The lays out the procedure before, during, and after the prosecution of suspects.
Violation of these procedures may amount to a nullity of the whole proceedings.
Law N°2005 of 27 July 2005 on the
The National Assembly deliberated and adopted,
The President of the Republic hereby enacts the law set out below:
BOOK I – GENERAL PROVISIONS
PART I – PRELIMINARY PROVISIONS
This law instituting the Criminal Procedure Code stipulates the ruIes which deal particularIy with:
(a) the investigation of offences;
(b) the search and identification of offenders;
(c) the method of adducing evidence;
(d) the powers of those charged with prosecution;
(e) the organization, composition and jurisdiction of courts in criminal matters;
(h) the setting aside of judgements in default and appeals;
(i) the rights of the parties;
(j) the methods of executing sentences;
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This Code shall be of general application except where there is provision to the contrary as provided in the Code of Military Justice or in any special law.
(1) The sanction against the infringement of any rule of criminal procedure shall be an absolute nullity when it is:
(a) Prejudicial to the rights of the defence as defined by legal provisions in force;
(b) Contrary to public policy.
(2) Nullity as referred to subsection (1) of this section shall not be overlook be raised at any stage of the criminal proceedings by any of the parties and shall be raised by the trial court of its own motion.
(1) The cases of infringement other than those provided for in section 3 shall result in relative nullity.
(2) Cases of relative nullity shall be raised by the parties in limine litis before the trial court.
It shall not be considered after this stage of the proceedings.
Any document rejected by a decision of the court shall be withdrawn from the case file and med in the registry.
It shall be forbidden to obtain information from the document withdrawn for use against the person concerned under pain of a civil action in damages.
(1) A joint trial shall be obligatory in the case of indivisible offences and optional in the case of related offences.
(2) Offences are said to be indivisible:
(a) when the same offence has been committed by several persons as co-offenders or with accomplices; or
(b) when one and the same person commits several offences which are so connected that one cannot be tried, heard and determined without the other; or
(c) when separate offences have been committed at the same time for the same objective.
(3) Offences are said to the related:
(a) when they are committed at the same time by several persons acting together; or
(b) when they are committed by different persons even in different places and at different limes in pursuance of a conspiracy; or
(c) when the offenders have committed the offences either to facilitate the commission of another offence or to ensure that the offence is not punished;
(d) when there is a case of receiving property procured by the commission of a misdemeanour or felony whether knowing or having reason to suspect the criminal origin of the property;
(e) in all cases where the relationship existing between them is as close as that of offences enumerated in this subsection.
Time-limit in this code shall be calculated as follows:
(a) the day when the act was committed shall not be included in calculating the time-limit;
(b) the day on which the act was done which sets the time running shall not be included in calculating the time-limit;
(c) The time-limit fixed in years or months shall be calculated from date to date;
(d) Time-limit fixed in hours shall be calculated from hour to hour;
(e) Time-limit shall be extended to the next working day when the last day is a Saturday, a Sunday or a public holiday.
(1) Any person suspected of having committed an offence shall be presumed innocent until his guilt has been legally established in the course of a trial where he shall be given all necessary guarantees for his defence.
(2) The presumption of innocence shall apply to every suspect, defendant and accused.
(1) A suspect shall be a person against whom there exists any information or clue which tends to establish that he may have committed an offence or participated in its commission.
(2) The defendant shall be any suspect whom an Examining Magistrate notifies that he is presumed henceforth either as the offender or co-offender, or as an accomplice.
(3) An accused shall be a person who must appear before the trial court to answer to the charge brought against him, whether in respect of a simple offence, a misdemeanour or a felony.
Where in the course of the investigation or trial, it is established that a person has usurped a civil stains or has been convicted under a false identity, the proceedings shall be stayed until such identity is rectified, at the instance of the Legal Department which shall, to this effect, and as the case may be, refer the issue to the competent judicial identity service or to the court whose decision contains the error on the identity of the convict.
PART II – COURT PROCESSES
(1) A court process shall be a written document by which a magistrate or a court orders either:
- the appearance or production of an individual before them; or
- the remand in custody of a suspect, a defendant, an accused, or
- a witness suspected of hindering the search for evidence; or
- the imprisonment of a convict; or
- the search of objects either used for or procured by the commission of an offence.
(2) The following shall constitute court processes:
summons, bench warrant, remand warrant, production, warrant, search warrant, warrant of arrest and imprisonment warrant.
(a) The State Counsel may issue summonses, warrants of arrest, search warrants, or production warrants;
(b) In cases of offences committed flagrante delicto, he may issue remand warrants
(2) The Examining Magistrate may issue, a summons, a bench warrant, search warrant, a remand warrant, and a production warrant.
(3) The trial court may issue a summons, a bench warrant, a search warrant, a remand warrant, an imprisonment warrant, and a production warrant.
(1) The purpose of a summons is to command the person named therein to appear before the State Counsel, an Examining Magistrate, or a trial court on the date and hour mentioned in the summons
(2) It shall be served on the person named therein by an officer or agent of the judicial police or by any other person who has been assigned such duties.
(3) Service shall consist of the delivering of a summons to the person named therein, an Ire shall sign the original which shall be returned to the magistrate who issued it.
If he cannot sign, he shall make a right hand-thumb print or make a print by using any other finger.
If he refuses to sign or to thumb-print, mention shall be made of this fact on the original.
(4) Where the person named therein appears, he shall without delay be heard.
If he fails to appear, a warrant may be issued for his arrest.
(1) A bench warrant shall be an order given by a court to any officer of the judicial police to bring immediately before it, the person named therein.
It shall be executed in accordance with section 27 herein.
(a) The signatory of the warrant shall hear the person named therein as soon as he is brought before him;
(b) At the end of the hearing, the said warrant shall have no further effect.
