Dissertations / Theses on the topic 'Lenteur du procès pénal'
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Marcellin, Amélie. "Essai d'une théorie générale de la substitution en matière pénale." Thesis, Lyon, 2018. http://www.theses.fr/2018LYSE3043/document.
Full textFrom the Latin supine « substituere », substitution means to « replace someone (or something) by another one (or thing) to make him (or it) play the same role ». Used in several fields, legal or not, the mechanism is currently interesting regarding fight against prison overpopulation and slowness in criminal procedure. By the way, concerning the punishments, the « perfect » substantial substitution allows the penal judge to replace the prison term by a noncustodial sentence. With the « imperfect » substitution, the judge can give the delinquent a sentencing reduction, a suspended sentence with probation or a suspended sentence with community services. As for the penal trial, the « perfect » procedural substitution allows to avoid it. Alternative to judicial proceedings accelerate the procedure. The « imperfect » substitution allows to modify some rules related to the penal trial in order to strengthen its efficiency. In spite of its advantages, the substitution is not known and mastered enough by the professionals and the theorists. They denounce the lack of clarity and precision in rules relating to substitution. The current ambiguities damage its suitability. It is thus interesting to wonder about defining and establishing a general theory of substitution in penal case
Messeroux, Yasmine. "Secret et procès pénal." Thesis, Montpellier 1, 2011. http://www.theses.fr/2011MON10008.
Full textConfidentiality calls for the respectful preservation of the individual's rights and integrity during the criminal process. Therefore, it has been universally recognized and deemed important worldwide. Seen as sacred to the individual, confidentiality is a continuation of Human rights. Seen as an obstacle to any attempt of governmental intrusion, it is therefore important to the protection of the individual's rights, as stated by the following international bodies of law: the Universal Declaration of Human Rights adopted by the United Nations General Assembly on December 10, 1948, the European Convention on Human Rights and Basic Freedoms adopted by the European Council on November 4, 1950, and the International Covenant on Civil and Political Rights adopted by the United Nations on December 16, 1966. This international protection is reinforced by internal decisions made in every country, combining in most cases some aspects of civil and cri minal nature. Confidentiality appears in every stage of the criminal process : during the police investigation and charges or during trial and jury deliberations on the innocence or guilt of the defendant. Even beyond the trial, confidentiality becomes integral in the rehabilitation of the condemned
François, Lyn. "La médiatisation du procès pénal." Limoges, 2001. http://www.theses.fr/2001LIMO0483.
Full textBosc, Valérie. "Le concept de procès pénal." Montpellier 1, 2004. http://www.theses.fr/2004MON10061.
Full textSubject to a combination of varied influences, stability has been stripped from the very concept of the legal trial. Its temporal parameters have been transformed as a result of the concentration of multiple factors: a rising number of incriminations, the change in function of fundamental players and even the increase in collective lawsuits. Equally, alongside this, the increasing hold of the European convention for the rights of man merely adds to the difficulty in soliciting clear-cut and inviolable boundaries around this institution. By promulgating internal jurisprudence and providing a separate definition of the notion of what is penal, the European court of human rights rulings have led to uncertainty in the basic understanding of the legal trial. The dispersion of the power to repress crime corresponds to the dissolution of the concept. This dissemination, both in form and in substance, is of further interest when it is established that it does not prevent a stable apprehension of the concept of legal trial definitively. To the contrary, the latter can be rebuilt around elements that were originally considered separate. Thus, from different sets of definition criteria, through their multiplicity, an overall order and a subjacent structure can be achieved. Analysing the concept offers a newer and wider view of the legal trial giving a better insight into its density and universality
Desprez, François. "Rituel judiciaire et procès pénal." Montpellier 1, 2008. http://www.theses.fr/2008MON10030.
Full textTrial is subject to a double kind of formalism. Procedural rules, which are an implementation of the guiding principles of the trial permitting a good administration of justice, are combined with rites which are a vector for a sacralisation of justice and which can be accounted for by the willingness to reach an ideal of justice. Rituals are inherent in the judicial institution as a whole, but have an even more important value in the field of criminal law, in particular in trial hearings. They enable a representation of justice’s virtues and constitute a basis for contradictory debate. However, legal rituals are not as important now as they used to be. First of all, they have been affected by managerial justice which favours efficiency to the detriment of symbols and develops a type of justice that circumvents the traditional hearing which is the main space where rituals can be performed. In addition, justice, in particular criminal justice, has undergone a major transformation what has consisted in highlighting the guiding principles of the trial to the detriment of the sacralisation of justice; procedural rules are privileged over rites. What’s more, while ritual formalism mainly applies to hearings, procedural formalism concerns criminal trials. Besides, this transformation is larger than the trial itself, and has an impact on both the judge’s legitimacy and on the res judicata
Siber, Jonas. "L'image et le procès pénal." Thesis, Université de Lorraine, 2017. http://www.theses.fr/2017LORR0116/document.
Full textToday, with the rise of new technologies, the image is playing a leading role in our society. If it has been incrementally utilised by the general public, the field of law has also increasingly developed and put this tool to use. The advent of the image has impacted all areas of law, including criminal law and more specifically criminal proceedings. However, it would be wrong to say that it is currently present throughout the whole procedure, where its appearances are surprisingly rare. This leads us to question the place and role of this multiform tool within this wide system. In reality, the image covers all aspects of the criminal trial in its entirety, from the first stage of the investigation to the delivery of the judgement. And even more, as the image goes beyond this framework, by its upstream presence before a criminal act is committed, and downstream from the hearing. In this way, the image appears in a multiplicity of forms throughout all steps of the procedure. However, the diversity of its uses is not the only explanation to its recurring presence, as it also has the ability to serve different purposes. The different forms of an image allow for a variety of uses and purposes, sometimes complementary, but other times very diverse. We can notice, nevertheless, a fundamental distinction between an image serving probationary purposes and used for the proper administration of justice. Present throughout the criminal proceedings, the image will clearly be confronted with all the main principles that govern criminal matters, particularly in its procedural aspect. At a time when a comprehensive reform of criminal proceedings is constantly put forward, the study of a transversal notion, simultaneously serving the establishment of the truth and the good administration of justice, may be necessary if the system needed to evolve. The image would then be considered as the breadcrumb trail on the « path leading to the sentence »
Viennot, Camille. "Le procès pénal accéléré : étude des transformations du jugement pénal." Thesis, Paris 10, 2010. http://www.theses.fr/2010PA100207.
