Thus the basic elements of self-defense are established in Article 328 of the Penal Code. The question arises as to the meaning of the provision of Article 329. P. Bouzat provides the following explanation:

1

It was suddenly admitted that Article 329 has established the presumptions of self-defense for the following reason:

As a general rule, anyone who practices self-defense must prove before the investigating jurisdiction or, if he does not convince them, before the trial jurisdictions, that the conditions of self-defense have been met. Thus, he Lust establish that the defense was a reply to unjust aggression, that it was absolutely necessary, and that it was in proportion to the aggression. When there is a presumption of self-defense, the person who benefits from it no longer has to establish the conditions of self-defense; it is sufficient for him to prove that he acted under one of the conditions specified in Article 329, which is obviously much easier.

This point being accepted, the question arises whether the presumptions of self-defense must be considered simple presumptions, subject to contrary evidence, or as absolute presumptions, irrefutable.

Bouzat concluded that the Criminal Chamber of the Court of Cassation, in its decision of February 19, 1959, declared that these presumptions are simple presumptions.

Among other justifications for the use of force, or other illegal interference, French scholars and courts admit necessity. The Criminal Code does not have any general provisions on the state of necessity but does contain some particular provisions regarding it. For instance, Article R. 40-9 states that persons who kill domestic animals without need shall be punished, and Article R. 38-11 enumerates punishment for persons who obstruct public roads without need, or Article 87 of the Decree-Law of July 29, 1939, authorizes a therapeutic abortion if necessary to save the life of a pregnant woman. Bouzat gives the following definition of the state of necessity:

!

2

It is the state of a person who, to preserve his freedom of decision, has no other means of escaping the danger which threatens him or another, than to commit an offense which may affect an innocent third party.

A distinction must be made between necessity and constraint. While constraint annihilates the will, an act of necessity allows it to subsist, only obliging [the person] to make a choice.

It must also be distinguished from self-defense. In the case of self-defense, harm is inflicted on a guilty aggressor, while in the case of necessity, it touches a completely innocent person.

In certain cases, necessity is justified by the courts by moral coercion, in others, by the lack of criminal intent.

As well as self-defense, necessity is subject to certain conditions. First it is necessary that the person who commits the offense be in actual and immediate danger. Then the gravity of the offense and the danger to be avoided must be proportional: the sacrificed interest must be inferior to the preserved interest. There are no provisions as to the extent that force may be used by parents or those who take care of children.

Article 357-I of the Penal Code provides punishment only for the abuse of parental authority:

[the following] shall be punished for from 3 months to one year and a fine of from 300 Fr. to 6.000 Fr.: . . .

3. a father and mother, regardless of whether the loss of their parental rights has been decreed, endanger the health, safety or morals of one or several of their children by illtreatment, pernicious examples of habitual drunkenness or overt misconduct, a lack of care of necessary control.

QUESTION 8

The French Penal Code relies on a threefold division of offenses, as established in Article 1:

Art. 1.-An offense which the law punishes by regulatory punishments shall be a contravention.

An offense which the law punishes by correctional punishments shall be a

minor crime.

P. Bonzat and J. Pinatel. Traité de droit pénal et de criminologie. v. 1. Paris, Dalloz, 1970. p. 97.

An offense which the law punishes by deprivations or infamous punishments shall be a major crime.

QUESTION 9

Provisions on parole suspension and probation and imprisonment for payment are included in Articles 729-749 of the French Code of Criminal Procedure. See the Xerox copy attached as Appendix A.

Several of the procedural questions referred to in Question 9 are explained by G. L. Kock in the introduction to his translation of The French Code of Criminal Procedure which went into force on March 2, 1959, and by R. Vouin in his article "French Criminal Procedure" in The Accused. A Comparative Study, edited by J. A. Coutts. London, Stevens and Sons, 1966, a Xerox copy of which is attached as Appendix B.

