CRIMINAL COMPLAINT AND CIVIL ACTION
What is a civil action?
The civil action refers to the action by which the victim of a crime can obtain compensation for the damage suffered.
This action can be exercised before the criminal or civil courts.
It is often referred to as a complaint or a criminal complaint.The term is not inaccurate but it is vague. In reality, there are two types of complaint : the the simple complaint and the the complaint with civil party constitution which, like the direct summons, have for objective to allow the victim to launch themselves the penal proceedings in spite of the principle of opportunity of the proceedings.
What is the opportunity to prosecute ?
When the public prosecutor is informed of the commission of an offence, he is free to prosecute or not to prosecute.
This principle of discretionary prosecution allows him to opt for the most appropriate penal response by considering :
- either to close the case with no further action ;
- or to initiate proceedings; ;
- or to opt for an alternative prosecution procedure.
The principle of discretionary prosecution is very important in France: traditionally, it is more the prosecutor’s office than the victims who initiate the prosecution.
However, there are procedural techniques that allow the victim to initiate public action: these are the simple complaint, the complaint with civil party status and the direct summons.
THE SIMPLE COMPLAINT
Definition – Filing a complaint
Any victim of a criminal offence can file a complaint with the police station or the gendarmerie of his choice. It is possible to file a complaint in a city other than the one where the crime was committed (in case of territorial incompetence, the complaint will automatically be transmitted to the competent services).
The officers or agents of the judicial police are obliged to receive the complaint. The complaint must be recorded and a receipt issued immediately to the victim, who may also request a copy of the record under article 15-3 of the Code of Criminal Procedure.
The victim may also submit his or her complaint directly to the public prosecutor by simple letter describing in detail the facts of which he or she considers himself or herself to have been the victim.
The public prosecutor, who is the master of the opportunity to prosecute, will decide whether or not to pursue the complaint by forwarding it to the competent services.
The complaint will be closed without follow-up if he considers that the elements presented are insufficient.
The role of the lawyer
The drafting of the simple complaint requires a particular formalism attached to the legal syllogism (it is a reasoning aiming at recalling the facts and the appropriate rule of law as well as its application to the case in question).
A properly drafted complaint, which sets out the debate in legal terms and refers to the criminal qualifications of the acts committed, will have a better chance of attracting the interest of the public prosecutor’s office and may also serve later as a basis for a complaint with civil action if necessary.
When an investigation is opened, the lawyer assists his client and regularly exchanges with the police force in order to be kept informed of the progress of the investigations.
If the complaint is dismissed, the lawyer outlines the various remedies available to his client in order to obtain compensation for his loss.
Filing a complaint allows for the opening of an investigation. It is particularly useful when the victim has neither proof, nor the identity of the perpetrator. The filing of a complaint against x aims at establishing these elements.
The minor victim can file a complaint alone, without the presence of his legal representatives.
The simple complaint covers all criminal offences (contraventions, misdemeanours and crimes) committed against property or persons. It allows the public prosecutor to be informed of the commission of an offence.
The victim cannot be ordered to pay damages or a civil fine (except in the event that the complaint constitutes slanderous denunciation).
There is an online pre-complaint system for property offences and for discriminatory acts when the perpetrator is unknown, which saves time when presenting the complaint to the police station or the gendarmerie. In order to be effective, the complaint must be signed in these premises.
The victim can be prosecuted for slander.
The continuation of the investigation remains subject to the decision of the public prosecutor.
In fact, the simple complaint only leads to effective prosecution in cases where the public prosecutor considers that the denounced facts are a serious threat to public order..
Moreover, the complaint does not interrupt the statute of limitations. . This means that the victim will have and be vigilant in order to prevent the offence from being time-barred. The statute of limitations is a period of time after which no further action can be taken.
The author of the simple complaint can be prosecuted for slander. The withdrawal of the complaint will not allow him to avoid being held responsible.
What about the statute of limitations ?
What is the time limit for filing a complaint?
