Public Action and Alternative Measures to Prosecution

Extract

[...] In fact, an alternative measure (except for penal composition and judicial convention of public interest) does not extinguish the public action. In fact, the only decision having this capacity is a judicial decision, which therefore does not make the prosecutor. However, the prosecutor can still take acts suspending the public action, for a longer or shorter period, which can reinforce legal uncertainty. In fact, as specified in Article 41-1 of the Code of Criminal Procedure and the reading on the contrary of the judgment, alternative measures suspend the prescription of the public action. [...]

[...] Fortunately, the High Court clarifies the status of the prosecutor, estimating that he does not make judicial decisions, so the execution of alternative measures does not extinguish the public action. II. The non-extinction of the public action following the execution of the alternative measure, confirming the absence of a judicial decision The decision under study indicates that the public action is simply suspended during the execution of alternative measures (A.). As a result, a reactivation of the public action is possible, although the defendant has respected his obligations (B.). A. [...]

[...] It specifies, however, that this alternative measure is only a preliminary to the decision on the public action. B. A measure to be pronounced before the decision on the public action The High Court specifies that the prosecutor of the Republic may take an alternative measure, "previously to his decision on the public action". Thus, the alternative procedure to prosecution can only intervene if there has been no dismissal without further action or initiation of the public action. Although this is only a reminder of what Article 41-1 of the Code of Criminal Procedure provides, this clarification is still important. [...]

[...] To justify itself, it seems to draw an interpretation from the first paragraph of Article 41-1 of the Code of Criminal Procedure. In fact, it does not prevent the prosecutor from exercising prosecutions in case of execution of alternative measures. It just specifies that the measure must be taken prior to the decision on the public action. But the High Court seems to ignore the end of the article. The problem is that it only mentions the case of non-execution of the measure, not that of execution or bad execution. [...]

[...] The Court of Cassation is led to answer the following question: does a reminder to the law, constituting an alternative to prosecution, extinguish the public action? In the light of Article 41-1 of the Code of Criminal Procedure, the High Jurisdiction holds that the prosecutor of the Republic may put in place alternative measures to prosecution before taking a decision on the public action, but this measure does not cause the extinction of the public action. The judgment of the Court of Appeal is therefore quashed and annulled and the parties are sent back to the Court of Appeal of Dijon. [...]