Full textThe criminal trial has evolved under the influence of the creation and development of procedures aiming to accelerate response to offences committed. A new procedural model – the accelerated criminal trial – has progressively appeared, due to two main changes.The first change comes from the increase in the number of judging figures through various delegations of the judging function. Many protagonists, whether part of the judiciary or not, are given the judging function, traditionally assigned to a judge from the Bench. Some belong to the judiciary, such as the public prosecutor or the magistrate judging alone. Others, out of the judiciary – professionals who are not judges and judges who are not professionals – also take part in the criminal trial.The simplification of the judging process represents the second change. Closing submissions and summing-up are gradually limited thanks to the use of the consent of the offender and the avoidance of Court hearings in the presence of both parties. This simplification is also permitted by the restriction of potential challenges to accelerated procedures. The rights of defence thus suffer limitations and potential legal actions taken by victims are evaded not to be detrimental to the rapidity of procedures.Therefore, the delegation of the judging function combines with the simplification of the judging process to shape, beyond the heterogeneity of the examined procedures, this new procedural model
Piot, Philippe. "Du caractère public du procès pénal." Thesis, Université de Lorraine, 2012. http://www.theses.fr/2012LORR0111/document.
Full textDescot, Nathalie. "La participation effective au procès pénal." Saint-Etienne, 2006. http://www.theses.fr/2006STETT081.
Full textThe requirement of an "effective participation in the criminal proceedings" emerges from the many decisions of the European Court for Human Rights, thus endowings it with its specific meaning and its own content. An effective participation in the criminal proceedings amonts to an understanding of the various stages of the proceedings in order to act dynamically at the heart of the procedure. The requirement of an "effective participation in the criminal proceedings" finds its meaning at the contact with individual criminal subjects, to the interest of whom it establishes an uncompromising protection, for these subjects are incapable to effectively take part in the proceedings without adjustements being made in the ordinaryproceedings. It is thus essential to give the judge the appropriate tools to identify each situation of incapacity in order to apply to those incapable subjects special procedural rules, which are intented to remove obstacles in a full and effective participation in the proceedings. For each situationof incapacity the objectif is to elaborate procedural adjustements, or to reinforce those already in use, according to their intrinsic or extrinsic characteristics, which are the grounds for the incapacity. This established increased protection towards those incapable subjects enables them to benefit a full "effective participation in the criminal proceedings"
Bossan, Jérôme. "L'intérêt général dans le procès pénal." Poitiers, 2007. https://hal.archives-ouvertes.fr/tel-01882046.
Full textIn France criminal proceedings are usually understood as opposing one individual, defending his or her own interest, and the community at large, seeking after public interest. The current increasing complexity of the matter leads to revaluation of this antagonism. Classically, public interest is supposed to be justifying the repression of criminal offenses or else the search for truth. This also implies a certain efficiency of the institution of justice and the respect of the procedural rules that are necessary to administrate justice properly. The confrontation of all those stakes lies in the determination of public interest which implies to strike a balance between these different issues. The search for a balance is not fixed. It evolves depending on various criminal proceedings or even within a single case. The interpretation of criminal proceedings, which influences the whole subject, differs depending on the party that makes it. Nevertheless when we determine a meaning to public interest we fix the notion and put it into a position. Taking advantage of the force of conviction attached to public interest, the protagonists, the public ones as much as the private ones, can raise their arguments in a criminal case. Therefore it is necessary to relativize, as far as possible, the tendency to refer to public interest to justify the reinforcement of one party's powers on the other, or take legal actions. Thus the current growing fragility of public interest is not obvious. The pursuit of public interest is still linked to the criminal proceedings at two levels. It is above a guiding line of the criminal proceedings and it below a form of justification
Daoust, François. "La criminalistique et le procès pénal." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020003.
Full textFrance believes in an idealized vision of forensic science, the probative force of which would provide incontestable answers to the criminal trial. This belief is historical and is based on the work of the French pioneers who paved the way for what some have called, by abuse of language, the contribution of scientific proof. But the forensic landscape is not as simple as the actors in the criminal trial assume. Existing forensic systems, training of stakeholders, knowledge of the informational value of the trace with its legal life as well as its scientific traceability, sometimes subject to a normative framework outside the law are all rarely dealt with. Through the various subjects of forensic science, by perceiving their content and their scientific power, but also by their limitations, they shed particular light on the interpretation of analytical results in France and what it should be the judicial time required for the conduct of criminal proceedings. This presentation highlights the existence of the realization of scientific acts often neglected and that relativizes the notion of scientific examinations and expert appraisals yet sacred by law and jurisprudence. This study of criminalistic in the criminal trial highlights the perception of the actors, the difficult mutual understanding with the experts, but also those of more institutional administrations, showing that the interests are sometimes divergent between an accounting vision Justice and the search for truth, which is nevertheless inscribed in the texts. A presentation of the perception as well as the implementation of forensic science in comparative law through accusatory procedure and jurisprudence sheds light on legal debates that strike the door of our inquisitorial system by the increasingly engaged introduction of contradictory. A better understanding of the sciences introduced into the criminal process and making them accessible should give the actors a more relevant capacity for discernment and interpretation, in particular for judges who must draw up the criminal proof from all these scientific knowledge, answers and evidences
Abdellaoui, Adil. "L'expertise "mentale" dans le procès pénal." Thesis, Montpellier 1, 2013. http://www.theses.fr/2013MON10005.