(3) If the person against whom a bench warrant has been issued is arrested outside the territorial jurisdiction of the court or outside the place of residence of the judicial authority who issued the said warrant, he shall be brought to the nearest Legal Department which, after ascertaining his identity, shall take all necessary steps to ensure his appearance before such authority.
(4) Throughout the formalities and the transfer referred to in the preceding sub-section, the person against whom the bench warrant has been issued shall be considered as having been remanded in police custody.
(5) If the person against whom the bench warrant has been issued cannot be found, a detailed report on the unsuccessful attempts to find him shall be drawn up and sent to the judicial authority who issued it.
(6) In the case provided for in sub-section (5) above:
- the original of the warrant is signed either by the head of the administrative unit, or the mayor, or the village or quarter head of the residence or the last known place of abode of the wanted person;
- a copy of the warrant shall be posted either at the residence or last known place of abode of that person, or at the offices of the administrative unit, the council office or the village community hall; mention of such posting shall be made on the original of the warrant;
- a report of the entire process shall be made, for transmission to the author of the warrant; a copy of the report shall be posted at the same place as the copy of the warrant.
A remand warrant shall be an order given by the State Counsel in case of felony or misdemeanour committed flagrante delicto, the Examining Magistrate or the trial court to the superintendent of prison to receive and detain a defendant or an accused.
It shall be issued in accordance with the provisions of the sections 218 to 221.
A search warrant shall be an order given to a judicial police officer by the State Counsel, an Examining Magistrate or a trial court to enter any public or private place and search it for the purpose of seizing any articles or documents used in committing an offence, or which appears to be the product of an offence.
A production warrant shall be an order given by one of the judicial authorities cited in section 12, to the superintendent of a prison that a defendant, an accused or a convict be brought before him or before a trial court.
(1) A warrant of arrest shall be an order given to an officer of the judicial police to arrest a defendant, an accused or a convict and bring him before one of the judicial authorities cited in section 12.
(2) If the defendant, the accused or a convict is at large, the Examining Magistrate or the trial court may issue a warrant for his arrest if the offence in question is punishable with loss of liberty, or in case of imprisonment sentence.
(3) If the defendant, or the accused or convict resides out of the national territory, and does not appear after having been summoned, the Examining Magistrate or the trial court may for purposes of extradition, issue a warrant for his arrest if the offence in question is punishable with loss of liberty of at least six (6) months, or if he is sentenced to the same term of imprisonment.
(1) A person arrested on a warrant shall be brought immediately before the Examining Magistrate or the president of the trial court who issued the warrant, who may order his immediate release if he fulfils any of the conditions referred to in section 246 (g).
(a) If he fails to fulfil the condition, he shall be taken immediately to the prison indicated on the warrant subject to the provisions of sub-section (3) of this section.
(b) Within forty-eight (48) hours of the detention of the person, he shall be interrogated by the Examining Magistrate or, as the case may be, at its next sitting by the trial court which issued the warrant.
(3) The Examining Magistrate or the trial court shall decide on his detention in accordance with sections 221 and 222.
(4) If the person is arrested outside the jurisdiction of the Examining Magistrate or of the trial court that issued the warrant, he shall be immediately taken before the State Counsel of the place of arrest who shall without delay, inform the Examining Magistrate or the president of the court that issued the warrant of arrest about the arrest and the action taken thereafter and shall request the transfer of the person arrested.
(1) If the person against whom a warrant of arrest is issued cannot be found after careful search, a copy of the warrant shall be left at his last known place of abode or with the village or quarterhead.
(2) A report on the steps taken to execute the warrant shall be made in writing and forwarded to the person who issued the warrant.
(3) The judicial police officer charged with executing the warrant shall have his report signed and stamped by one of the administrative authorities mentioned in section 14 (6) and shall leave a copy thereof with him.
(1) Except in cases of offences punishable with death, a warrant of arrest may contain an endorsement that the person to be arrested shall be released if he fulfils the conditions listed in the warrant, in such a case, the endorsement shall specify, apart from the magistrate before whom or the court before which the person to be arrested is to appear: either the number of sureties, if any, and the amount by which they bind themselves to pay in case of non-
appearance; or the amount of security to be deposited by the person to be arrested.
(2) When such endorsement is made, the judicial police officer shall release the person if the conditions laid down in the preceding sub-section (1) have been fulfilled.
(3) The recognizance signed by the person arrested or his sureties or, where applicable, the particulars from the receipt of the security deposited shall be transmitted along with the report on the execution of the warrant to the magistrate before whom or the court before which the person is bound to appear.
The judicial police officer charged with the execution of a warrant of arrest may be accompanied by a sufficient number of law enforcement officers to prevent the person from escaping.
The judicial police officer charged with the execution of a warrant of arrest may not enter any place of abode before 6 a.m. or after 6 p.m. for purpose of executing the warrant.
The judicial police officer who executes a warrant of arrest shall be bound to take steps to issue a notice of discontinuance of the search for the person arrested as soon as such person has been handed over to the competent judicial authority.
An imprisonment warrant shall be an order given by a trial court to the superintendent of a prison to receive and detain a convict.
With the exception of a production warrant, ail warrants or summonses shall state the full name, date and place of birth, affiliation, occupation and address of the person named therein and it shall be dated, stamped and signed by the magistrate issuing it or by the president of the trial court.
A production warrant may state only the full name of the detainee and the prison where the person is detained.
(1) Court processes shall be executed throughout the Republic of Cameroon.
(2) A court process remains enforceable unless it is withdrawn by the competent magistrate.
Subject to the provisions of section 23, any court process may be executed at any time and on any day including Sundays and public holidays.
A court process may be executed notwithstanding the fact that the judicial police officer executing it does not have it in his possession at the time.
In such a case, all documents in thereof shall be shown to the person arrested, and the judicial police officer shall proceed as stipulated in section 19 (4).
PART III – ARREST
(1) An arrest shall consist of apprehending a person for the purpose of bringing him without delay before the authority prescribed by law or by the warrant.