QUESTION 10

The rule Nemo jus ignorare censetur applies with particular vigor to penal law. A mistake in penal law has no influence on criminal responsibility. The only exception to this rule was established by the Decree-Law of November 5, 1870, Concerning the Promulgation of Laws: "the administrative military authorities and the courts may, according to the circumstances, accept the exception of a mistake alleged by the delinquents, provided that the contravention was committed within 3 days after the promulgation." 1

In general the courts apply this rule strictly. It is true that in some recent decisions the courts admitted that excuse.

A mistake of fact may exclude, under certain conditions, criminal responsibility. In this respect a distinction is made between intentional and unintentional offenses.

In case of unintentional offenses the error of fact has no influence. However, as G. Stefani and G. Levasseur have observed:

3

. our jurisprudence [i.e., case law] imitating Belgian jurisprudence, which admits the exclusion of criminal responsibility even in unintentional offenses in cases of an unsurmountable mistake, shows a tendency to acquit because of the mistake of fact when it was unforeseeable and inevitable, the same constituting a real force majeur or when a reasonable person would commit [a similar act] under the same circumstances. The situation is different in cases of intentional offenses. A mistake of fact excludes intentional offenses because an intentional offense presupposes bad faith and a mistake of fact implies good faith. Several situations may arise. Sometimes the mistake of fact makes the offense disappear: a man was killed instead of a wild animal. In such a case, the perpetrator cannot be convicted of murder, because he had no criminal intention. Sometimes, the mistake of fact transforms an intentional offense into an offense of imprudence. A person who killed another person instead of an animal may be prosecuted for homicide by imprudence. Sometimes it may serve as a mitigating circumstance (for instance when a seller of alcoholic beverages made a mistake as to age of the purchaser). However, there are certain cases when the mistake of fact does not change the character of the offense: when the perpetrator does not care who the victims are or when an individual who wanted to kill X, killed Y who was erroneously taken to be X (a mistake as to the person), or an individual wanted to kill X, but because of bad aim, killed Y (aberratio ictus). In both cases the perpetrator is prosecuted for willful homicide.*

QUESTION 11

The problem specified in Question 11 does not arise in France.

QUESTION 12

In regard to extraterritorial jurisdiction see the attached Appendix.

1 P. Bonzat and J. Pinatel. Traité de droit pénal et de criminologie. v. 1. Paris, Dalloz, 1970. p. 270.

2 G. Stefani and G. Levasseur. Droit pénal général et criminologie. Paris, Dalloz, 1957. p. 276.

QUESTION 13

The French Penal Code uses different terms, "complot," "association," or "entente," to designate conspiracy.

According to the provisions of Article 87, paragraph, “A conspiracy (complot) shall exist as soon as the resolution to act is contrived and decided in concert between two or several persons."

Four elements are necessary for the presence of conspiracy: (a) the resolution to act, (b) the resolution must be contrived in concert between several persons, (c) the resolution must be decided, and (d) the purpose of the resolution must be to commit the crimes specified in Article 86.1

The resolution to act must be precise. Conspiracy exists only if the resolution was made by several persons united to attain the same purpose. It is not enough that the resolution was contemplated, it is necessary that all participants agreed on the purpose of the conspiracy and the means to be applied. And finally, the purpose of the attack should be one of those defined in Articles 86 and 93.

Conspiracy, as specified in the above-mentioned Articles, is different from that defined in Article 265, which reads as follows:

Every combination (association) formed, regardless of its duration or the number of its members, and every agreement (entente) for the purpose of planning or committing major crimes against persons or property, shall be a major crime against the public peace.

The terms used in Article 265, “combination formed" or "agreement reached," are very broad and leave the courts great discretion in evaluating the circumstances. The purpose of the combination or agreement must be to commit major crimes against persons or property. And finally the criminal intent must be established.

Article 267 of the Penal Code also punishes persons who knowingly and willfully favor a combination or agreement by furnishing their members with tools for the commission of major crimes, as well as means of communication or lodging and meeting places.

