of law enumerated in the petition for review. If the lower court decision is found to have been based on an erroneous understanding of the law, it is set aside, and the case is returned to another court of the same rank for re-trial. Appeals may be taken from all convictions that involve more than five days' imprisonment or 60 new francs fine," except that no appeal may be had from the decision of an assize court. In general, the procedural rules applied in the tribunal de grande instance apply in the court of appeal as well, except that on appeal one judge is assigned to give the case special study and to report his findings but not his opinions to the court orally at the hearing. The defendant is interrogated by the court, but other witnesses are not heard, as a rule.94 95 93 96 If the appeal has been taken by the prosecutor, the court may affirm the judgment below or set aside all or any part of it. If the accused appeals, the court may not increase his punishment. If a civil claimant appeals, the court may not reduce his recovery, but they may increase it. If the court finds that the act charged was not a penal offense or cannot be imputed to the defendant, it will set aside the judgment and may grant the defendant damages. If the court finds that the offense was a felony, it will set aside the judgment and dismiss the appeal, because it has no felony jurisdiction." Since all proceedings after the examining magistrate's investigation were void, the accused may properly be prosecuted before an assize court. If the court determines that the trial was void because of a violation of law or some fatal procedural omission, it will vacate the first trial and decide the case de novo itself.98 99 Final decisions of the indicting chamber, police court, court of primary jurisdiction, court of appeal, and assize may be taken before the criminal chamber of the Court of Cassation (chambre criminelle de la Cour de cassation) for review. Judgments of acquittal rendered by an assize court may be reviewed only for the purpose of clarifying the law; the acquittal may not be in any way affected.1 Decisions not on the merits of the case may be reviewed only if they terminated the proceedings.2 The public sessions of the Court of Cassation are much like those of the courts of appeal. One judge reports on the case, and counsel for the parties present their arguments. If he desires to do so, the attorney general attached to the court may address his views to the court. In the court's deliberations the judge who reported the case states his opinion first, and the president states his last. The other members indicate their opinions in the order of their seniority on the court. The court may reverse a decision only because of a misinterpretation or misapplication of law. It may not consider whether the evidence is sufficient to support the decision. If, before considering the merits, the court decides that the procedures prescribed for perfecting a review before the court have not been complied with, the court dismisses the petition (by arrêt d'irrecevabilité or arrêt de déchéance). If the court finds that the case has become moot it renders an arrêt de non-lieu and does not reach the merits. After its deliberation on the merits the court either rejects the petition for review (by arrêt de rejet) or reverses the decision below. Unless there remains nothing to be decided (as is the case where an acquittal is being reviewed on the prosecutor's petition) the court must remand the case to a lower court for a new decision on the merits. This remand is not to the court whose decision has been reversed but to another court of the same rank, e.g., court of appeal, police court. If a conviction for a misdemeanor or petty offense is reversed because the court 92 Ibid., Arts. 496, 546. 93 Ibid., Art. 512. 94 Ibid., Art. 513. 95 Ibid., Art. 515. 98 Ibid., Art. 516. 97 Ibid., Art. 519. 98 Ibid., Art. 520. 90 Thid., Art. 567. 1 Ibid., Art. 572. 2 Ibid., Art. 574. 8 Thid., Art. 602. 4 Ibid., Art. 603. 5 Ibid., Art. 605. Ibid., Art. 606. 7 Ibid., Art. 607. had no jurisdiction the remand is to the court that does have jurisdiction to decide the case. If the error found by the court is not one that vitiates the entire proceeding, the Court of Cassation may grant the petition in part only and remand only that part of the case for re-trial. The Court of Cassation has no jurisdiction ever to render a final decision on the merits of the case. TITLE III-PAROLE Article 729 Convicts having been subject to one or more penalties privative of liberty may benefit from a parole if they have given sufficient proof of good conduct and present serious indications of social readaptation. Parole shall be reserved to convicts who have served three months of their penalty, if that penalty is less than six months, and half of the penalty in other cases. For convicts who are legal recidivists within the terms of Articles 56, 57 or 58 of the Penal Code the time before release shall be increased to six months if the penalty is less than nine months and to two-thirds of the penalty in other cases. For those sentenced to solitary confinement with hard labor for life, the time before release shall be fifteen years. For persons sentenced to a mixed temporary penalty of solitary confinement, it shall be four years longer than that corresponding to the principal penalty if that penalty is correctional, and six years longer if that penalty is a felony penalty. Article 730 The right to grant parole belongs to the Minister of Justice. The recommendation file shall contain the advice of the chief of the establishment in which the interested person is detained, the judge for the application of punishments, official counsel attached to the court that pronounced the conviction, the prefect of the department in which the convict intends to fix his residence or, in cases provided by decree, the prefect of the place of detention, and of a consultative committee instituted within the Ministry of Justice