Full textThe technical and scientific advance of the last years seems to have drawn the court-ordered appraisal into the center of the criminal trial. The expert, who has become the person holding the "absolute truth" was indirectly granted a power of "life or death" on the person prosecuted, thanks to his conclusions. The scientific truth, resulting from exact sciences, might be at the origins of the recognition of guilt of the defendant, but what about more subjective sciences, such as those concerning the mental health ? Indeed, these are more likely to depend on the interpretation of an often hypothetical situation and to the evaluation of the mental state of the defendant, who brings up his own reality. Nevertheless, we have to admit that in spite of the randomness of the "mental" expertise, this measure of instruction erected as a proof, for which the convincing value alone takes over the inner conviction of the judge and the jurisdiction. The legal and judicial abuses, due to "appraisal syllogism" without real fundament, clearly impede on the most fundamental rights of the persons subject to trial. The legal certainty, which is then questioned, does not seem to spark off legislative action to contain these abuses despite some recent reforms. What about the judging function when the expert seizes some of the judge's prerogatives? What are the consequences on the outcome of the criminal trial?
Robert, Véronique. "L' administration dans le procès pénal : contribution à l'étude du particularisme de l'administration dans le procès pénal." Paris 1, 2004. http://www.theses.fr/2004PA010319.
Full textBunbumroung, Wannachai. "Le procès civil en Thaïlande : la lenteur de la procédure et ses remèdes." Université Robert Schuman (Strasbourg) (1971-2008), 1997. http://www.theses.fr/1997STR30006.
Full textThe Court of justice in Thaïlande is an institution which exercises judicial power in the name of the king and has a significant role in protecting various rights and liberty of the citizen as prescribed in the constitution and other laws therefore, the duration of time used for a trial in the court should not be so long that it causes troubles or leads to injustice. This study focuses on two important factors of delay in civil procedure. The first part studies defaults in function of juridical institution such as the congestion of courts and the delay in judiciary work, the shortage of judges and judicial officials and funds for the judiciary, an uncertainty in indepence of judges an excessively concentrated and dysfunctional judiciary administration the second part analyses different stages of procedure of which some rules reduce capacity and could be devious for abuses or dilatory aim. In order to solve these problems, several approaches are recommended, especially the reform of the justice administration and organisation, and the role of judges would be active enough to manage effectively the procedure
Demarchi, Jean-Raphaël. "La preuve scientifique et le procès pénal." Nice, 2010. http://www.theses.fr/2010NICE0038.
Full textAbou, Yazbeck Chantal. "Le bien saisi dans le procès pénal." Aix-Marseille 3, 2003. http://www.theses.fr/2003AIX32019.
Full textThe penal procedure's role consists in leading to the truth manifestation in ordre to identify the possible guilty persons and to punish them for their acts. However, society cannot live if security and justice do not exist. This justify that the staff officers who are in charge to search and verify the infringements of the penal law have means to the necessary coercitions. Therefore, thez have the power to "seize" the particulars' goods (property). In democracy, the state must insure the citizens' protection so as the protection of the public interest. As we have already proven, the conciliation and the safeguard of these two interests: the public interest and the fundamental rights, two interests which are antagonistic and sacred, in a state of right, is not an obvious and simple work. All the way of our study, we have been able to ascertain that the common law has always been wavering between these two interests, trying to conciliate and safeguard them. In addition, it is the same when the seized good is the justice's disposition and used as a proof, to charge or discharge, in the penal proceeding; or when it is a matter of restoring the good, which is under the hand of the justice to the interested persons. As verified later, the attempt of the common law in the safeguarding and conciliation of the interests was not exemplary, it is not exempt from lacunas and certain contradictions and sometimes it wanders from the "good sense". Therefore, it is obvious that a reform in the depth of the French system of the penal procedure is indispensable. A reform of the base is required
Binet-Grosclaude, Aurélie. "L'avant-procès pénal : étude comparée Angleterre-France." Paris 1, 2008. http://www.theses.fr/2008PA010297.
Full textHennequin, Shirley. "La preuve numérique dans le procès pénal." Thesis, Aix-Marseille 3, 2011. http://www.theses.fr/2011AIX32063.
Full textAs a medium of the new society of information and communication and as a tool used both for work and play, digital technology has become ubiquitous. It has become man's virtual memory and represents a preferred field for investigation, an inexhaustible source of information. The principle of freedom of evidence in criminal law has allowed digital technology to play a major role : sometimes as evidence of infringement, of its author's imputability and/or identity, it has become inescapable. This general assessment is however limited, as it does not mean that any action can be taken anyhow, whatever the place or time ; digital evidence must indeed be searched for and collected within the rules governing it. Being subjected to the judge's inner conviction, the digital data will also have to offer guarantees of integrity and reliability before being considered as evidence on balance, these observations require that the general characteristics and expected role of digital evidence should be studied in order to examine how this new kind of evidence can be confronted with the system of evidence in criminal law
Cransac, David. "Essai sur les finalités du procès pénal contemporain." Thesis, Toulouse 1, 2017. http://www.theses.fr/2017TOU10033.