(articles 7 to 9 of the Code of penal procedure)
The victim will have to act quickly if he wants to escape the statute of limitations. The time limit starts to run from the moment the offence is committed. The victim will have one year for contraventions, six years for misdemeanors and twenty years for crimes to act.
The statute of limitations is very short for press offenses based on the Law of July 29, 1881.
If the victim was a minor at the time of the facts, the statute of limitations will begin to run from the date of his or her majority.
Certain crimes considered particularly serious (terrorism, crimes of eugenics and reproductive cloning, enforced disappearances, etc.) are subject to a thirty-year statute of limitations.
THE COMPLAINT WITH CONSTITUTION OF CIVIL PARTY
When the simple complaint has not been answered within three months, or when it has been closed without any follow-up, the victim can resort to a complaint with civil party status (complaint filed with the Dean of the investigating judges) if he/she wishes to open an investigation (the term “investigation” here refers to the inquiry conducted before the investigating judge).
The role of the lawyer
The admissibility of the complaint with civil party status is subject to several procedural conditions. The use of a lawyer makes it possible to ensure that these conditions are respected and to increase the chances of seeing the complaint succeed.
When the complaint is accepted by the investigating judge, the civil party is associated with the procedure. From then on, he or she can make additional observations or request actions from the investigating judge. These requests are subject to strict deadlines and require precise legal argumentation.
The lawyer assists the civil party during the investigation, particularly during hearings and confrontations. . The lawyer can appeal certain orders and raise nullities.
When the physical injury suffered is significant, the lawyer will also refer the case to the Crime Victims’ Compensation Commission.
The complaint with civil party status makes it possible to « force » the opening of a criminal investigation by the opening of the information.
The complainant, by becoming a civil party, becomes a party to the proceedings, has access to them and can make requests for action.
In addition, it interrupts the limitation period.
The payment of a deposit is mandatory, except for victims receiving legal aid.
The investigating judge sets the amount of the deposit according to the victim’s income, as well as the time limit within which it must be paid.
The author of a complaint with civil party constitution judged unfounded is liable. He can thus be condemned to pay damages for slanderous denunciation or to pay a fine for abusive or dilatory action. He may also be required to pay compensation for the damage suffered by the person named in his complaint.
The procedure is often very slow, as the investigating judge considers that cases “between parties” are not a priority. . It is therefore important to keep the procedure alive by making requests for acts and approaches to the judge.
THE DIRECT SUMMONS
The direct summons makes it possible to bring the case directly before the competent court. This approach implies that the victim knows the author of the facts and has irrefutable evidence.
The direct summons only concerns misdemeanors and infractions. Crimes are dealt with by the Assize Court, which can only be seized after an investigation by an investigating judge.
The role of the lawyer
The assistance of a lawyer is essential to draft the direct summons in extremely precise terms. Each offence must be precisely supported, demonstrated, and legally qualified.
The direct summons allows the case to be brought directly before the court.. The absence of a filter from the public prosecutor’s office, and of an investigating judge, makes it possible to considerably lighten the procedure and to obtain a judgment more quickly.
In addition, the victim of a contravention only has the direct summons to initiate public action.
The victim must know the identity of the perpetrator and be able to demonstrate every aspect of the offence he is prosecuting. No investigation will be possible.
At the hearing, it is in practice quite rare that the prosecutor supports the civil party.
Failure to pay the deposit is a cause of inadmissibility.
The victim may be ordered to pay damages or a civil fine.
THE CRIMINAL LAWYER, AN ESSENTIAL PARTNER FOR THE VICTIM WHO IS CONSIDERING FILING A COMPLAINT
Considering the technicality of the techniques allowing the victim to file a complaint, it appears essential to be advised by a criminal lawyer in order to :
- Audit the file in order to determine if an action has a real chance of succeeding,
- Choose the most appropriate mode of action,
- Draft and file a simple complaint, a complaint with civil action or a direct summons,
- Follow the procedure until the end,
- Be recognized as a victim, and obtain compensation for moral and material damages.