the composition of which shall be fixed by decree. Article 731 The benefit of parole may be mixed with particular conditions such as measures of assistance and control destined to facilitate and verify the readjustment of the freed man. Those measures shall be placed in operation under the direction or under the surveillance of committees presided over by the judge for the application of punishments, with the concurrence of the charitable associations authorized for that purpose. A decree shall determine the measures envisaged in the present article, the composition and powers of the said committees and the conditions for authorization of the charitable association. It shall also fix the condition of financing indispensable to the application of these measures and to the functioning of the committees. Article 732 The decree for parole shall fix the manner of execution, the conditions to which the grant or the maintenance of parole is subordinated and the nature and duration of the measures of assistance and control. That duration may not be less than the duration of the part of the penalty not served at the time of release, if a term punishment is concerned; it may exceed it for a maximum of one year. However, when the punishment in course of execution is a life penalty or a mixed punishment of solitary confinement, the duration of the measures of assistance and control shall be fixed for a period that may not be less than five years nor greater than ten years. During all the duration of parole the provisions of the decree of release may be modified on the recommendation of the judge for the application of punishments on advice of the consultative committee. Ibid., Art. 612. Article 733 In case of a new conviction, notorious bad conduct, violation of the conditions or failure to observe the measures set out in the decision for parole, the Minister of Justice may pronounce the revocation of that decision on advice of the judge for the application of penalties and of the consultative committee. In case of urgency, arrest may be provisionally ordered by the judge for the application of penalties of the place where the freed man is found, after hearing official counsel and subject to immediately placing the matter before the Minister of Justice. After revocation the convict must serve, according to the provisions of the decree of revocation, all or part of the duration of the penalty that remained for him to serve at the time of his release on parole, cumulatively, if appropriate, with any new penalty that he has incurred; the time during which he was placed in provisional arrest shall count for the execution of his penalty, however. If the revocation does not intervene before the expiration of the time provided in the preceding article the release shall be final. In that case the penalty is deemed to be terminated from the day of release on parole. Article 734 TITLE IV-SUSPENSION CHAPTER 1-SIMPLE SUSPENSION In case of sentence to imprisonment or to a fine, if the convict has not been the object of an earlier sentence to imprisonment for a common law felony or misdemeanor the courts may order, by the same judgment and by decision stating reasons, that the execution of the principal punishment shall be suspended. Article 735 If during five years, dating from the judgment or decree, the convict has not incurred any prosecution followed by sentence to imprisonment or to a more serious punishment for a common law felony or misdemeanor the conviction shall be deemed to be void. In other cases, the first punishment shall be executed first without confounding it with the second, subject to the eventual application of the provisions of Article 738. Article 736 The suspension of the punishment shall not extend to payment of costs of the trial and damages. Nor shall it extend to accessory punishments or to incapacities resulting from the conviction. However, the accessory punishments and the incapacities shall cease to have effect on the day on which, by application of the provisions of Article 735, the conviction has been deemed void. Article 737 After having pronounced the decision of conviction provided in Article 734. the president of the court must advise the convicted person that in case of a new conviction the first punishment will be executed without confusion with the second being possible and that the punishments for recidivism will be incurred in the terms of Articles 57 and 58 of the Penal Code. Article 738 CHAPTER 2-SUSPENSION WITH PROBATION In case of a sentence to imprisonment for a common law offense, if the convicted person has not been the object of an earlier conviction for a common law felony or misdemeanor and a sentence of imprisonment or if he has been sentenced only to a punishment of jailing less than or equal to six months, the courts may, in ordering that the execution of the principal punishment be suspended for a time which may not be less than three years or greater than five years, place the convicted person under the regime of probation. However, if the earlier conviction was pronounced with the benefit of suspension with probation added the provisions of the first paragraph of the present article shall be inapplicable. If the earlier conviction was pronounced with the benefit of simple suspension the first punishment shall be executed, by derogation of the provisions of Article 735, only if the second falls under the conditions and times provided in Article 740 or Article 742. That first punishment shall be void if the second punishment itself comes to be declared or deemed void under the conditions and in the periods provided in Article 743 or in Article 745. Article 739 The regime of probation shall require for the convicted person the observation of the measures of surveillance and assistance provided by an administrative regulation with a view to social readjustment of delinquents as well as the observation of those obligations provided by the same administrative regulation that have been specially