(2) A judicial police officer, agent of judicial police or any officer of the forces of law and order effecting an arrest, shall order the person to be arrested to follow him and, in the event of refusal, he shall use reasonable force, necessary to arrest the person.
(3) Any person may in case of a felony or misdemeanour committed flagrante delicto as defined in section 103, arrest the author of such an offence.
(4) No bodily or psychological harm shall be caused to the person arrested.
Except in the case of a felony or misdemeanour committed flagrante delicto, the person effecting the arrest shall disclose his identity and inform the person to be arrested of the reason for the said arrest, and where necessary, allow a third person to accompany the person arrested in order to ascertain the place to which he is being detained.
Any officer or agent of the judicial police may, in a public place or a place open to the public, and subject to the provisions of section 83 (3), arrest the author of a simple offence who either refuses to disclose his identity or discloses an identity suspected to be false and, where necessary, detain him for not longer than twenty-four (24) hours.
Any magistrate who witnesses a felony or misdemeanour being committed flagrante delicto may, verbally or in writing, and after disclosing his identity, capacity and functions, order the arrest of the offender and the accomplice and direct that they be brought before the competent authority.
Judicial police officers shall forward daily a list of persons detained at their police stations to the competent State Counsel.
(1) The judicial police officer who arrests or to whom an officer of the forces of law and order or an individual hands over a suspect may search the suspect or cause him to be searched, take away and keep in safe custody ail articles found in his possession except necessary clothing.
(2) An inventory of the articles seized shall be prepared and signed on the spot by the judicial police officer, the suspect and a witness.
(3) When a person arrested is released, any property seized from him which may not be used as an exhibit shall be immediately returned to him before witnesses, if any, and against his signature.
A report shall be made of the restitution.
(1) Whenever an officer of the judicial police charged with the execution of a warrant has good reason to believe that the person to be arrested has taken refuge in a house, a place not open not to the public, the occupant shall be bound to facilitate his ingress therein.
(2) In the event of a refusal, the officer of the judicial police shall make a report thereof, and before available witnesses, break into the house or place.
Any person arrested shall be given reasonable facilities in particular to be in contact with his family, obtain legal advice, make arrangements for his defence, consult a doctor and receive medical treatment and take necessary steps to obtain his release on bail.
Every person shall be bound to assist a magistrate or officer or agent of the judicial police or a member of the forces of law and order when such assistance is required for the purpose of apprehending a person or for preventing him from escaping.
In the case of refusal, the provisions of section 174 of the Penal Code shall be applicable.
PART IV – LEGAL NOTIFICATION, SUMMONSES AND SERVICE
CHAPTER I – LEGAL NOTIFICATION
Legal notification shall consist of bringing a legal document to the knowledge of the interested party.
It shall be done through administrative channels, in particular by registered letter with acknowledgment of receipt due, or by an officer of the judicial police who shall make a report thereon.
CHAPTER II – SUMMONSES
(1) A summons shall be an order requesting a person to appear before a court.
(2) A summons shall be served by the bailiff on the defendant, the accused, the civil party, the witnesses, on the person vicariously liable and where applicable, on the insurer.
(3) A summons shall be issued at the request of the Legal Department or the aggrieved party or any other interested party.
(4) It shall be served on the person, at his place of work, at his residence, at the mayor’s office, or the Legal Department.
(1) A summons shall state besides the date of service, the full name, affiliation, date and place of birth, occupation, address, residence and where necessary, the address for service on the complainant, the full name and address of the bailiff.
It shall state the full name, affiliation and the full address of the addressee and particularly his residence or his place of work.
(2) A summons shall state the facts of the case and provisions of the law under which the defendant is charged.
It shall also state, as the case may be, the Examining Magistrate or the court seized of the matter, the place, date and hour of the hearing, and shall specify whether the person has been summoned as defendant, accused, civil party, person vicariously liable, witness or as insurer.
(3) The summons served on a witness shall in addition mention that non-appearance, refusal to testify or giving of false evidence is punishable by law.
The civil party who institutes criminal action by private prosecution shall choose an address for service on himself within the jurisdiction of the court, if he is resident elsewhere.
(1) The bailiff shall make every effort to effect personal service.
He shall state on the original as well as on the copy left for the person to whom the summons is addressed, not only the action which he has taken to effect service but also the replies to his eventual enquiries.
(2) The Legal Department, the Examining Magistrate or the court may order the bailiff undertake further action if it considers that former actions were incomplete.
(1) The person summoned shall sign the original and the copies.
(2) If he does not know how to sign or refuses to sign or cannot sign, mention shall be made of this fact on the original and the copies.
(1) Where the bailiff does not find the person summoned at home, in his residence or at his place of work, he shall leave a copy thereof to any person found on the place.
Subject to the provisions of section 44 subsection (2), the person to whom the summons is handed shall sign the original and the copies.
(2) The bailiff shall indicate in the summons the full name and address of the person to whom he delivered the copy of the summons, as well as that person’s relationship with the person to whom the summons is addressed.
(3) In the case referred to in subsections (1) and (2), the copy shall be delivered in a sealed envelope with only the full name and address of the person to whom it is addressed on the one side and the stamp of the office of the bailiff affixed on the cover flap on the other site.
(1) If the bailiff does not find any person at the address of the person to whom the summons is addressed, or if the person found therein refuses to receive the summons, he shall immediately ascertain the correctness of the address.
(2) If the address is correct, the bailiff shall mention on the original and on the copies what action he has taken and facts observed by him, then he shall have the mayor or the person acting for him, visa the documents, or in default, the village or quarter head.
A copy shall be delivered in a sealed envelope as prescribed in section 45.
(1) In the cases referred to in sections 45 and 46, the bailiff shall immediately Worm the person summoned, by a registered letter with acknowledgement of receipt, of the person to whom the copy of the summons was delivered.
(2) Where it is found from the receipt that the person summoned received the registered letter within the time-limit prescribed in section 52 the summons shall be deemed to have been served on the person.