Full textPenal trial has always fascinated as much as it frightened, both because of the greatness of the values it protects and because of the ordinary and spectacular nature of its ceremony and its language. For all that, contemporary criminal justice attracted suspicion, even disapproval of the public opinion. The integrity of the working of the judicial institution and its capacity to reply to criminal phenomenon are, these days more than ever, disputed. Where such a discredit over criminal justice comes from and how to solve it ? Philosophically built on the ideas of Justice and truth which are its ideological foundations, the contemporary penal trial proves to be far away from these concepts when it is applied. These last decades, the reinforcement of the need of speed and profitability of the judicial procedures has deeply affected the features of the criminal justice. In addition of this rationalization of the procedures, the consolidation of the subjective approach of the penal trial (i.e. focused on the protagonist, who can be the offender or the victim) has finalized its detachment regarding its traditional purposes, presumed oriented towards the protection of the interests of the society as a whole. The analysis offers to think seriously about the aims of the contemporary penal trial, in order to reconcile the Institution with its beneficiaries, whether they are understood as citizens, taxpayers or as answerable to the law. This will aim to proceed to the critical analysis of the perverted aims of the contemporary penal trial, by means of a deconstruction of the appropriated theoretical and philosophical ways to justify its precarious architecture. This will also aim to start over, from these ruins, the possibilities of the penal trial of tomorrow, which purposed would be restored in favor of a reconciliation of the French with their justice
Trassard, Cédric. "Le corps absent du procès pénal : l’éclatement spatio-temporel de la parole et de l’image dans le procès pénal du XXIème siècle." Paris 10, 2011. http://www.theses.fr/2011PA100205.
Full textSociety is changing. So is Crime, and financial imperatives have found their way inside the realm of Law. Criminal procedure is following this trend. The spoken word still occupies a prominent place, but its spatial and temporal contexts have changed. The image of the ideal trial held in a single courtroom in the presence of the judges, the parties and the public is now undermined. In the same way, the oral character of the trial and its heuristic value have been altered. The spoken word reproduced during the judgment audience tends to become exceptional, and is usually confined to the investigations or is transmitted from a distant place. As a consequence, it becomes possible for the criminal trial to be both here and elsewhere, both present and absent: the XXIst century criminal trial is witnessing a spatiotemporal break-up of image and of the spoken word. The witness (and criminal informants) protection mechanisms inexorably lead to a spatiotemporal break-up of image and of the spoken word, and to a degradation of the usual characteristics of evidence (given orally, and with due hearing of the parties). The use of videoconference breaks up the spatial unity of criminal trial and revolutionizes not only the modality and the place of appearing in court, but also the public character of court proceedings
Castellon, Léa. "La place de la victime dans le procès pénal." Thesis, Paris Est, 2017. http://www.theses.fr/2017PESC0097.
Full textThe place of the victim in the criminal trial is complicated and ambiguous. In current law, the victim enjoys rights and means of action in the criminal trial which guarantee her a real part. For example, as the prosecution, the victim can activate the public action and she can ask for the repair of her damage. The victim is not any more the forgotten of the criminal trial, she became a full part. However, in spite of an obvious strengthening of the part of the victim in the criminal trial, an imbalance of the rights and the means of action persists between the parts in every stage of the criminal procedure. The improvement of the procedural balance between the parts in the criminal trial has to continue not to put aside the victim
Lavric, Sabrina. "Le principe d'égalité des armes dans le procès pénal." Thesis, Nancy 2, 2008. http://www.theses.fr/2008NAN20007.
Full textThe principle of equality of arms has emerged in french criminal procedure under the influence of both european human rights law and constitutional case law. Part of the right to a fair trial before the european court of human rights, the duty of a balance between the rights of the parties, now roclaimed in front of the criminal procedure code, meets several problems of application to the french criminal process. The common law origins of this principle seem to be opposed to the french judge’s general conception of the equality of arms. The particular relation of this last to the european norm has, in addition, led him to remodel the meaning and the impact of the notion in french law. If it tends today to increasingly impose as a leading principle of the french criminal process, the principle of equality of arms somehow seems to go against the intrinsic face of it. Structurally inadapted to the french criminal process, it could even, in fine, in its “denaturated” version, contribute to deeply destabilize it
Arnaud, Paul Robert. "Substituts ou compléments du procès pénal en droit comparé." Paris 2, 1997. http://www.theses.fr/1997PA020081.
Full textCorioland, Sophie. "La place de la victime dans le procès pénal." Strasbourg, 2009. http://www.theses.fr/2009STRA4036.
Full textHaving suffered from an offence, the victim can seek compensation for the damage suffered by pursuing the civil action. French law gives the victim the possibility to act before the criminal judge, even if he or she does not request damages. Hence, the victim becomes a party to the criminal trial. This quality of civil party can be also granted to associative structures yet not victims of the offence. The rights that accompany the status of victim, whether he or she filed for civil action or not, have been considerably strengthened over the last thirty years. The injured party now enjoys expanded opportunities for action at each stage of the proceedings. Furthermore, the legislator modified some procedural rules to adapt the criminal trial to this new party, even if some adjustments are still needed. Nevertheless, the consecration of such a place led to an upheaval in the course of the trial, at the expense of the rights of the other parties. Therefore, for the sake of the criminal trial’s balance, limits must be set in the granting of the status of civil party and in the exercise of the subsequent rights
Benjeddi, Abderrahim. "La victime au procès pénal : étude du droit français." Poitiers, 1986. http://www.theses.fr/1986POIT3007.
Full textThe introduction being devoted to the definition of the victim and the penal law-suit, then we have attempted at determinating the victim's part in the procedure. The victim is essentially concerned in three stages of the law-suit : the first session, the preparatory examination and the phase of the judgement. Thus the first part will concern the first process. The aggrieved party can take by itself the initiative of implementing the law-suit. It can also intervene in a law-suit apened by the public prosecutor. An account of its constitution, the victim becomes party in the suit. It makes it possible for him to take part in two main stages : the preparatory examination and the phase of the judgement. However, his situation can vary from one phase to another according in procedure implemented by the law-maker. Indeed, in a second part, we will see that the plaintiff enjoys, in front of the examining magistrate and the court of accusation, comparative limited powers but equal to those granted to the person accused in order to make it possible for him to ensure his defense. However, in a third and last part, the victim recovers all his means, especially the opportunity of taking part in contradictory debates and obtaining a decision of justice
Schenique, Laurie. "La réforme de la phase préparatoire du procès pénal." Thesis, Nice, 2013. http://www.theses.fr/2013NICE0011.
