On 17 September 2014, the Court of Cassation ruled that the amount and time for the payment of bail in the context of legal proceedings must be determined according to the resources and charges of the Charged Person.
Similarly, the investigating judge who wishes to order a professional prohibition must not only find that the offense was committed in the exercise or on the occasion of the exercise of this activity by the person prosecuted but also prove the existence of a risk of commission of a new criminal offense.
For the record, Article 137 of the Code of Criminal Procedure provides:
“Everyone charged with an offense, presumed innocent, remains free.
However, because of the requirements of the direction or as a security measure, it may be subject to one or more obligations of the judicial review or, if they prove to be insufficient, to be assigned to residency with electronic surveillance.
Exceptionally, if the obligations of judicial review or house arrest with electronic surveillance do not achieve these objectives, it may be placed in pretrial detention. “
Judicial review is a criminal procedural measure that allows a person to be subject to one or more obligations until they appear before the criminal court to be tried.
Judicial review can only be ordered under two cumulative conditions, namely:
- it must be necessary for the investigation or to be pronounced as a security measure,
- the person must incur at least one sentence of correctional imprisonment.
In the context of judicial review, the investigating judge, the liberty and detention judge or the court may submit to the Charged Person one or more of the obligations listed in Article 138 of the Code of Criminal Procedure, namely:
- a prohibition to leave certain territorial limits fixed by the judge,
- a prohibition to be absent from home,
- an obligation to leave the matrimonial home with regard to conjugal violence,
- a prohibition to go to certain places fixed by the judge,
- an obligation to inform the judge of all his movements,
- an obligation to surrender his passport,
- an obligation to report periodically to the police station or the gendarmerie brigade,
- a prohibition to meet certain persons determined by the judge,
- an obligation to submit to a socioeducational followup (professional activity or training),
- an obligation to submit to examination, treatment or care measures even under the hospitalization regime, in particular for the purpose of detoxification or psychological or psychiatric followup,
- an obligation to receive medical, social or psychological treatment for domestic violence.
- an obligation to provide a bond or to constitute personal or real security (mortgages, suretyship, pledge, etc.),
- an obligation to justify a contribution to family expenses.
- Various prohibition:
- a ban on driving a vehicle,
- a prohibition to engage in certain professional or social activities (where the offense was committed within their framework and a renewal is to be feared),
- a prohibition to hold a weapon,
- a ban on issuing checks.
At any time during the investigation, the investigating judge, the liberty and detention judge or the court may:
- impose on the person under judicial supervision one or more new obligations,
- remove all or part of the obligations,
- modify one or more of these obligations,
- grant an occasional or temporary waiver to observe some of them.
Of these judicial review obligations, some can be imposed on the Charged Person only under certain conditions.
This is the case, in particular, of the guarantee and the prohibition to engage in certain professional or social activities.
As regards, first of all, the penal guarantee, article 138, paragraph 2, 11 ° of the Code of Criminal Procedure provides that:
“The amount and the timelimits for payment, in one or more installments, are fixed by the investigating judge or the judge of liberties and detention, taking into account in particular the resources and the charges of the Charged Person “
In this case, a person indicted for passive bribery had been placed under judicial control.
The order for placement under judicial supervision imposed the obligation to pay a deposit of € 30,000 and the prohibition to engage in activities related to urban planning operations.
To uphold the judicial review order, the Court of Appeal held that ” the principle of a bond was consistent with the facts alleged against the person concerned and that the amount of the security must be determined taking into account the its contributory powers “and, as regards the prohibition of the exercise of professional activity, it considered that it was” in keeping with the facts alleged against the person concerned “.
The Charged Person then filed an appeal on points of law, arguing:
- First, that the obligation to pay a bond was not justified since it provided for the maintenance of two minor children, reimbursed a mortgage, and had no liquid savings. In addition, it proposed to constitute a security interest (mortgage) on the real estate property it owned;
- And, on the other hand, that the prohibition of engaging in a professional activity was not justified because of the absence of any current risk of committing a new offense.
The Court of Cassation entitled the Charged Person by considering:
On the one hand, that:
“The amount and time for the payment of the security, which may be attached to the judicial review of the Charged Person, must be determined taking into account, among other things, the resources and expenses of the Charged Person”
And on the other hand :
“The investigating court, which prohibits the Charged Person from engaging in certain activities of a professional or social nature, shall find that the offense was committed in the course or on the occasion of the exercise of such activities and that there is a risk of committing a new offense “.
According to the Court of Cassation, the decision ordering the payment of a bond, in the context of a placement under judicial supervision, must expressly refer to the resources and the charges of the Charged Person.
This condition is recalled in several decisions of the Court of Cassation.
Thus, it has been held that the judgment of a Indictment Division which imposes on a Charged Person the payment of a sum in respect of the suretyship without making any reference to its resources shall be subject to cassation. ( Cass Crim, December 7, 1994, No. 9484.669 )
Similarly, the judgment fixing the amount of a security without explaining the resources and the costs of the accused ignores Article 138, paragraph 2, 11 ° of the Code of Criminal Procedure. ( Cass Crim 4 November 2008, No. 0885.724 )
Given the fact that the judges of the Court of Appeal had failed to justify their pronouncement with regard to the requirements of article 138, paragraph 2, 11 ° of the Code of Criminal Procedure, their decision could not avoid censorship.
Concerning the prohibition to engage in certain activities, Article 138, paragraph 2, 12 ° of the Code of Criminal Procedure lays down two cumulative conditions, namely that:
- the offense was committed in the course or on the occasion of these activities,
- the existence of a risk of committing a new offense.
The Court of Cassation has already had the opportunity to censor a decision prohibiting the exercise of its activity of judicial representative, on the grounds that the offenses charged were not committed during the exercise of this activity and the current risk of committing a new offense has not been sufficiently characterized. ( Cass Crim 5 March 2003, No. 0288,089 )
Similarly, the case law requires investigating judges to ascertain and characterize the current risk of commission of a new criminal offense justifying the maintenance of a professional prohibition against a Charged Person. ( Cass, Crim 13 October 1998, n ° 9884.224 )
However, the investigating court had failed to rule in practice on the risk of committing a new offense.
In conclusion, it should be kept in mind that the Charged Person may request the investigating judge:
- to carry out any act which appears necessary to the manifestation of the truth: hearing of a witness or of another party, transport on the spot;
- that these acts are carried out in the presence of his lawyer;
- the cancellation of the indictment within 6 months of the first appearance if an irregularity has been committed;
- to reconsider his decision and to give him the status of assisted witness if the conditions required by the indictment are no longer met (Article 8011 of the Code of Criminal Procedure).