Where the person to be summoned has no residence or abode, or known place of work, the bailiff shall have the State Counsel visa the original and the copies and shall leave a copy with him, to post at the entrance of the court hall.
(1) Where it is not established that the person summoned has received the registered letter addressed to him by the bailiff in accordance with the provisions of section 47 or where the summons was served on the Legal Department or the mayor’s office, a judicial police officer may be requested by the Legal Department 10 undertake another search with a view 10 effectively notifying the person concerned.
(2) In all cases, the judicial police officer shall draw up a report of the action he has taken and forward it without delay to the Legal Department.
(3) Where a judicial police officer has effectively served the summons on the person cited therein, this shall be deemed personal service.
(1) Summonses on persons residing abroad shall be served on the Legal Department.
(2) The Legal Department shall send a copy in a sealed envelope to the Ministry in charge of Foreign Affairs, which shall cause the summons to be served without delay on the addressee through diplomatic channels.
(3) Where there is a judicial convention between Cameroon and the foreign country in which the person summoned resides, the Legal Department shall send the copy in a sealed envelope directly to the authority provided for the convention.
(1) The original of any summons shall be immediately sent to the party who requested it.
(2) If the summons was issued at the request of the Legal Department, a copy of the summons shall be attached to the original.
(3) The bailiff shall indicate at the bottom of the original and of the copies of the summons the cos15 of issuing and serving it; otherwise, he shall be liable to pay a civil fine of from 5.000 to
25.000 francs which shall be ordered by a ruling of the President of the court seized either of his own motion or at the request of the Legal Department.
(1) The interval between the day when the summons is issued and the day fixed for appearance shall be five (5) days if the person summoned resides in the town or the locality where he is to be heard.
(a) It shall be five (5) days, in addition to an additional day for every 25 kilometres, if the person summoned resides out of the town or locality where he is to be heard.
(b) This interval shall be calculated on the basis of the distance between the residence of the person concerned and the seat of court before which he is to appear.
(3) The interval shall be ninety (90) days if the person resides abroad.
Where the prescribed time-limit of the preceding section are not observed, the following rules shall apply:
(a) If the person summoned does not appear, the summons shall be cancelled either by the court or by the Examining Magistrate who shall order that a new summons be issued.
(b) If the person summoned appears, he shall be informed that he has been irregularly summoned and that he has a right to either apply for an adjournment, accept to be heard or to have the matter proceeded with.
A summons may be declared void where omissions or errors pointed out by one of the parties are prejudicial to his interest.
Where the summons is declared void because of the fault of the bailiff, he shall be liable for the expenses of the irregular summons in addition to the costs of the decision declaring the summons void.
CHAPTER III – SERVICE
(1) Service shall mean the delivery of a court process or judgment by the bailiff to the addressee.
It shall be executed at the instance of the Legal Department or any other interested party.
(2) The provisions of sections 40 to 55 shall apply to service.
Where personal service has not been effected it may be made at his place of residence, the council office, the Legal Department, on his surety or at his place of work.
A bailiff shall not carry out his official duties either on himself, his spouse, his ascendants, his descendants, collaterals and their descendants, as well as those of their spouses, his parents in law and the relatives by marriage to the same degree, or his employees.
BOOK II – INVESTIGATION AND PROSECUTION OF OFFENCES
PART I – CRIMINAL AND CIVIL ACTIONS
(1) The commission of any offence may lead to the institution of criminal proceedings and as the case may be, to a civil action.
(2) The institution of criminal proceedings aims at procuring a sentence or a preventive measure against an offender as provided by law.
(3) Civil action is intended to provide compensation for damages resulting from an offence.
Criminal proceedings shall be institutes and prosecuted by the Legal Department.
They may also be instituted by any government department or by the injured person under the conditions laid down by law.
A civil claim may be made along side a criminal action before the same court so long as they arise from the same offence.
It may also be brought separately from a criminal action.
In such a case, the court seized of the civil matter shall stay proceedings until a final decision on the criminal action has been pronounced.
(1) Criminal proceedings shall be discontinued in the following cases:
(a) the death of the suspect, the defender or of the accused;
(d) repeal of the law ;
(e) after a successful plea of convict or acquit;
(f) by agreement between the parties, if the law expressly so provides ;
(g) the withdrawal of a complaint, where the lodging of such a complaint is a precondition for the commencement of prosecution.;
(h) the withdrawal of the complaint or the civil claim by the civil party who lodged the complaint in respect of a simple offence or a misdemeanour .
(2) The provisions of subsection (1) (h) above are applicable only where:
- the withdrawal is voluntary;
- the matter has not been heard on the merits; government department or by the injured person under the conditions laid down by law.
the offence committed does not disturb public order or good morals; in case of many civil claimants, al! of them withdraw their complaints or civil claims;
the withdrawal is not as a result of violence, fraud or deceit.
(3) In the case referred to in sub-section (2) above, the court shall grant the application and award costs against the civil claimant.
When a court has been seized al the same time of a criminal action and a civil action, except in the case provided for in sub-section l (h) above.
The judge seized of the matter shall be bound to adjudicate thereupon.
(1) The Procureur General of a Court of Appeal may, by express authority of the Ministry in charge of Justice, enter a nolle prosequi, at any stage before judgement on the merits is delivered, if such proceedings could seriously imperil social interest or public order.
(2) In the case completed in sub-section (1) above, the Examining Magistrate or the court shall record the fact of the discontinuance of the criminal action, and order if need be, the cancellation of any warrant against the suspect or the accused.
(3) W11e:1 the criminal action has been discontinued pursuant to sub-section (1) above, the EX< span>
(4) The discontinuance of criminal proceedings shall be without prejudice to their reinstitution when this becomes necessary.
(5) Except for the cases contemplated in subsection (I) above and in section 62 (I) h), prosecution regularly instituted, shall not in anyway be discontinued or suspended, without the risk of a civil action for damages against the magistrate who so does.
