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The different appeals in criminal procedure
in France

 Joëlle Godard

 There are two types of appeal in French procedure:

 Firstly,  the ordinary appeals which are only possible, in the circumstances set below to have a case re-tried or judged a second time.  These are l'opposition and l'appel.

 Secondly, the    extraordinaires    (exceptional) appeals which are possible only if allowed by law and if the ordinary appeal is not possible. These are the  pourvoi en cassation  where it is alleged that there has been an error as to the law and the pourvoi en révision  where it is alleged that there has been an  error as to the facts.

 A. The ordinary appeals

 The    opposition    (an application to set aside) is possible against a decision of the    Tribunal de police    (art. 544 and 545 CCP), of the Tribunal correctionnel   (art. 487 CCP) or the appeal court (art.  512 CCP) when the accused has not been summoned personnally and that it is not established that he knew about the action or when the accused has been personally summoned, but gave an excuse (Crim. 13 Nov. 1985: the accused was living abroad) for not appearing in front of the Court (art.410 al.1) The opposition is not possible if an accused has been personnally summoned or knowing about the summons has not appeared in front of the court or has not been represented by a lawyer (art. 410) .  The appeal is only possible by the absent accused or by the    partie civile    if a decision is taken against his interest.

 The    opposition    procedure, which must be commenced within ten  days of notification of the judgment if the accused leaves in metropolitan France or one month if he does not (CCP art.491),

renders the judgment void (CCP art.489). As a result of the  opposition , the enforcement of the challenged judgment is suspended (effet suspensif) and the opposition entails the annulment of the judgment challenged (effet extinctif). The case will be re-examined by the same court which delivered the first decision and will be retried in accordance with normal procedure.

 When a decision is taken in absence by a  Cour d’assises, if the accused is arrested before the  prescription of the sentence (20 years), there is a  purge de la contumace. This means that

automatically the judgement is void and that the case must be tried again. This is not considered an analogous procedure to the  opposition  against a decision of the  tribunal de police or the    tribunal correctionnel  because some effects of the decision of the first    Cour d’assises  remain (liquidation of confiscated properties for example).

 Secondly, there is the  appel  which in effect is an appeal on a  point of law or fact, in respect of conviction and sentence from decisons of the tribunal de police and  tribunal correctionnel taken after full argument on both sides have been heard or in absence if the accused chooses not to use the    opposition .

 Subject to what is stated below, an  appel is possible against any decision of the  tribunal correctionnel    (art.  496 CCP) and is possible for all the parties to the action.

 But an  appel  against a decision of the  tribunal de police  is only possible if the sentence imposed was one where damages are awarded to the    partie civile or if the maximum sentence is more than FF 5 000 (CCP art.  546 al.1).

 In the first case (damages are awarded), the appeal is only possible for the accused. If the maximum sentence is more than FF 50 000, the    appel    is also available to the prosecution.  In any case, the    partie civile  can appeal but only against the damages awarded to him. 

 The appeal must be lodged within ten days of the verdict if the judgment has been given after full argument on both sides or from the notification if the judgment has been given in absence (art. 498 CCP). The Ministère public (public prosecution) has two months to appeal (art. 505 and 548 CCP).

 The effect of the  appel   :

One effect of the  appel  is to suspend the enforcement of the challenged judgment (effet suspensif) but, if the accused was in custody before the first judgment, he must be released immediately in case of acquittal or suspended sentence or fine (art. 471 CCP). 

 The other effect of an   appel  is that the case devolves to the Cour d'  appel    (Chambre des appels correctionnels) for a consideration of the parts of the judgment under attack (effet dévolutif) (art. 509 and 515 - 2 and 3 CCP).

 The Cour d'   appel    can give a new qualification to the facts and examine new legal grounds, but cannot examine new facts which have not been refered to the court of first instance. The Cour  d' appel    cannot make a decision concerning new claims. 

 Apart from  this general limitation, the power of the Appeal Court can be limited by the subject of the action and the quality of the appelant.

 Appeal by the    Ministère public  cannot be on the damages awarded but only on the criminal prosecution. The appeal court can confirm the first judgment or change it (in a sense of lenience  or severity) whatever the request of the Ministère public is.

 A person who has been convicted may appeal in respect of either culpability or sentence and also against the award of damages to the    partie civile   . The appeal court cannot increase the  sentence or the damages awarded (art.515 -2 CCP) (2). In appealing, the danger for the convicted person is that the  Ministère public   is likely to enter a counter-appeal in which case the Cour d'   appel    may increase the sentence on appeal.

 Appeal by the  partie civile , lies against a refusal to award him damages or against the amount of damages which cannot be reduced on appeal (art. 515 -2).

  In 1982 a project introducing the possibility of appeal against a decision from the  Cour d’assises  was rejected but, Jacques Toubon (French Minister of Justice at the time) introduced a new bill which would allow a procedure whereby verdicts of a  Cour d’assises  will state the reasons on which they are based which would allow appeals to the  Cour d'appel    (Le Monde 7th June 1995). As any reform in criminal procedure is a political one, it was no surprise that his successor, Madame Guigou, was not in a hurry to take over this project but it was finally part of the fundamental reform she sets up.

The new minister of justice, Madame Marylise Lebranchu has taken over the reform process. Now, with the new Act “reinforcing the protection of innocence and the rights of victims”[1] judgments of the cour d’assises can be appealed by defence and prosecution, except in cases of acquittal. The sentence cannot be increased on appeal unless the prosecution has also lodged and appeal.

