Nice-Première has therefore asked Olivier Tafanelli, Doctor in Law and lawyer at the Nice Bar Association, to explain the most frequently heard legal terms. Today, in the first installment of this column, Olivier Tafanelli discusses the functions and roles of the Public Prosecutor and the Examining Judge.
Public Prosecutor
The Public Prosecutor is a magistrate placed at the head of the Public Ministry (or Prosecutor’s Office), near the High Court, appointed by Decree of the President of the Republic, upon recommendation of the Superior Council of the Judiciary.
The Public Prosecutor is a magistrate, but not a judge. He or she does not settle cases or decide sanctions. Their mission is to initiate, or not, prosecutions on behalf of society, whose interests they are in charge of defending.
The Prosecutor’s Office, consisting of the Prosecutor and their deputies, is tasked with initiating and conducting public action before criminal jurisdictions. It also intervenes in civil matters when public order is at stake.
The Prosecutor is informed of facts that could constitute misdemeanours or crimes through complaints from individuals, but also through official reports.
They decide on the appropriateness of initiating prosecutions: referring the case directly to a judgment jurisdiction, requesting the initiation of an investigation by an Examining Judge, or closing the file without further action when no pursuit is necessary or possible.
For this reason, the position of Public Prosecutor is both sensitive and high-profile. Sensitive, because assessing the appropriateness of prosecutions is not simple, especially when the individuals involved are powerful or well-known, or when the facts are delicate by nature (example: should a mother who helped her terminally ill child die be prosecuted?). High-profile, because the Prosecutor primarily deals with criminal cases, which are by far the most relayed by newspapers and television. Thus, the Prosecutor assumes the difficult task of needing to be a good communicator, while remaining impervious to the various pressures generated by the media coverage of a case.
Examining Judge
The Examining Judge is a magistrate of the High Court whose mission is to investigate criminal files, i.e., to conduct the investigation that will allow the useful judgement of crimes and misdemeanours.
They are seized either by a person claiming to be a victim, through a complaint with a civil action, or by the Prosecutor’s Office.
In the latter case, the Examining Judge generally intervenes after a preliminary investigation has been carried out by the police following the discovery of the offence.
They must then seek to establish the facts in a complete and objective manner. The investigation, in principle, should neglect no detail, be founded on no preconceptions, and be conducted neither for nor against the accused.
To this end, the Examining Judge can decide on various measures: interrogations, confrontations of people involved in the case, medical expertises (autopsy…), reenactments, setting up wiretappings, seizures of objects, etc.
During their investigation, the Examining Judge can decide to formally charge (mise-en-examen) a person directly involved in the case.
If serious indications make it crucial, if maintaining public order or safeguarding evidence demands it, the Examining Judge can seize the Judge of Liberties and Detention and ask them to place the charged person in provisional detention. This is the specific case where an individual can be incarcerated even before being judged, throughout all or part of the investigation period.
Once the investigation is completed, the Examining Judge issues an order:
– of dismissal, if no crime or misdemeanour seems constituted;
– of referral to the Correctional Court, if a misdemeanour seems constituted;
– of referral to the Assize Court, if a crime seems constituted.
This order, like other decisions of the Examining Judge, may be subject to an appeal, brought before the Indictment Chamber of the Court of Appeal.