(1) Prescription shall be the barring of prosecution following the failure to commence action within the prescribed limitation period.
(2) In the case of a felony, criminal proceedings shall be time-barred after the years have elapsed from the day following the day of commission of the felony, if within the interval no step is taken within the meaning of section 66.
(3) Where a step has been taken within that interval, prosecution can only be time-barred after ten years have elapsed from the day following the date of such step.
(4) In the case of a misdemeanour except where there are special provisions in relation to certain offences, the period of prescription shall be three years.
It shall be calculated according to the circumstances specified in sub-sections (2) and (3).
(5) In the case of a simple offence period of prescription shall be one year shall be calculated according to the circumstances specified in sub-sections 1 and (3).
(6) In the case of prosecution for several related offences, the delay for prescription to be taken into consideration shall be that of the offence with the most severe punishment.
Time shall start to run afresh if one or more of the following acts should occur: the lodging of a complaint, wri1 orders issued by the Legal Department instituting measures of investigations, processes served by bailiffs, reports of police investigations, court processes, hearing of the parties and witnesses during preliminary inquiry or in court, interlocutory rulings and declarations of appeal.
Acts which set the time prescribed for prosecution to run afresh shall have an effect even as regards persons who are not implicated or named in such acts.
(1) The time-limit shall be suspended be any de jure or de facto bars which may prevent the commencement of criminal action.
(2) It shall be considered as de jure bars where:
(a) there is an interlocutory plea against the judgement being given;
(b) there is parliamentary immunity;
(c) a fiat to prosecute is being awaited;
(d) an appeal to the Supreme Court has been lodged;
(e) there is a conflict of jurisdiction.
(3) De facto bars shall in particular include the following:
(a) invasion of the territory by enemy forces;
(b) insanity of the suspect, the defendant or the accused after the commission of the offence;
(c) the escape of the suspect, defendant or accused;
(d) the enlisting of the case for hearing;
(e) adjournment of the case entered in the record-book;
(f) the fact that a court by failing to perform an act within its jurisdiction, has prevented a party from exercising his legal rights to take action or to defend himself.
(1) Prescription of prosecution shall be a matter of public policy.
(2) The period of prescription shall be determined according to the statement of offence as laid down by the trial court when delivering judgement in the criminal matter.
The withdrawal of a civil claim may not stay criminal proceedings except otherwise provided by law.
(1) A civil claim based on an offence may be made by any natural or legal person who has suffered injury, loss or damage.
However an infant or any other person who has lost his legal capacity may not be himself make a claim before the court.
He may do so only through his legal representative (committee or next friend).
(2) A civil action instituted against someone who in law has no legal capacity shall be instituted through his legal representative (guardian ad litem), without involving the estate of the latter.
The insurer may at the request of the victim of the offence or the person vicariously liable be summoned to appear before the court to be heard and to be found liable jointly with the accused to compensate the victim for the damage caused by the offence.
In the event of the victim’s death, his right of action shall devolve on his heirs.
(1) Associations, trade unions and professional organisations may make civil claims in criminal actions only if they invoke specific damages and a collective or professional interest.
(2) An insurance company shall not, in a criminal action, be competent to bring a civil claim against an accused person for the recovery of compensation paid by it by virtue of a contract of insurance.
(1) A civil claim made in a criminal action, shall be entertained only where it is based on a direct, certain and actual damage.
(2) Except where otherwise provided by law, a civil claim emanating from an offence shall be barred after thirty (30)years even where it is embodied in a criminal action.
A party who brings a civil suit on the basis of specific facts, may afterwards, in respect of the same facts, either link his action to that of the Legal Department, or undertake a private prosecution, provided that he withdraws his initial civil suit.
With the exception of international conventions, the provisions of section 76 shall be applicable where the civil suit was brought in a foreign court.
PART II – THE AUTHORITIES RESPONSIBLE FOR POLICE INVESTIGATION
CHAPTER I – JUDICIAI POLICE
(1) The duties of the judicial police shall be performed under the supervision of the State Counsel by judicial police officers, judicial police agents and all other civil servants or persons to whom judicial police duties are assigned by law.
(2) In this capacity, the persons referred to in the preceding sub-section shall be auxiliaries of the State Counsel.
(3) In each jurisdiction of the Court or Appeal, the judicial police shall be under the control of the Procureur General.
The Procureur General shall evaluate, at the end of each year, the work of judicial police personnel referred to in subsection (1).
SUB-CHAPTER I – THE STATUS OF A JUDICIAI POLICE OFFICER
The following shall have the status of judicial police officers:
(a) officers and non-commissioned officers of the gendarmerie;
(b) gendarmes in charge even in an acting capacity of a gendarmerie brigade or gendarmerie post;
(c) superintendents of police;
(d) deputy superintendents of police;
(e) gendarmes and inspectors of police who have passed the judicial police officer’s examination and taken the oath;
(f) public servants even if they are temporarily performing the functions of head of an external service of the National Security.
Public servants and other public employees who have been assigned judicial police duties by special instruments shall his charge those duties under the conditions and within the limits fixed by the said instruments.
(1) Gendarmes who are not judicial police officers, police inspectors and constables shall have the status of judicial police agents.
They shall assist judicial police officers in the performance of their duties, and shall report to their superior officers of all offences which have come to their knowledge.
(2) Judicial police agents shall have no authority to take decisions to remand in police custody.
SUB-CHAPTER II – DUTIES OF THE JUDICIAL POLICE
Judicial police shall be responsible for:
(a) investigating of offences, collecting evidence, identifying offenders and accomplices and bringing them before the Legal Department;
(b) executing rogato11′ commissions of judicial authorities;
(c) serving court processes;
(d) executing warrants and court decisions.
(1) Apart from the duties defined in section 82, judicial police officers shall receive complaints and reports against persons and shall make prelimina11′ investigations according to the conditions provided for in sections 116 to 120.