Closely connected with the problems discussed here are the provisions of Article 123 concerning combined unlawful activities of public employees acting in concert, and Articles 109 and 110 dealing with major and minor crimes against the Constitution, committed by prearrangement (plan concerté).

QUESTION 14

The transfer of felonious intent is rejected by the French Penal Code.

QUESTION 15

France is a unitarian State and therefore the problems raised in Question 15 do not arise in France.

QUESTION 16

In 1960, the Penal Code was amended and several detailed provisions concerning major and minor crimes against State security were introduced. Provisions similar to Section 1104 are included in Article 86 which reads as follows:

A criminal attempt with the aim of either destroying or changing the constitutional regime, or incitement of the citizens or inhabitants to arm themselves against State authority or to arm one part of them against the other or against national territorial integrity, shall be punished by hard labor for life.

QUESTION 17

Criminal provisions on drugs are included in the Code of Public Health. See the attached Appendix for the translation of the pertinent provisions. Provisions concerning gambling are included in Article 410 of the Penal Code. In addition, the provisions of the special laws pertaining to gambling shou'd be mentioned. See the Code pénal, Dalloz, 1971-2. p. 225–230.

Offenses against morals by press and print are defined by Articles 283-290. Provisions dealing with prostitution are included in Articles 334 to 335-6.

1 Répertoire, op. cit., "Complot," p. 612.

QUESTION 18

There are several laws dealing with firearms and explosives. Among them, the Decree-Law of April 18, 1939, regulatory provisions of August 14, 1939, pertaining to the Decree-Law of 1939, Ordinance No. 62-1021 of August 29, 1962, Law No. 63-760 of July 30, 1963, and Law No. 70-575 of July 3, 1970, should be mentioned.

For the texts, see the Code pénal, 171-2. p. 294–310.

There is no special provision in the Code pertaining to the offense of the supplying of arms. However, there are provisions on the supplying of arms attached to particular crimes, for instance, Article 95 pertaining to crimes against the security of the State.

QUESTION 19

The Penal Code provides capital punishment in several situations especially for crimes committed against State security and for crimes committed against persons: murder, assassination, parricide, and poisoning.

According to the provisions of Article 698 of the Code of Criminal Procedure, major and minor crimes against the security of the State in a time of peace are to be referred to the Court for State Security. Rules of procedure of the Court for State Security are established by Law No. 63-23 of January 15, 1963, which differs basically from the rules on common law offenses.

QUESTION 20

The main problem which arises concerning multiple related offences is the application of penalties. To this effect the following rules are established by Article 5 of the Penal Code:

In case of conviction for several major and minor crimes, only the severest of all applicable punishments shall be imposed.

Thus, in cases when the offense constitutes a contravention, the cumulation of penalties is admitted.

The cumulation of offenses may be real or ideal. There is real cumulation when different offenses were committed, and ideal when the same material fact is susceptible to different qualifications. When the prosecution of different offenses is covered by the same indictment, then the problem of punishment does not raise many difficulties. The severest punishment shall be imposed for all offenses according to the rules established in Articles 7-9. In the case of the penalties of the same degree there must be taken into account the duration. When there are several actions of prosecution, then several situations may arise: the second offense may be punished more severely than the first one, or less severely than the first one. Detailed rules were elaborated by the court decisions.*

Other problems raised in question 20 pertain to federal states.

French criminal jurisdiction is based on the principle of territoriality as defined in Article 3, paragraph 1 of the French Civil Code:

The laws of police and public security shall be binding upon all those who live on the territory.

According to Article 72 of the French Constitution, the territory of the French Republic consists of the metropolitan territory and the overseas departments and territories. For the application of the penal laws, the territorial sea, French ships and airplanes are considered a part of French territory.

If the offense is committed on French territory, or when one of the constituent elements of it has been accomplished on French territory, the offense in all its aspects is French.

The territorial principle is not absolute. Title X of the French Code of Criminal Procedure covers offenses committed abroad by both French citizens and foreigners.'