Full textThe preparatory phase of a penal trial is a decisive stage. It is a variable period of time during which a case is prepared for judgement. The phase includes investigation, prosecution plus preliminary investigation & hearing stages. It takes place ahead of the penal trial. By definition it is complex and detrimental to the fundamental freedoms of the individual. Consequently, it is a period involving a tricky balancing act to reconcile two antagonistic interests: on the one hand, protecting society, by searching for the truth and the author of a crime, and, on the other hand, protecting the suspect. On-going developments in European law on Human rights and renewed criminal procedure sources raise issues in terms of the stance that French law will adopt on rules applicable to this fundamental stage in a penal trial. Anxious to achieve perfection, over the past twenty years the French legislator has persistently reformed the preparatory phase of the penal trial, on occasions even going as far as to overturn the balance of criminal matters in general. Thus, the roles of the institutional players in the penal trial and the rights granted to each of the parties during the preparatory phase stage have been considerably amended. Motivated by the ideal of creating a universal trial model based on a notion of fairness and an increased respect for defence rights, the legislator appears to be on a constant quest for the ideal criminal trial. However, is it really possible to reconcile the irreconcilable? Is the actual purpose of a criminal case to achieve a perfect balance between the safety of society and the protection of the individual? Isn’t such an idea utopian?
Dion, Abel. "Le dédommagement de la victime dans le procès pénal." Master's thesis, Université Laval, 2018. http://hdl.handle.net/20.500.11794/35446.
Full textAgossou-Penel, Miflinso Lisette Nina. "La contrainte dans la phase préparatoire du procès pénal." Thesis, Montpellier 1, 2011. http://www.theses.fr/2011MON10045.
Full textIn the criminal procedure, develops a contradiction for the fact that we assign to this material at once the repression of the crime and the protection of the rights and the liberties of the persons involved in the commission of the crime. This peculiarity of the criminal procedure, which costs him his stability, is more perceived in the preparatory phase of the penal trial. It is at this level that everything takes place. The penal trial itself comes to bring to light only elements collected during the investigations. The coercive powers of the authorities loaded with inquiries are diversified. But, in the name of the principle of the presumption of innocence, the use of the coercion in the preparatory phase of the penal trial has to satisfy the requirements of necessity and proportionality. The European Court of Human Rights concerns an attentive glance the execution of measures of constraint, which constitute the negation of the guaranteed individual rights and the liberties by the European Convention of Human rights. These measures remain exceptional towards the constitutional principles. The rights which the legislator grants to the persons who are the object of it are the counterpart. But these rights are not absolute. The persons subjected to constraint above all judgment benefit from a relative protection which varies according to their age, the gravity of the constraint in which they are held and the nature of the considered breach
Tadrous, Saoussane. "La place de la victime dans le procès pénal." Thesis, Montpellier 1, 2014. http://www.theses.fr/2014MON10042/document.
Full textAs time went on, the victim acquired a very solid place and has a considerable role within the criminal trial. Except for the phase of the execution of sentences, the victim actually intervenes in the repressive trial as a party. Furthermore, the victim who normally only exercises the civil action for the repair of the damages suffered by a criminal offense, interferes today in the « public action » to the point that blurs the borders which existed previously between the private action and the public action.The meaning of the criminal trial has therefore been renewed. Its finalities have been shaken, the criminal justice response has been diversified and even the role of the actors in the procedure have been modified. The study of the rights which are granted to the victim and the study of the role which the victim exercises within the repressive trial revealed the ambiguity of its action. It therefore seemed necessary to clarify the place of the victim within the criminal Trial
Roussel, Gildas. "Mise en œuvre de la suspicion et procès pénal équitable." Nantes, 2007. http://www.theses.fr/2007NANT4015.
Full textSuspicion is on a reasoning which, from the observation of facts, allows to infer the probability that a certain person has committed an offense. It seems particularly adapted to the criminal trial. The goal of criminal procedure is to organize its implementation in order to make punishment possible. It must respect fair trial requirements as layed out by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and by the French Criminal Procedure Code, in its preliminary article. Criminal trials must be fair. They must be balanced. Yet suspicion is what destabilizes procedural equity. For it allows to presume a person is a suspect and thus is detrimental to the rule ‘innocent until proved guilty’. Furthermore suspicion is part of an ‘effisciency logic’ which has been prevailing in recent criminal procedure evolution. Investigation forces and prosecution services are getting stronger and stronger in order to be increasingly able to look for suspects, to identify them, to prove they’re guilty, and this as early as the investigation phase. Meanwhile, judges’ powers, particularly investigating magistrates’, decrease. For these reasons, trial must reach a new equilibrium. This will only be possible if, firstly, prosecutors and judges’ powers are redistributed, especially control of procedure and case setting. It will only be possible if, secondly, suspects obtain the status of defendants, which means criminal procedure must abide by fundamental principles such as contradiction, equality of arms and defense rights – including the right to debate about suspicion as early as investigation
Diouf, Ndiaw. "La situation des partis au procès pénal pendant l'instruction préparatoire." Paris 1, 1992. http://www.theses.fr/1992PA010288.