(2) In cases of felonies and misdemeanours committed flagrante delicto, they shall exercise the powers conferred on them by sections 104 to 115.
(3) They shall have a right to request directly the assistance of the forces of law and order in the discharge of their duties.
(4) They shall receive instructions from the State Counsel to car11′ out all investigations or any additional investigation which he considers necessary.
(5) The State Counsel may stop any judicial police officer from continuing with the investigation.
In such a case, he shall inform that officer’s immediate superior of his reason for doing so.
Subject to the powers conferred on the State Counsel by section 83 (5), the judicial police officer who is first detailed to carry out the investigation of an offence shall be the only competent officer to carry out the said investigation.
However, the judicial police officer shall automatically hand over the cases to any agent mentioned in section 80 above by virtue of their special knowledge.
A non-military judicial police officer may investigate offences provided for in the provisions of the Military Justice Court when no military judicial police officer is available.
In such a case, he shall forward the case-file to the Ministry in charge of Military Justice.
(1) Judicial police officers shall be empowered to check the identity and situation of any suspected person, in accordance with the provisions of section 32, and where necessary, may detain him in a special police custody for not longer than 24 hours.
(2) Upon the expiry of this period, the person so detained shall be released, unless the detention is justified on some other legal ground otherwise the judicial police officer may be prosecuted under the provisions of section 291 of the Penal Code.
(1) A judicial police officer may, whether in a public place or a place open to the public, search or cause to be be assisted by a judicial police officer serving within the area into which he has entered.
(b) The State Counsel of the area shall be informed of these operations by the State Counsel of the jurisdiction which ordered the commission.
(1) The judicial police officer shall without delay inform the State Counsel of the offences of which he has knowledge.
(2) At the close of the investigations he shall forward directly to the State Counsel the original and a copy of his report as well as all other relevant documents.
(3) An inventory shall be made of all the objects seized.
They shall then be placed under seal and deposited with the Legal Department.
A copy of the report on the seizure shall be given to the person who had possession of the objects.
(1) The police report shall state:
(a) The date and time when each phase of investigations started and ended;
(b) The full name and the status of the investigator;
(c) Where necessary, the authorization referred to in section 88 (2).
(2) Each sheet of the original of the report or of the statement register shall bear the signature of the investigator;
(3) When all or part of a written report l”!” is devoted to the recording of statements from or to the confrontation of persons the said persons shall, after the reading and, where necessary, interpretation of the statements, initial each sheet of the report and all erasures, alterations and interlineations therein.
The interpreters shall also initial each sheet of the report and all erasures, alterations and interlineations not initialled shall be inadmissible.
(4) The last page of the report or statement register shall be signed by the maker, the investigator and by the interpreters, if any.
(5) Any person asked to sign a report or statement register but who does not know or cannot sign shall be asked to affix his right thumb-print to the document.
Where this is not possible the investigator shall choose any other finger and authenticate its print.
(6) The investigator shall, in case of refusal to sign or thumb-print, mention this fact in his report.
(7) Any person asked to sign a report or statement register may make any necessary reservations thereon before signing it.
Such reservation shall be explicit and unambiguous.
(8) Any person who is called upon make a statement may either dictate it the investigator or write it in a statement register or where there is none, write it on – any sheet of paper.
Unless otherwise provided by law, reports written by judicial police officers shall serve only as mere information.
CHAPTER II – POLICE INVESTIGATIONS
SUB-CHAPTER I – GENERAL PROVISIONS
(1) (a) A judicial police officer may, in the course of an investigation, question any person whose statement is likely to lead to the discovery of the truth.
(b) The person summoned for questioning shall appear and answer any question and if he fails to appear, the judicial police officer shall inform the State Counsel who may issue a writ of capias against him.
Such person shall be brought before the said State Counsel
(2) A judicial police officer may:
- conduct the search of a house, or premises and make seizures in accordance with the provisions of sections 93 to 100;
- remand persons in police custody, pursuant to sections 119 and following;
- request the assistance of any expert or of any person capable of assisting him in any given phase of the investigation; make a request in writing for transportation with immediate effect, in any public or private road, railway, water or air transport vehic1e.
The original of the written request shall be left with the carrier.
(3) In cases of felonies and misdemeanours punishable with at least two years imprisonments, the judicial police officer may, on the written authorization of the State Counsel, and under the control of the latter, in accordance with the conditions laid down in section 245, in the course of the investigations:
- intercept, record or transcribe all correspondences sent by means of telecommunication;
- take any photographs at private premises.
(4) Any one heard as a witness or as a person vicariously liable, may not, in any circumstance, be subject to remand in police custody.
(1) Searches and seizures shall be carried out by judicial police officers who possess search warrants.
However, he may act without a search warrant in cases of a felony or a misdemeanour committed flagrante delicto.
(2) Any search or seizure shall be carried out in the presence of the occupant of the place and the person in possession of the objects to be seized, or in case of their absence, their representatives, as well as two witnesses chosen from among the persons or neighbours present.
(3) The occupant of the place and the person in possession of the objects to be seized, or in case of their absence, their representatives shall have the right to search the judicial police officer before the latter commences his search.
He shall be informed of the said right and mention of it shall be made in the report of the fulfilment of this formality.
(4) In the absence of the occupant or of the person in possession of the objects or of their representatives, and in case of urgency, the State Counsel may, in writing, authorize the judicial police officer to conduct the search or seizure in the presence of the witnesses described in sub-section (2) above and one other judicial police officer or two judicial police agents.
(5) Where the judicial police officer cannot get in touch with the Legal Department, he shall proceed with the search and as the case may be, seizure in accordance with the provisions of sub-section (4) above and shall mention the action he has taken in his report.
(1) In the absence of a search warrant, searches, and seizures of exhibits may be carried out only with the consent of the occupant or of the person in possession of the objects to be seized.
(2) The consent shall be a written declaration signed by the person concerned, and if he cannot sign he shall make a thumb-print at the bottom of the declaration.