Dalloz Répertoire droit et de procédure pénale. vol. 1. Paris, Jurisprudence Générale Dalloz. 1967, p. 597 98.

The French Code makes a distinction between major crimes (crimes), minor crimes (délits), and contraventions (contraventions).

I. Offenses Committed by French Citizens Abroad

A French citizen who commits abroad an act qualified as a major crime may be prosecuted and tried by French courts (Art. 689), provided that he is a French citizen at the time of the prosecution (it is of no importance what nationality he had at the time when he committed the major crime), that he was not tried abroad, and in case of conviction and sentencing did not serve the sentence or obtain clemency, or that the penalty has not been extinguished by the statute of limitations (Art. 692).

However, if the act committed abroad by a French citizen is qualified by French law as a minor crime then the prerequisites for the French courts to assume jurisdiction are stricter.

At first, the minor crime must be punishable not only under French law, but also under the law of the country where it was committed (Art. 689, par. 2). French court practice concerning this requirement was summarized in the French legal encyclopedia as follows:2

Under penalty of cassation, the trial judge must ascertain in his sentence that all elements of foreign law necessary for the accusation are established again (Crim. Jul. 2, 1927. S. 1929. 1. 360).

However it is of no matter that the foreign qualification of the crime is different from the French qualification; it does not much matter that the penalty is not the same as that prescribed in France (see, for instance, Trib. corr. Colmar, May 11, 1950, Gaz. Pal. 1950, ibid. 1950.2.189, Rev. science crim. 1950.592 Caron. L. Hugeney).

The Court of Cassation does not review the interpretation of foreign law given by the trial judge (Carrive, Rev. science crim. 1937, 309). This judge is not duty bound to quote the text of the foreign law, and the Supreme Court refers to his statements (Crim. Dec. 17, 1887, D. 88.1.330).

It must be taken into consideration that the act must be punishable by the law of the country where it was committed not only at the time when it occurred but also at the time when the complaint was lodged (Aix, Sep. 30, 1959, Gaz. Pal. 1959.2.291); that there is no incrimination according to the foreign law when the act, also incriminating according to this [French] law, is covered by the law of amnesty of the foreign country (Crim. Dec. 31, 1936, Gaz. Pal. 1937.1.420; Trib. corr. Toulon, May 17, 1963, Gaz. Pal. 1963.2.387) .. that, in general, the statute of limitations of public action against offenses committed abroad is regulated by French law (Trib. corr. Montbéliard, July 3, 1964. D. 1965,69. Public Prosecutor Petit's charge).

Thus, in case of a minor crime, it is necessary to refer to the foreign law unless it concerns offenses against the security of the State or counterfeiting its seal or current national monies. These minor crimes, even if committed outside of the territory of the Republic, are punishable as minor crimes committed on French territory.

If the minor crime was committed against a private person, the complaint of such person, or the official denunciation by the authority of the country where the crime was committed, must precede the prosecution undertaken by the public prosecutor.

Certain minor crimes and contraventions committed in neighboring States, as defined in Article 695 of the Criminal Code, are subject to the rule of reciprocity.

II. Offenses Committed Abroad by Foreigners

As a general rule, and subject to the provisions of Articles 690 and 693, offenses committed by foreigners in a foreign country are not punishable in France. An exception is made for the major and minor crimes specified in Article 694, which appears in the Appendix.

According to Professors G. Stefani and C. Levasseur,3 the exceptions specified in Article 121-6 of the Code of Civil Aviation of March 30, 1967, which in part read as follows, must be added to the exceptions specified in Article 619: *

2 Dalloz. Répertoire de droit pénal et de procédure pénale. vol. 1. Paris, Jurisprudence Générale Dalloz. 1967. p. 597-98.

G. Stefani and G. Levasseur. Droit pénal général et procédure, vol. 2, 5th ed. Paris, Dalloz, 1971. p. 298.

Journal officiel. April 9, 1967. p. 3570.