 As far as challenges to decisions by courts of final resort are concerned, (e.g. the Cour d’assises, the cour d'appel, and the  tribunal de police  in those cases where an appeal is not allowed) the method of proceeding is by way of review to the Cour de cassation (pourvoi en cassation) or, after cases have gone all the way through the courts, they can be re-opened by the  Cour de cassation by taking a review proceedings (pourvoir en révision).

 B. The exceptional appeals: the pourvoi en cassation and the pourvoi en révision.

 The pourvoi en cassation

 Any party who has an interest has the right to lodge an appeal within five days of judgment, to the Cour de cassation (chambre criminelle).

 This is an exceptional means of appeal being allowed only in cases specified by law. An applicant to the court must plead only a breach of the law (art. 591 CPP) which can be on one of the following grounds (moyens de cassation):

 - that the court against whose decision  cassation  is being sought was not properly constituted or the proceedings did not take place in public (art. 592 CPP);
- that the court was not competent to reach the decision it did (art. 599 CCP);
- that the court took decisions which were ultra vire (excès de pouvoir);
- that there were procedural irregularities, either statutory formalities (art. 592 -3) or those regarded by case law as being substantial (for example the right of the accused);
- that the court's reasoning was unsatisfactory (défaut, insuffisance ou contradiction des motifs);
- that the decision taken was illegal (art. 591 CPP) the appellant citing the provisions of a statute which he alleges the court did not correctly interpret or apply.

It has already been mentioned, that a judgment by the Cour d'assises cannot be appealed against to the   Cour d'appel and if it is an acquittal, it cannot be appealed against by the prosecution to the Cour de cassation. The  ministère public can  appeal to the Cour de cassation in the interest of the law where there has been an error of law.

 The Cour de cassation will not retry the case but will simply hear legal argument. When the    Cour de cassation    has reached its conclusion, it does not substitute its own judgment for that of the lower court. It has in effect two choices. First, it may consider that the lower court has correctly applied the law. In this case the application for review is rejected and the decision of the lower court stands. Secondly, it may find that the lower court has not applied the law correctly. In this case, the only option is to quash the judgment referred to it. The Cour de cassation will refer the case to a neighbouring court of the same level as that from which the application for review was made.

 This court is known as the juridiction de renvoi and it is its duty to hear the entire case again both as to the facts and as to the law. The parties may raise new arguments (moyens). The juridiction de renvoi  is not bound to follow the interpretation of the law as given by the Cour de cassation.

 If the juridiction de renvoi does not comply with the interpretation of the law as outlined by the Cour de cassation, it is open to the disappointed litigant to appeal a second time. 

 This pourvoi is heard by the court in assemblée plénière and once again its decision is based solely upon the interpretation given to the law by the  juridiction de renvoi . If the Cour de cassation, again decides to quash the decision of the lower court on the same grounds as before, the matter will be sent to a third court of equivalent status, which this time, although still accorded liberty in respect of its appreciation of the facts, is bound to implement the interpretation of the law as set out by the Cour de cassation.

 After cases have gone all the way through the courts they can be re-opened by taking a review proceedings in the Cour de cassation (pourvoi en révision).

 The pourvoi en révision

 Through the pourvoi en révision, a criminal case may be re-examined and retried for the benefit of the convited person in the event of a judicial mistake. It is available only where all other rights of appeal have been exhausted.

 Any person found guilty of a  crime or  délit (or, if that person has died, their next of kin) and the Minister of Justice may at any time apply for révision  to a special commission of five judges of the Cour de cassation.

 Originally, three grounds for allowing cases to be re-examined were recognised by the Code of Criminal Procedure (art. 622):

- in homicide cases, the presentation of documentary evidence suggesting that the person whom the accused has been convicted of killing is still alive;
- the conviction of someone else for the same offence;
- the conviction of a witness for perjury;

As a result of the Dreyfus affair in the 1890s., a fourth, much more general, ground was added, namely the discovery of a new fact or the presentation of documents which show the accused person's innocence.

This fourth ground has been changed by the law of 23rd June 1989 in order to allow a wider scope. Now, a    pourvoi en révision    is possible if after conviction    new facts or elements have been revealed which were not produced to the trial court and which give rise to a doubt as to the culpability of the offender .

The    Cour de cassation    is entitled, in its sole discretion, to determine the importance and effect of the evidence brought before it in support of a    pourvoi en révision . The Commission of five judges will proceed, itself or through    commissions rogatoires, to carry out a full investigation of the case (art. 623 CPP), including examining and confronting the convicted person and witnesses, and it will determine whether or not to refer the case to the  chambre criminelle  of the  Cour de cassation for review. No appeal lies against this decision.

If a review is held, the chambre criminelle  may proceed to carry out before the hearing such further investigations as it thinks appropriate. The parties are entitled to appear at the hearing and make written and oral representations. The court will then give a reasoned decision, again from which no appeal lies, either rejecting the application and confirming the conviction, or quashing the conviction.

Where the conviction is quashed, and it is impossible or useless to refer the matter back to a trial court - for example where there is no possibility, for technical reasons, of the appellant  being subsequently convicted, or where he is clearly innocent - the    Cour de cassation    will itself proceed to annul definitively the conviction. However, where there exists a possibility that the appellant may still be subsequently convicted, the matter will be referred back to an appropriate trial court for retrial.

 A person whose conviction is annulled is entitled to compensation (art. 626 CCP).

 During the first four semesters of the application of the law 1989, the Cour de cassation had registered 180  pourvois en révision    and all of them were based on paragraph 4 of article 622 of the Code of Criminal Procedure. Out of these 180 appeals, 97 were considered to be without any basis. In most cases, the appelant was not producing any new evidence and was only claiming his innocence. For 67 of the pourvois en révision  the  Commission decided that there was not enough evidence to justify the case being referred to the Chambre criminelle.