(3) The consent of the person concerned shall be valid only if he had been informed before hand by the judicial police officer of his right to object to the search.
Any judicial police officer conducting a search in connection with a specific offence may carry out a seizure in connection with another offence only if the latter attracts an imprisonment sentence.
(1) All articles seized shall be shown to the suspect or if he is not present, to his representative or to the person in possession of them so that he may identify them and initial them if necessary.
Where he refuses to do so, mention of this fact shall be made in the report.
(2) Subject to the provisions of section 97, ail articles seized shall in ail cases be shown to the witnesses in order that they may identify and initial them if necessary.
(a) An inventory of the articles seized shall be made on the spot, described in full detail and kept under seal.
(b) If it is not convenient to make an inventory on the spot, the articles shall be provisionally put away under seal until an inventory is made and they are finally sealed.
This shall be done in the presence of the persons mentioned in section 93 (2).
(c) If the sizes of the articles seized or of the conditions for their preservation so require, they may be put under seal without using a bag or envelope.
When a judicial police officer conducts a search, he alone shall have the right to examine the contents of the documents found in the place before they are seized.
He shall be bound by professional secrecy.
(1) The report on the search and seizure shall be drawn up in accordance with the provisions of section 90.
It shall be signed by the occupant of the place and the person in possession of the articles or in case of their absence, their representative, as well as the witnesses and any other person who took part in the search.
(2) The report shall state the full name, status, names of parents, date and places of birth as well as the permanent addresses of the signatories.
(1) No search may be conducted on a private house and premises between six (6) p.m. and six (6) a.m.
(2) However, a search already begun may continue after six (6) p.m. on the authorization of the State Counsel.
(3) In case of impossibility of getting in touch with the State Counsel, the judicial police officer may exceptionally continue with the search after 6 p.m. and shall, without delay, keep the State Counsel informed.
Failure to comply with the provisions of sections 93 to 99 shall render the search and seizure null and void.
However, where the search has been declared null and void, the articles seized in the course thereof may be admitted as exhibits if they are not contested.
(1) A judicial police officer may, in the course of an investigation, assign part thereof to any other judicial police officer under his authority.
(2) Any judicial police officer to whom any part of the investigation has been assigned shall in his report specifically mention the facts of such delegation.
(1) The entire judicial police investigation process shall be secret.
However, the secrecy of the investigation shall not apply to the Legal Department.
(2) Any person who assists in these investigations shall be bound by professional secrecy subject to the penalties laid down in section 310 of the Penal Code.
(3) Notwithstanding the provisions of sub-section (1), judicial police officers may with the approval of the State Counsel, publish press releases and documents relating to certain matters which have been the subject of the investigation.
(4) Press releases and documents published by the judicial police shall be disseminated without comments by the press.
Any violation of this provision shall be punished under sections 169 and 170 of the Penal Code.
SUB-CHAPTER II – FELONIES AND MISDEMEANOURS COMMITTED FLAGRANTE DEIICTO
(1) Felonies and misdemeanours are deemed to be committed flagrante delicto when they are in the course of being committed or when they have just been committed.
(2) Shall also be classified as felonies or misdemeanours committed flagrante delicto when:
(a) after the commission of the offence, the suspect is pursued by public clamour;
(b) soon after the commission of the offence, the suspect is caught in possession of an article or shows a sign or trace which tends to suggest that he took part in the commission of the felony or misdemeanour.
(3) There shall equally be flagrante delicto where a person requests the State Counsel or a judicial police officer to investigate a felony or misdemeanour committed in a house, which he occupies, or over which he has charge.
(a) A judicial police officer informed of a felony committed flagrante delicto shall immediately inform the State Counsel of it.
(b) Any notice whether given by telephone or other oral communication shall be confirmed in writing.
Within forty eight hours of the oral message.
(c) Mention of these measures shall be made in the report.
(2) The judicial police officer shall without delay visit the place where the felony was committed and shall take all necessary steps particularly:
(a) to prevent any person likely to supply useful information from leaving the lace without his permission, subject to the punishment provided in the Penal Code for defaulting witness.
He may not, under pain of prosecution for false arrest detain such person for more than 12 hours;
(b) to, where necessary, remand in police custody any suspected person;
(c) to ensure the preservation of evidence that may be used for the discovery of the truth;
(d) to seize any articles or documents used in committing, or which appear to be the product of the felony;
(e) to, in case of urgency, carry out his duties outside his territorial jurisdiction in accordance with section 88 (2);
(f) to conduct searches in the houses of persons suspected of either keeping documents or articles relating to the particulars of the offence or of having participated in the commission of the felony.
Articles which are not useful for revealing the truth shall, after the written approval of the State Counsel, be returned by the judicial police officer, to the owner or to any other person from whom they were seized, who shall acknowledge receipt thereof in the police diary.
A report of the return shall be drawn up.
(1) Searches in an advocate’s chambers shall be conducted only for the purpose of seizing documents or objects connected with legal proceedings or where the advocate is being investigated or where the documents or objects are unrelated to the practice of his profession.
(2) The search shall be conducted by the competent law officer of the Legal Department in the presence of the advocate and the President of the Bar Council or his representative.
It shall be conducted under conditions which safeguard professional secrecy and maintain the dignity of the advocate.
(3) Failure to comply with the provisions of the present section shall render the search null and void.
Searches in the office of a physician, a public notary or all other persons bound by professional secrecy shall be conducted in the presence of the competent magistrate, and if necessary, of the person concerned and of the representative of his professional organization, if any.
Except for the purpose of the investigation, any person who, without the authorization of the suspect or his counsel or of the person who signed or received the documents seized in the course of a search, reveals the contents thereof to a person not qualified to have knowledge of the same shall be subject to the punishment provided for in the Penal Code for breach of professional secrecy.
(1) Where it appears necessary in the course of an investigation to establish or to check the identity of any person, such person shall, at the request of a judicial police officer or one of the public servants mentioned in section 78 (1), make himself available for that purpose.
