2008-10-28

Glossary of French Legal Terms

Arme par destination (Weapon defined by purpose to which it is put"): Any object that may be used to wound somebody or destroy something, regardless of the original function for which it may have been designed. A person may thus be charged for possession of a glass bottle or a stretch of hose-pipe, for example, on the grounds that this object is "usable as a weapon".

Arrêté Préfectoral de Reconduite à la Frontiäre (APRF): An administrative order of expulsion imposing an obligation to quit French territory immediately and enabling the police authority ("Préfecture") to initiate expulsion proceedings. There are two alternative forms of APRF. Either you are arrested without a valid French resident's permit, in which case an APRF is delivered at the police station and you have 48 hours within which to lodge appeal before the Administrative Tribunal (TA); or an APRF is delivered to you at home, after expiry of an Invitation à Quitter Le Territoire (Invitation to Quit French Territory), in which case you have 7 days to lodge an appeal at the TA. In the latter case, the APRF is sent by registered post. If not collected, the Prefecture will assume that it has been received and no appeal is possible. You are therefore advised to collect any registered post at the last possible moment, in order to gain time (The Post Office keeps registered letters for 15 days). An appeal lodged before the TA is suspensive, meaning that you cannot be deported as long as the appeal hearing has not been held. Any order ("arrêté") against which no appeal has been lodged is final. However, you cannot be detained twice upon the same order.

Assignation à residence (House Arrest): Concerns people without valid residents' papers. This is one of three penalties at that a magistrate at the aliens' tribunal ("Juge du 35bis") may apply [The three penalties involved are i) detention prolonged, ii) release on grounds of procedural flaws or iii) house arrest]. If the magistrate applies a penalty of house arrest, the defendant is released at the end of the hearing, but is supposed to remain at the address given and surrender to the authorities when a deportation order is issued. House arrest may be granted if the guarantees given (Garanties de representation) are considered sufficient and if a passport is handed over to the authorities. The authorities will not return the passport except on departure. N.B. In practice, the fact that the authorities possess the passport of a person without valid residents' permit enables that person to be deported faster and more easily upon re-arrest.

Audience: Court hearing.

Avocat commis(e) d'office: A lawyer appointed by the courts to represent all the defendants brought before a given court on a given day. You are always entitled to request his or her services. They are free.

Certificat d'hébergement: A certificate, usually provided by a friend or relative stating that you live with them. This can be useful either if you actually live with them or if the place where you do live is unsuitable as a "garantie de representation". In order to establish the certificate, you will need a bill in the person's name, a signed, handwritten letter certifying that you live with them rent-free and a photocopy of their identity documents. The physical presence in court of the "personne hébergeante" (person providing them with a roof) is always a good thing, especially where the defendant lacks valid French residency.

CIMADE: An ecumenical aid organization founded in 1939 to assist displaced and resettled persons in the South of France. It has representatives in some detention centres and can assist persons detained, in particular in drafting appeals. The Cimade is the only organization allowed into detention centres. It publishes an activity report following on visits to detention centres and a two-monthly journal called "Causes Communes".

Comparution Immédiate (Immediate Court Appearance): A procedure under which the person charged is brought to court immediately and sentenced the same day. This procedure is common where participants in a demonstration are charged, though the law stipulates that the people concerned must be identified as being over eighteen. Anyone charged with an offence is entitled to reject this procedure (the penalties imposed are almost always more severe than when trial are set at a later date). Requests for adjournment may not be refused. But where an adjournment is requested, the person charged must be brought before a second magistrate ("juge des libertés et des detentions") who rules, according to the "garanties de représentation" presented, whether the defendant will be held on remand or released prior to trial. Remand should, according to the texts, be the exception rather than the rule.

Contrìle d'identité: Procedure according to which a police person checks your identity. In principle, this procedure cannot take more than the time required to establish someone's identity and in any case may not last more than four hours. In practice, the police consider that they are free to hold anyone for up to four hours without telling the person concerned why they are held, even if their identity has been established within a few minutes... During this time, you may be questioned, but only with a view to entering your identity details in the duty-log. You may refuse to answer questions (except those relating to what is known as the "petit état civil", an expression which covers only such information as appears on normal identity documents, plus your profession). You are entitled to refuse to sign a statement. It is perfectly legal for French citizens to be without ID. If you have no ID on you, you are entitled to establish your identity "by any means" (letters, bills, telephone call). Lack of ID under no circumstances warrants arrest (garde à vue). Photographs and fingerprints may only be taken during a "contrìle d'identité" if the person concerned has refused to give their identity and if it is impossible to establish their identity by any other means. Once the "contrìle d'identité" is over (i.e. at the end of four hours), you must either be allowed out or placed under "garde à vue" (arrest).