Full textThe preliminary investigations are concerned with the finding and the collection of necessary elements for the judgment of infractions. There fore it is a very important step in the penal proceedings. During the instructions there are two persons who are mainly concerned : the accused and the public prosecutor. However the desire of punishing the offender that must not hide the necessety of giving to the victim the reparation which is due to him. So, appears a third person whosre rights are equal to those of the accused one. Looking through the positions of these persons we can find out deep inequalities. In fact the law has given a lot of prerogatives to the public prosecutor to the detriment of private parties. This kind of situation may be detrimental for the finding of the truth. To prevent that it is necessary to give at the private parties to get informed and to express thenselves
Gachi, Kaltoum. "Le respect de la dignité humaine dans le procès pénal." Paris 2, 2008. http://www.theses.fr/2008PA020095.
Full textGelato, Cynthia. "L'équilibre procédural lors de la phase préparatoire du procès pénal." Thesis, Aix-Marseille, 2019. http://theses.univ-amu.fr.lama.univ-amu.fr/191217_GELATO_925hyq243gdx875yuazp213sdbw_TH.pdf.
Full textBalance is a central notion in the French concept of criminal procedure. However, any legal definition exists about it. It is a common-sense word that the law uses to get the searching of equality across. Therefore, this notion depicts a situation between two equal and opposed forces of which results an idle state. Yet, balance cannot be defined through mathematical function f, which is a constant that doesn’t know any influence from the variable (x). To be constant and to get some balance, the function f must not be affected by any variable. Balance among criminal procedure is the only one to be respected insofar as it corresponds to a balance of the society maintained by the law. The latter is trying to eliminate the variations of which procedure could be a victim through the violation of the rules protected by criminal law and which are created for the purpose of maintain balance. Hence, by considering its mathematical definition, balance can exist in criminal procedure and not within it. Nonetheless, a solution can be considered: without enabling to achieve a balance, it permits getting closer thanks to the notion of equity. Equity can be defined as a variable function, which, without obtain a fulcrum, can approach it, by treating either two forces in the same way, or treating unevenly two unequal situations. Thus, it gives the possibility for the law to adjust well to the facts. It will thereby solve the imbalance but for creating balance. Then, it leads to the phrase of the European Convention on Human Rights which is the “fair balance”. If the balance between the parties is an impossible search, equity offers a favourable remedythe European Convention on Human Rights which is the “fair balance”. If the balance between the parties is an impossible search, equity offers a favourable remedy
Delas, Audrey. "Les personnes morales de droit public parties au procès pénal." Nice, 2012. http://www.theses.fr/2012NICE0041.
Full textUnder the principle of separation of administrative and judicial authorities, only the administrative judge should be competent when the dispute concerns a legal person of public law. Nevertheless, the criminal law procedure and penal code integrate these abstract entities. It is expressly provided since the promulgation of the 1994 penal Code, legal responsibility of legal persons of public law. However, both in substance and in form the existing legislative arsenal does not seem adapted to the specific legal entities of public law. In addition, these entities are not only authors, speaking at public action but also actors in the civil action. On one hand, they may be defendants in civil actions. Indeed, the Authority may be called collateral for offenses committed by officials as a result of a lack of service. However, the case for intervention are very rare since the principle is the incompetence of the judge to judge on the civil administration because of the principle of separation of administrative and judicial authorities. On the other hand, the legal person of public law may assume the role of plaintiff. However, the plaintiff is seeking redress or revenge. A legal person of public law does not seem legitimate to seek revenge as an abstract entity or to seek redress for a violation of his feelings. In each of the roles it can hold the legal person of public law seems to find its way with difficulty
Atoui, Mohamed. "Les droits de la victime dans le procès pénal en Algérie." Perpignan, 2009. http://www.theses.fr/2009PERP0858.
Full textInchauspé, Dominique. "Innocence et vérité dans le procès pénal français et anglo-saxon." Thesis, Paris Est, 2016. http://www.theses.fr/2016PESC0050.
Full textThis study shows that the criminal process finally acquires more consistency than the crime itself. The “criminal adventure”, namely the tragical story of the crime itself, turns into “the judicial adventure”, namely the path of justice towards the final decision (conviction or dismissal). Whether it deals with the French or with the Anglo-Saxon models, the legal rules are so complicated that they create a judicial logic which is specific and clipped from the facts of the case. In comparison, the motives and the circumstances of a crime are always simple. Accordingly, the judicial issue appears to be more (and often too much) elaborated than the crime itself.The study also shows the unchanging character of the criminal justice. Whether it is in France or in the Anglo-Saxon countries, the fundamentals of the two justices which are concurrent – inquisitorial model and adversary one- are the same that in the Middle Age. Of course, some reforms happened. The importance of the rule of the contradictory increases, etc. However, the main concern of the French justice still deals with a pretrial investigation which is very thoroughly conducted by a state agency. The Anglo-Saxon model always lies in the confrontation of two thesis with a practical advantage given to the prosecution. These different approaches by the two justices are attributable to a different social philosophy. The status of the suspected person greatly differs whether he is prosecuted in France or in the Anglo-Saxon countries: in France, this status is a matter of the search for the truth; in the Anglo-Saxon countries, this status is in practice that of an almost guilty one, even if his guilt must be proved beyond a reasonable doubt.This social and/or ethic philosophy recuts another one: the political philosophy. In France, the individual is assisted since the State is deemed to be “stronger” than him; in the Anglo-Saxon countries, the individual is a free man; accordingly, he is solely responsible for his acts. Therefore, in France, the State wants to fix up its own opinion about the crime; in the Anglo-Saxon countries, the confrontation of the prosecution and the lawyer outdoes all the rest, in particular the truth. Moreover, in these countries, according to the freedom and the independence of the individual, an undue importance is given to confessions.However, the Anglo-Saxon political philosophy is an extraordinary lever for the history and the liberty and also for the economic expansion. Without it, the continental countries would not have been able to be freed from the conquerors of the two world wars and the cold war. Without it, the US would not be a forefront of the progress.We do not consider that the Anglo-Saxon world made few positive contributions to the criminal proceedings. Indeed, this is the famous English Habeas Corpus Act of 1679 which created the idea of a reasonable time to be tried in court and, if not, to be released from prison. From the English comes the idea of an explicit list of rights of the defence, in particular in some articles in the Magna Carta of 1212 and then officially included in the Bill of Rights of 1689. From the Americans comes the idea of making the rights of defence sacred through the amendments of the constitution. We remember that this idea arrived late in Europe with the ECHR.Therefore, the study shows that the Anglo-Saxons countries which benefit from a reputation of pragmatism have rather acted as theoreticians of criminal law. They have provided the world of criminal justice mainly with contributions close to symbols. They have underestimated the consequences of these symbols in the practice of the criminal proceedings. The study shows also that the French, who are often known for their dogmatic approach of problems, have a better understanding of the criminal proceedings.The study shows especially that the Anglo-Saxon world of criminal justice and the French one totally ignore each other
Schulz, Romain. "L'intervention de l'assureur au procès pénal : contribution à l’étude de l’action civile." Thesis, Nancy 2, 2009. http://www.theses.fr/2009NAN20005/document.