imposed by the decree or judgment of conviction. Article 740 If in the course of the time fixed in application of Article 738 the convicted person has incurred a prosecution followed by a sentence to imprisonment or a more serious punishment for a common law felony or misdemeanor, the first punishment shall be executed first without being confounded with the second. Article 741 If in the course of the same period it appears necessary to modify, increase or reduce the obligations to which the convicted person is subject, the judge for the application of punishments of the place of his residence may, either on his own motion or on application of official counsel or at the request of the interested person, order their modification, their increase or their suppression. Article 742 If in the course of the same period the convicted person does not satisfy the measures of surveillance and assistance or the obligations imposed with reference to him, the judge for the application of penalties may place the matter before the court of primary jurisdiction of the place where the convicted person resides, that it may order the execution of the penalty. The same right belongs to official counsel. The judge for the application of penalties may, after hearing official counsel, decide by order stating reasons that the convicted person be taken to and retained in a jail. In that case, the court must decide within three days of the imprisonment. The decisions of the court may be appealed from by official counsel and the convicted person. Article 743 If in the course of the same period the convicted person satisfies the measures of assistance and surveillance and the obligations imposed with regard to him, and if his readjustment appears accomplished, the judge for the application of penalties may place the matter before the court of primary jurisdiction of the place where the convicted person resides, that the conviction may be declared void. The same right belongs to official counsel and the convicted person. The court may not be called upon for that purpose before the expiration of a period of two years counting from the day on which the conviction became final. The decision of the court may be appealed from by official counsel and by the convicted person. Article 744 When the convicted person placed on probation is otherwise the object of measures prescribed by an earlier decision rendered in application of Articles 15, 16 and 28 of the Ordinance No. 45-174 of February 2, 1945, the juvenile judge who first decided or who presided over the juvenile court that rendered the decision or, on delegation of competence, that of the place of the residence of the convicted person, shall exercise the power devolved on the judge for the application of punishments by Articles 741 to 743 of the present code. When the convicted person reaches twenty-one years of age, those powers shall be exercised by the competent judge for the application of punishments. Article 745 If at the expiration of the period fixed in application of Article 738 the execution of the punishment has not been ordered under the conditions provided in Article 742 and if the convicted person has not incurred a prosecution followed by a sentence to imprisonment [or jailing] or to a more serious punishment for a common law felony or misdemeanor, the conviction shall be considered as void. Article 746 The suspension of the punishment shall not extend to the payment of the costs of the trial and damages. Nor shall it extend to the accessory punishments and to incapabilities resulting from the conviction. However, the accessory punishments and the incapacities shall cease to have effect on the day on which, by application of the provisions of Articles 743 and 745, the conviction has been declared or deemed void. Article 747 The president of the court must, after having pronounced the decision of conviction provided in Article 738, give the advice prescribed in Article 737, informing the convicted person of the sanctions to which he is subject if he fails to conform to the measures ordered and of the possibility that he may, on the other hand, see his conviction declared void by observing perfect conduct. TITLE V-RECOGNIZING THE IDENTITY OF CONVICTED INDIVIDUALS Article 748 When after an escape followed by a retaking or in any other circumstance the identity of a convicted person is contested, that contest shall be settled following the rules established for matters of incidents of execution. However, the hearing shall be public. If the contest is raised in the course of and on the occasion of a new prosecution, it shall be settled by the court dealing with that prosecution. Article 749 TITLE VI-IMPRISONMENT FOR PAYMENT When a sentence to a fine or to costs or to any other payment for the profit of the public Treasury is pronounced by a criminal jurisdiction for an offense not having a political character and not including a life punishment, it shall fix, for the case in which the sentence remains unexecuted, the term of imprisonment for payment within the limits provided below. When the imprisonment for payment guarantees the recovery of several debts its duration shall be fixed according to the total of the liabilities. Article 750 The duration of the imprisonment for payment shall be regulated as follows: from two to ten days when the fine and the pecuniary liabilities do not exceed 100 new francs; from ten to twenty days when, greater than 100 new francs, they do not exceed 250 new francs: from twenty to forty days when, greater than 250 new francs, they do not exceed 500 new francs; from forty days to sixty days when, greater than 500 new francs, they do not exceed 1,000 new francs; from two to four months when, greater than 1,000 new francs, they do not exceed 2,000 new francs; from four to eight months when, greater than 2,000 new francs, they do not exceed 4,000 new francs; from eight months to one year when, greater than 4,000 new francs, they do not exceed 8,000 new francs; |