(2) Any refusal to submit to the identity check shall be punishable as a simple offence of the fourth class.
(1) Notwithstanding the provisions of section 88 (1) above, the judicial police officer may, in case of felonies and misdemeanours committed flagrante delicto, and where the investigations, necessitate, go outside, either his territorial jurisdiction, or outside the territorial Il jurisdiction of the Legal Department where he carried out his duties, to fol1ow up r his investigations.
In this case, he shall, under pain of nullity of the acts accomplished and disciplinary sanctions, obtain the authorisation of the State Counsel of his area of jurisdiction.
(2) The said State Counsel, shall, where necessary, inform the State Counsel of the jurisdiction to which the judicial police officer is going.
(3) The judicial police officer shall on his arrival and before carrying out his investigations, report to the competent State Counsel and in all cases, to the competent judicial police officer.
In the case of a felony committed flagrante delicto, the State Counsel shall be competent to carry out the investigation.
When the State Counsel arrives at the scene of the commission of the offence, the powers of the judicial police officer to carry out the investigation shall cease immediately unless the said State Counsel decides otherwise.
The State Counsel may issue a warrant or arrest against any person suspected of having participated in the commission of a felony and shall interrogate him on the spot upon his arrival.
He may only institute criminal proceedings against the suspect of a felony committed flagrante delicto after a preliminary inquiry.
The provisions of sections 104 to 112 above shall be applicable in cases of misdemeanours committed flagrante delicto.
(1) A suspect arrested flagrante delicto shall be brought by the judicial police officer before the State Counsel who shall proceed to check his identity, interrogate him summarily and if he decides to prosecute shall place him under temporary detention or release him on bail with or without sureties.
(2) In ail cases the State Counsel shall make a report on the measures he has taken and where he intends to prosecute him, he shall do so al the very nearest session of the court.
(3) The provisions of the present section shall not prevent the State Counsel from instituting criminal prosecution against the suspect, by way of a direct summons Or after preliminary investigation.
In case of suspicious death the judicial police officer notified of such death shall immediately report to the State Counsel.
The provisions of section 104 and seq. shall be applicable.
SUB-CHAPTER III – POLICE INVESTIGATION
(1) Judicial police officers and agents shall carry out investigations either on their own initiative or on the instructions of the State Counsel.
(2) The originals of the Police case files shall be forwarded to the State Counsel without delay.
(3) As soon as investigations are opened, the judicial police officer shall, under the penalty of nullity, inform the suspect of:
- his right to counsel;
- his right to remain silent
- a written information;
- a written or oral complaint; or
- a written report by a competent authority.
- two Court of Appeal magistrates;
- a representative of the Ministry in charge of Higher State Control;
- a representative of the Ministry in charge of the Public Service;
- a representative of the Ministry in charge of Finance;
- a member of parliament designated by the bureau of the National Assembly;
- the President of the Bar Council or his representative.
- shall be in writing;
- shall not have a judicial character and shall not be subject to appeal;
- shall contain all the elements for the identification of the means of communication to be intercepted, the offence which has 100 to this measure as well as its duration.
- either deposit a sum of money, the amount and conditions of payment of which shall be fixed by the Examining Magistrate, taking into consideration the resources of the defendant;
- or provide one or more sureties in accordance with the provisions of sections 224 and following;
- the notice of appeal the power of attorney, if any;
- the report prescribed in sub-section (1);
- the record of appeal of the police investigation; court processes; the submissions and memoranda produced by the parties before the court; the record of proceedings; all the interlocutory rulings given by the court; a copy of the judgment being appealed against.
- the appellant;
- the cross appellant or respondent;
- the Legal Department.
- the notice of appeal;
- the report referred to in section 483;
- the submissions and memoranda produced by the parties before the trial court and the Court of Appeal;
- the record of proceedings of the trial court and the Court of Appeal;
- all the interlocutory rulings delivered by the trial court and the Court of Appeal;
- a copy of the judgment appealed against and a copy of the judgment of the trial court.
- a copy of the judgment or a warrant of imprisonment;
- warrant of arrest issued by the Examining Magistrate or by the Inquiry Control Chamber or the court which delivered the judgment;
- a committal order issued by the Examining Magistrate or a committal order issued by the Inquiry Control Chamber if the person is an accused;
- if necessary, a copy of the legal provisions relating to accessories, attempt, joinder of charges and prescription;
- an extract of bulletin n °2 of the criminal record;
- five (5) years, for a sentence of fine;
- ten (10) years for a single sentence of imprisonment of up to six (6) months;
- fifteen (15) years for a single sentence of up to two (2) years;
- twenty (20) years for a single sentence of up to five (5) years.
- a copy of the judgment convicting him;
- an extract of his criminal record;
- Any other necessary documents, showing that he has paid fines, costs and damages.
- a copy of the judgment convicting the accused;
- an extract from the punishment register of the prison where the sentence was served, attesting to the conduct of the convict;
- an extract of bulletin n° 1 of the criminal record of the convict.
- a Borstal institution;
- a special section of a prison meant for the detention of minors.
- a written undertaking binding him over to be of good behaviour and to appear at any time when he is required to do so;
- a recognizance entered into by his father, mother, guardian or custodian to guarantee his appearance in court when so required;
- an oral engagement by any person worthy of trust, guaranteeing the minor’s appearance in Court.
- a magistrate of the bench, President;
- two Assessors, members;
- a Representative of the Legal Department;
- a Registrar.
- the court of the place where the offence is committed;
- the court of the place of residence of his parents, custodian or guardian;
- the court of the place where the minor has been found;
- the court of the place where the minor has been placed permanently or provisionally.
- hear the testimonies of witnesses; enable the minor or his representatives to put relevant questions to the witnesses;
- hear any statement the minor himself may wish to make, in which case the Presiding Magistrate shall put questions to the witnesses, or to the minor as he deems fit.