Full textThe intervention of an insurer to criminal proceedings concerns the insurer of the victim, of the defendant or of the civilement responsable (i.e. the person legally responsible for the defendant’s deeds under vicarious liability). The insurer intervenes as a person who may guarantee compensation of the losses arising from the offence. Then the insurer takes part to the civil action (action civile, i.e. the claim for compensation brought before the criminal court, who is competent regarding this action in France), rather than to criminal proceedings which is first about criminal prosecutions (action publique) and also possibly about civil action. The issue of intervention of insurer to criminal proceedings is strongly related to the issue of the civil action brought before a criminal court. Under French law, principle is that insurers are not allowed to intervene to criminal proceedings, according to a case law established on the basis of provisions of French Criminal Proceedings Code (especially Article 2). However, the Law of 8th July 1983 inserted in the said Code provisions allowing insurer’s intervention, in a limited way regarding the scope of the intervention as well as its aim and effects. This system reveals the conception of civil action prevailing in France. As a matter of fact, these solutions deserve a critical examination. A critical analysis of intervention of insurer to criminal proceedings shall be operated through a renewal of the analysis of civil action. This way we may consider successively the principle of the participation of insurer to the debates before criminal court and the rules of the intervention of insurer to the civil action, in order to find more simple and more efficient solutions
Duparc, Caroline. "Du rôle respectif du juge et des parties dans le procès pénal." Poitiers, 2002. http://www.theses.fr/2002POIT3017.
Full textNober, Ophélie. "L'encadrement du raisonnement du juge des faits au sein du procès pénal." Master's thesis, Université Laval, 2017. http://hdl.handle.net/20.500.11794/27461.
Full textPetitgirard, Thibaut. "Réflexions sur l'hypothèse d'un droit processuel pénal international." Montpellier 1, 2005. http://www.theses.fr/2005MON10053.
Full textSaas, Claire. "L'ajournement du prononcé de la peine : césure et recomposition du procès pénal." Paris 1, 2002. https://buadistant.univ-angers.fr/login?url=https://bibliotheque.lefebvre-dalloz.fr/secure/isbn/9782247098934.
Full textSleiman, Hissni. "La victime dans le procès pénal : étude comparative des droits français et libanais." Poitiers, 2009. http://www.theses.fr/2009POIT3002.
Full textThe victims'protection against crime, under the French and Libanese law, at the legislative level, shows itself in a strong interest and solidarity towards those who suffer from a serious private injury coming from acts punishable by the criminal law. By strengthening this protection, French lawmakers as well as Lebanese, give, of course, a legal status in order to recognize the victim as an action making up for the offense, and to allow it to bring this action. Before the competent criminal courts, so as to judge the author of the offense and become a party in the criminal proceedess. This status allows the victim to enjoy some rights. The right to bring a civil action and start up the public action so as to join its civil action to the last one, the result to be a party in the proceedings which makes it eligible for some criminal prerogatives including active participation in the proceedings (as for example, the rights to attend some instructions, the right to attend the hearing and the right to appeal against the decision detrimental to his civil interests…In this way, the victim may influence the decision towards the criminal action, while going on the civil action before the criminal court. In these countries, if the offender is sentenced to crime, the criminal court was unable to conclude its consideration of civil action, remains competent to appreciate it, whatever its complexity
Dikongue, Jean-Baptiste. "Les privations de la liberté individuelle au cours du procès pénal en droit camerounais." Poitiers, 2000. http://www.theses.fr/2000POIT3022.
Full textBenillouche, Mikaël. "Le secret dans la phase préliminaire du procès pénal en France et en Angleterre." Paris 1, 2001. http://www.theses.fr/2001PA010297.
Full textRaynaud, de Lage Nicolas. "Le respect des droits de la défense dans la phase préliminaire du procès pénal." Toulouse 1, 1998. http://www.theses.fr/1998TOU10013.
Full textCompliance with the defence rights is the achievement of a slow evolutionary process. This process reflects the idea that man has for justice. Originally, reduced to a few actions, they were progressively integrated in the prosecution procedure and hold today an important role. This slow emergence comes from the difficulty to find the equilibrium between the respect of the individual rights and the trial effectiveness. From one side, the individual rights in front of the various judiciary and police authorities have to be preserved, on the other side, the power of these authorities have to be sufficiently wide in order to allow them to bring the elements that will solve the case. The defence right contribute to the quest for this equilibrium for two main reasons: they protect the defendant against the plaintiff charges and they limit the judiciary authorities’ intervention in a specified framework, therefore preserving him against the state "superpower". For these reasons, the defence rights must be at the top of the citizen rights. Key-words defence rights - prosecution - preliminary phase - presumption of innocence - procedure confidentiality - contraction principle-lawyer-accusation-judiciary control-identification control
Liddell, Éliane. "Le procès pénal aux États-Unis : démocratie, "due process of law" et justice ordinaire." Bordeaux 3, 2005. http://www.theses.fr/2005BOR30052.