Détention: Under French law, a distinction is made between "détention" and "rétention". The former refers only to prisons, which are administered by the judicial system and managed by the Prison Authority ("Administration Pénitentiaire"). Only a court can sentence a person to "detention". "Rétention" is a very different matter.

Fouille à corps (body search): unlike "palpation", a body search is a thorough operation involving the removal of clothes and sometimes rectal prodding. It may only be performed on someone under arrest ("en garde à vue") and must be performed by a woman on women. N.B. Breach of these regulations is sufficient grounds for ensuring that charges are dropped.

Garanties de representation (guarantees): these guarantees, corroborated by written documents, are intended to vouchsafe that you will attend subsequent hearings without remand. The aim is to show that one possesses somewhere to live and a stable social situation (proof of employment or of a promise of employment, a bill in one's name and a certificat d'hébergement). It is preferable to show proof that one lives with friends rather than in a hostel or other place considered temporary. The two principal occasions upon which one may be expected to provide these guarantees are:

- at an "immediate court hearing", in order to avoid remand, if requesting adjournment

- at a 35bis hearing, in order to obtain house arrest, when one is without valid residents' permit (in this instance, all that is required is proof of somewhere to live because a person without residents' permit is not entitled to work).

Garde-à-vue:A detective ("officier de police judiciaire") may retain a person at a police station ("commissariat" or "gendarmerie") for up to 24 hours for the demands of an investigation, provided that person is suspected of having committed a crime or an offence. The time spent under "contrìle d'identité" is deducted and thus constitutes the first four hours of "garde-à-vue". The "Procureur de la République" (state prosecutor) must be informed of the fact that a defendant is being held under "garde-à-vue". He may authorize an extention of the garde-à-vue for anything up to a further 24 hours. Garde-à-vue procedure is strictly controlled and supervised by magistrates from the state prosecutor's office (the "procureur"). The defendant must be formally notified that he or she is held under this procedure and informed of the rights pertaining. A person held under "garde-à-vue" possesses certain specific rights such as the right to silence, the right to let someone know (a policeman will transmit the information to the person nominated), the right to a lawyer after the first hour, the right to see a doctor and the right to an interpreter. In certain circumstances (a person charged with terrorist acts or with drug-trafficking), "garde-à-vue" may be extended for up to 4 days. Photographs and fingerprints may be taken during "garde-à-vue". DNA tests (spitting on blotting-paper) are voluntary. At the end of a "garde-à-vue", within 24 hours, the defendant may be sent to court for an immediate hearing ("comparution immediate"), may be summoned to a later hearing at a specified date, or may be allowed to go free.

Interdiction du territoire francais ("interdiction d'entrée et de séjour"): a person may be prohibited for entering or remaining in France, either as sole penalty ("à titre principal") or as an additional penalty. The ban may be temporary (a certain number of years) or permanent. Before the person can re-enter France or apply for French residency, the ban must either have run its course or have been formally waived. Under normal circumstances, a request for a ban to be waived can only be made either by someone in prison in France or by someone abroad.

Interpellation: the moment when a person is first stopped by the police. It is important to note the exact time when this happens, as the duration of both the "contrìle d'identité" and the "garde-à-vue" are measured from that moment.

Invitation à Quitter to le Territoire (IQT): An Invitation to Quit French Territory is an administrative measure, forwarded by post, usually at the same time as a residents' permit is refused [i.e. you have requested a residents' permit and the authorities ("Prefecture") have refused it]. Usually allows a period of one month for the recipient to quit France, under their own steam. In practice, you are considered as legally resident for one month after the IQT has been received, but at the end of the period you will receive an APRF. You have two months to appeal against an IQT and this appeal is not suspensive.

juge délégué: see 35bis below.

Laissez-passer du pays de renvoi: a document without which no one is deported, certifying that the country to which you are being deported is prepared to accept you. The "Prefecture" must obtain this document from the Consulate or Embassy of the country concerned, either by taking you physically from a detention centre to the Consulate or Embassy in question, or by requesting that a representative from the Consulate or Embassy visit the detention centre where you are being held. It is much easier and quicker for the "Prefecture" to obtain this document once they are in possession of your passport (for instance, if you are under house arrest). Your friends may wish to put pressure on the Embassies and Consulates involved to ensure that they refuse to provide the document, in which case you cannot be deported.

Main courante: duty-log established by police people during a "contrìle d'identité" interrogation. It consists of a simple statement which, unlike formal charges, does not necessarily imply prosecution. However, if legal proceedings ensue, it does constitute evidence. As with all interrogations in a police station, you are entitled to silence and may refuse to sign a statement.

Menace pour ordre public (threat to public order): this is an ill-defined notion (surprise, surprise) which, in practice, is invoked by the administrative authorities (police) at will in order to justify the application of severely repressive measures. It does not relate to a formal offence and does not generally form part of any sentence given by a magistrate in court. It may however be invoked to justify refusing to allow someone entry into France or to establish emergency deportation measures. It is sometimes qualified by the term "serious" ("menace grave pour ordre public").

