#COPJ #Nullity

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Nullity of a summons issued by a judicial police officer concerning articles that have been repealed in the charges against the accused

Article 390-1 of the French Code of Criminal Procedure stipulates that the summons to appear before a court must state the offence being prosecuted, as well as the legal text under which it is punishable.

According to case law, the purpose of these formalities is to enable the summoned defendant to usefully prepare his defense against the alleged offences. (C.Crim 10 septembre 2008, n°08-80.817)

Thus, the summons is null and void if it does not enable the accused to know precisely what offence is being prosecuted, because it mentions an article that is inapplicable to his situation. (C.Crim 6 mars 1990, n°97-90.236; see also C.Crim 20 octobre 1964, n°63-90.553).

In addition to the finding of an irregularity, it is necessary to establish that the failure to observe the formalities provided for by the texts has had the effect of harming the interests of the person concerned, which case law admits when the latter may have had “doubts about the purpose and scope of the act by which [he was brought before] the court” (C. Crim 20 octobre 1964, n°3-90.553) or when the defendant has not been put in a position to prepare his defense (C.Crim 6 mars 1990, n°97-90.236).

Before the criminal court, the firm was assisting a defendant accused of possessing category B weapons and ammunition, discovered during a search of his home.

In preparation for his court appearance, he was served with a summons by a judicial police officer, mentioning the offence of possession of category B weapons and ammunition, as provided for and punishable under article L.317-4 of the French Internal Security Code.

Under this article:

“Sont punis de trois ans d'emprisonnement et de 45 000 € d'amende l'acquisition, la cession ou la détention, sans l'autorisation prévue à l'article L. 313-3, d'une ou de plusieurs armes des catégories A ou B, de munitions ou de leurs éléments essentiels en violation des articles L. 312-1 à L. 312-4-3, L. 314-2 ou L. 314-3.

The prison sentence is increased to five years, and a residence ban may be imposed in accordance with article 131-31 of the French Criminal Code, if the offender has previously been sentenced to prison or a more serious penalty for a felony or misdemeanor.

Penalties are increased to ten years' imprisonment and a fine of €500,000 when the offence is committed by an organized gang.

The court shall also order the confiscation of weapons or ammunition."

The reference to this article thus brought to the applicant's attention both the offence charged and the principal penalty incurred.

The fact remains that, at the time the summons was issued, this article had been repealed by law n°2016-731 dated June 3, 2016.

Knowing that the possession of weapons and ammunition of category B is now codified in Article 222-52 of the Penal Code, under a significantly different scope since the penalty incurred is much higher than that provided for in the former Article L.317-4 of the Internal Security Code:

“The act of acquiring, holding or transferring war materiel, weapons, weapons components or ammunition in categories A or B, without the authorization provided for in I of Article L. 2332-1 of the Defense Code, in violation of Articles L. 312-1 to L. 312-4, L. 312-4-3, L. 314-2 and L. 314-3 of the Internal Security Code, is punishable by five years' imprisonment and a fine of €75,000.

Penalties are increased to seven years' imprisonment and a €100,000 fine if the perpetrator has previously been convicted of one or more of the offences referred to in articles 706-73 and 706-73-1 of the Code of Criminal Procedure and sentenced to one year's imprisonment or more.

Penalties are increased to ten years' imprisonment and a €500,000 fine when the offence is committed by at least two people acting as perpetrator or accomplice.”

The Cabinet thus considered that the summons was devoid of substance, in that it did not refer to any article in force that precisely informed the defendant of the offence charged and the principal penalty incurred.

He also argued that this irregularity had unjustly placed an exceptional burden on the defendant to identify the text in force applicable to his situation, and had placed him in a situation of uncertainty as to the penalty he was actually facing, so that he had been unable to usefully prepare his defense prior to his referral to the criminal court.

The court accepted this reasoning, ruling that the irregularity had definitively damaged the defendant's interests.

The firm of Paul Latouche thus obtained the nullity of the act of referral to the court, without any joinder on the merits.

This is why it is essential for lawyers to examine the legality of acts carried out as part of a criminal investigation, and what is at stake for their clients.

In every case referred to a lawyer, it is crucial to ensure that all investigative acts have been carried out in compliance with the law in force, because while criminal procedure essentially regulates the conduct of investigations and judicial information, its aim is also to protect the rights of those subject to trial against arbitrariness, to ensure respect for the adversarial process and, above all, respect for the rights of the defense.

The assistance of a lawyer is therefore essential for anyone facing prosecution.

Maître Paul LATOUCHE's firm, with its extensive experience in nullity litigation, can represent and assist you in these matters.