exemptions must be noted. Case in point the OPJ can conduct search operations during the evening in places like brothels or in places where drugs are misused or manufactured.[2] In any act of search and seizure a witness is required to testify the legality of the whole operation[3], and the person who is subjected to be searched should be present there[4], this provision finds its mention in the law. if the property being searched belong to a person under duty of professional secrecy, for example an advocate or a medical doctor, the officer conducting the search must previously inform the president of local Bar or the president of the medical association of the department, who is entitled to attend. The correspondence between the lawyers being searched and the accused can never be seized. Any object removed must have been seized in the interest of discovering the truth. Also, as soon as custody of these items is no longer necessary for the investigation, restitution can be effected by the judge either on his own initiative or following the request of the owner.[5] Examination of Body and Mind In general these examinations are carries out by an expert even if expert reports can also concern objects, such as a document, a machine or any other object. It is the judge, in effect the juge d’instruction, who nominates the experts. In principles, he names one, except that he may nominate two or more if circumstances justify it. There are two particular situations where different rules apply: where fraud is being investigated, the accused nominates one expert, the judge nominating the other (the system of contradictory expert reports); in cases of urgency, where observations or examination cannot be delayed, the OPJ can appoint any qualified person as an expert. The expert has fairly important powers at his disposal. He may hear anyone apart from the accused. He can even hear from the letter, but with certain differences. The expert can hear him if it is a matter of a psychiatric reports. In all other cases, the expert must ask the authorization of the judge before hearing the accused. The general principle in French law indeed is that suspect can only be questioned by a judge, and not by an OPJ or an expert. In any case, the expert has to liaise with the judge. Once he has finished the expertise, the expert submits his report to the judge who must notify the various parties of its conclusions.[6] Interference with the right to privacy Two questions, which do not create the same degree of difficulty, arise: the seizure of letters and telephone tapping.
  1. Letters
The seizure of letters was contested over a lengthy period because of the scope of the right to privacy. Finally, it was admitted by case-law in 1959, and the Code de procedure penale confirmed the solution by recognizing that the practice of seizure could apply to papers, documents or other objects and to objects and documents useful in the discovery of the truth. In practice, the juge d’instruction who wishes to seize someone’s post sends a requisition to the postal service. We must, however remember that correspondence addressed to, or sent by, lawyer or escapes all seizure.[7]
  1. Telephone
The question of telephone tapping is more delicate in the absence of express regulation of the matter in French law. Yet, such tapping occurs daily in France on the basis of art. 81 al. 1 CCP on the authority of which, juge d’instruction “carries out, in accordance with the law, any investigation which he considers necessary to discover the truth. The decision which allowed telephone tapping in principle dates back to 1980. It was a very clear decision which imposed two conditions at the most: an absence of fraud and no violation of the rights of the accused. Other decision followed, but question revived. Firstly the Cour de Cassation held that telephone tapping by OPJ was forbidden, Only the juge d’instruction being able to order it. Thereafter, the European Court in Strasbourg condemned France, not for its absence of legislation, since according to European court, case law is a source of positive law, and France has plenty of it, but because the decision of the Cour de Cassation do not deal with every aspect of telephone tapping, such as, for example, the question as to what has to be done with the tapes after the trial, etc.[8] CONCLUSION The good blend of inquisitorial and adversarial system found in the Franch Criminal Justice Administration System. Provision regarding search and seizure are strictly scrutinized on the base of right to privacy. Though right to privacy is not absolute in nature yet it is regarded with utmost respect as other fundamental rights of the citizens. When we compare it with the Indian scenario of regulations related to search and seizure, we find no regulations regarding the search of premise though some guidelines are there regarding the personal body search. Women cannot be searched by male policemen and cannot be arrested between sunset and next sun rise. Absence of specific regulations regarding the Right to privacy in fact jeopardizes the right to privacy enshrined in umbrella fundamental rights of the citizen of India. Regarding restitution of the seized articles there is in practicality there are no provisions which makes it impossible to get the things back after their requirement is finished. In concluding remarks we can say that as Indian legal system is actually a stock pile of different regulation from various countries so here it is requirement in the present that some good developments in the other legal systems should be adopted in our system also. 1
[1] Prof. Jean Pradel, “Criminal Procedure Systems in the European Community”, Chapter 4 – France page no.120. [2] ibid [3] Article 96 of Code de procedure penale [4] Ibid. Article 76 [5] id. Article 99 [6] Prof. Jean Pradel, “Criminal Procedure Systems in the European Community”, Chapter 4 – France page no.121 [7] Ibid. [8] Id. 122
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