Full textSince 2000 the United States has had the world's highest incarceration rate. American society has fostered a punitive culture. Violence and social unrest can no longer be considered an adequate explanation. Should the penal justice system be blamed ? This work examines the American criminal trial from a historical and cultural viewpoint, in order to isolate it from the surrounding morass of misrepresentations and to show its thoroughly democratic underpinnings. Here lies a curious paradox : at a time when the principles of the fair trial have been entrenched in penal law by supreme court jurisprudence over the period starting with the due process revolution, the American judicial system has never been prey to so much self-doubt and seemed so arbitrary, even oppressive. Although it is true that there has been some erosion in procedural due process since the early eighties, is this the principal cause of the deterioration ? We then aim to show that what is happening is rather the distortion of the workings of justice under the pressure of two joint forces : gradual national standardisation has given way to a vast retreat to much more local practices, and populist ultra-repressive policies have been unleashed with little opposition from constitutional safeguards. Supreme courts, instead of focusing on poorly-enforced and ever-more complicated procedural reforms, should first strive to put a stop to policies of mass imprisonment. Only then will the judicial institution recover its integrity
Vaissière, Aude. "L'expertise judiciaire en matière pénale : problématique et prospectives." Montpellier 1, 2005. http://www.theses.fr/2005MON10019.
Full textSchmandt, Claire-Annie. "La réouverture du procès pénal : contribution à l’étude de l’efficacité des procédures actuelles de révision et de réexamen en droit pénal français." Thesis, Lille 2, 2012. http://www.theses.fr/2012LIL20008.
Full textFinal sentencing in a criminal trial cannot in principle be questioned any more. Indeed the adjudged case has to be considered as definitely settled. The non bis in idem Latin saw and the res judicata tenet thus seem to preclude the re-opening of a criminal trial. And yet, lawgivers put in place two distinct legal processes that enable French citizens to challenge their sentencing: reviewing and re-hearing. The conditions for carrying out these processes and their own specifities make these proceedings quite exceptional. Through the presentation of new evidence for reviewing, and because re-hearing can be considered as of right, convicted people may in some cases get a new trial. Nevertheless only an ad hoc jurisdiction can decide upon a new hearing and the latter will be of a different kind depending on the new trial at hand. Moreover, the upshot of this new trial will make it possible either to maintain the sentencing notwithstanding new evidence being presented to a new court or to declare the defendant not guilty
Ataya, Ali. "La légalité des moyens de preuve dans le procès pénal en droit Français et Libanais." Thesis, Le Mans, 2013. http://www.theses.fr/2013LEMA2001.
Full textWhat happens if a criminal evidence has been obtained in violation of law orwith disregard for the procedural rules and the general principles? Is itpossible or forbidden to use such an evidence in court? This constitutes,indeed, a complicated and a tricky question that has already been widelydiscussed. The illegal evidence, which was subject to many debates, remainsstill questionable and not yet solved. The criminal or public action aims atclarifying the truth. Therefore, it is necessary to have an evidence to confirmthe commission of offence and its imputation to its perpetrator. The searchfor criminal evidence is subject to the principle of freedom of evidence. Yet,the freedom of evidence and the search for the criminal evidence is not anabsolute and unrestricted freedom, for it is vital to reconcile the society’sinterest in order to clear the offence and its perpetrator to reach the truth, inthe one hand, and to implement the right of the State to resort to punishment.Besides, it is prohibited to put to use the forms of evidence which representan infringement of freedom of individuals and their personal safety under thefreedom of proof. To that end, the theory of legality of criminal evidence sawthe light of the day since the clarification of the truth cannot happen throughthe use of an illegal means in a State of law.The principle of legality of criminal evidence is, basically, a principleneglected in the law. Moreover, there are some doubts as far as its realexistence in the legal system is concerned. This very study is aimed forasserting and confirming that the principle of legality of criminal evidenceexists, indeed, both in the Lebanese and French laws through the definitionof a specific and stable concept of the principle of legality of criminalevidence, the study of its relationship with the principle of loyalty of criminalevidence in addition to the emphasis on the various aspects characterizingthe principle of legality of evidence, the principle of loyalty of evidence andthe level of their interrelationship ; hence the need for distinguishing illegalevidence via the definition of a specific concept of illegal evidence in thecriminal evidence, by covering the whole violations of substantive rules,procedural rules as well as all forms of illegal evidence. After the definition ofthe principle of legality of criminal evidence and the concept of illegalevidence, we move on, in this study, to the search for the implementation orthe practical application of the principle of legality of criminal evidence inLebanon and France. Based on this principle, we have tried to bring a strictcontribution to the confirmation that the principle of legality of criminalevidence exists indeed, besides, we have proved its legal value in theLebanese and French laws. Afterwards, we have examined the destiny ofthis illegal evidence and the assessment of systems of invalidity adopted inLebanon and France, the level of their efficiency and the effectiveimplementation of the principle of legality of evidence so as to answer themain issue of this study, otherwise said the principle of legality of criminalevidence meets a vital need that requires a legislative support in Lebanonand France in a bid to devote the effective implementation of this principle.The legislative recognition of the principle of legality of criminal evidence withan innovative procedural sanction is the only means for convincing thestance of jurisprudence, which strives for weakening the principle of criminalevidence and for marginalizing it. Thus, there is an urgent and vital need forinnovating a new technique and legal tools likely to exclude illegal evidence
Hussien, Khaled. "L'équilibre entre les partis au procès pénal : théorie et pratique appliquée dans la phase préparatoire." Lyon 3, 2001. http://www.theses.fr/2001LYO33039.
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