Palpation: unlike a body search ("fouille à corps"), palpation means prodding someone's clothes. The suspect may be asked to remove an overcoat but not to get undressed. Similarly, pockets may be felt from the outside, but not searched. Palpation may take place prior to an identity check ("contrpole d'identité") or prior to entering a police vehicle. It must be performed by a woman on women.

Procédure administrative: this term refers to any proceedings which are not judicial and therefore in the sole remit of the authorities. Thus, administrative procedure regarding people without a valid residents' permit are in the sole remit of the police and the "Prefecture". In order to protest an administrative decision, one must lodge an appeal before a special tribunal, known as the "Tribunal Administratif" (TA), whose magistrates are not - unlike magistrates at the "Tribunal de Grande Instance" - guarantors of civic liberties. This means they do not have the power to have you released on grounds of procedural flaws or in order to protect your rights. Their job is to examine the validity of the administrative decision which has been reached in your case.

Procäs Verbal: a statement drawn up by a police officer, a policeman, a detective or a magistrate (in the French legal system, the term "magistrate" refers either to a presiding magistrate or judge, or to a public prosecutor) establishing what he has done, what he has heard or what he has observed. A written record of an interrogation is a form of "procäs-verbal" and the defendant is entitled to refuse to sign it.

Procureur (public prosecutor): French legal term referring to a magistrate attached to the country court and representing the prosecution. His job is to ensure that the law is observed, in the name of society as a whole. He is the person who will suggest an appropriate penalty, in the absence of private plaintiffs ("parties civiles") or in addition to them. The public prosecutor is also the person who decides whether someone should be held under arrest ("garde-à-vue"); who determines the charges preferred; who chooses whether the garde-à-vue will result in an immediate hearing, a trial at a later date or an enquiry ("instruction").

Rétention: Under the French system, a difference is made between "détention", which means prison, and "rétention", which means holding a person in a detention centre . Detention centres ("lieux de rétention") are not governed by the judicial system, but by the police authority (see procedure administrative). A "Préfet" (senior civil servant in charge of the police) is empowered to nominate anywhere as a detention centre, usually police cells, hotel rooms and so on. Certain detention centres are purpose-built. The law stipulates that people held under detention may receive visitors, may be sent their belongings, may make telephone calls and so on. The CIMADE generally maintains some form of representation in detention centres and can help inmates deal with the authorities. Any deportation or expulsion order is sufficient to warrant being held in a detention centre, for instance an APRF. However, the authorities cannot hold you under detention for more than 48h without applying for permission at a 35bis hearing held at a Tribunal de Grande instance (equivalent to a British County Court). Only when brought before a court will you able to form some kind of defence (request assignation à residence, request release on grounds of nullité de procedure (invalid procedure). If you have been deported within 48 hours, you will not have an opportunity to lodge an appeal against an administrative order. If detention is extended, the extension is for 5 days, at the end of which the authorities ("Préfecture") may return to the same court and apply for a further 5 days' detention. If at the end of 12 days (in toto), you have not been deported, you must be released.

Siéger (sitting): this is the specific term relating to a magistrate or judge in court when sentencing.

35bis: aliens' tribunal at the Tribunal de Grande Instance (equivalent to a British County Court) which draws its name from a clause in the administrative ordinance of 1945 relating to alien residents. So-called "laws" relating aliens, such as for instance the law called "Loi Chevänement" are in fact only amendments to this ordinance which governs detention ("retention"). Any alien detained must be brought before this tribunal within 48 hours for a first extension of detention, then again at the end of 5 days, for 5 days' further detention. The magistrate ("juge délégué") who sits ("siäge") may either order house arrest ("assignation à residence"), release or extended detention ("retention").Both hearings ("audiences") may be subject to appeal. A similar tribunal called "35quater" is responsible for foreigners refused entry, held in a waiting zone at the border prior to expulsion. The rule regarding terms of detention ("retention") and extensions is the same.

Tribunal administrative (TA): An administrative tribunal responsible for solving conflicts between private persons (individuals, companies, associations) and public persons (police authority, local authority, mayors, public institutions) or between various public persons. TA magistrates cannot order release in case of procedural irregularities.

Tribunal de Grande Instance (TGI): Equivalent to a British County Court, where all offences are tried. N.B. Illegal residence is an offence under French law, so that persons without valid residents' permits may be brought before a TGI on grounds of illegal residence. The usual penalty is three months' imprisonment, together with a ban on entry or residence. All magistrates sitting in TGI are "guarantors of civic liberties", which therefore means that a magistrate sitting on the 35bis bench, may order people without valid residents' permit to be released on grounds of procedural flaws but not if the procedure has been a purely administrative one.

the Legal Team

Source: noborder Legal Team