The loyalty of the evidence byEmeric LorentzTuesday 14 September 2010, at 04: 47

The loyalty of the evidence

byEmeric LorentzTuesday 14 September 2010, at 04: 47

The loyalty of the evidence



The loyalty of the evidence



The evidence in the civil trial

1. The evidence in the civil trial

2. In social law

2. The evidence in the criminal trial

1 Disloyalty and private parties

2 Disloyalty and public authorities

3. Summary of presentation

The requirement ofloyaltyis well known and substantial law and is based in article 1134, paragraph 3 of

civil code with that agreements must be performed in good faith.Applied to the right of the evidence, this

duty takes all its dimension, because indeed, theloyaltyradiates all the litigation, criminal law the right of

divorce. The civil trial and the criminal trial, are here before a problem of evidence. (I put aside the trial here)

(administrative, which does not obey to the same requirements and the Foundation is different.)

The principle ofloyaltyis now one of the fundamental values of the trial, including through a

requirements in article 6 of the European Convention for the protection of freedoms and human rights

fundamental "right to a fair trial." This attachment was established in the jurisprudence, giving to the

principle ofloyaltyexceptional value in the hierarchy of standards then that respect for the rights of the

defence, the right to a fair trial is a general principle of law which it has been recognized constitutional value.

The development of new technologies inevitably leads to new ways ofevidence, the

dematerialization of matches, and leads to new questions.

The question can be asked is whether what are the means ofevidencelegally eligible, what

are the prohibited means? The use of illegal methods to obtain evidence is expressly prohibited

in the civil trial and the criminal trial. Nevertheless, with regard to the principle of the loyalty of the evidence, his

contours emerge gradually over jurisprudence to sanction fraudulent attitude of the parties in

material civil (I), and control the work of the investigators in criminal matters (II).





















































-Equality of arms

byEmeric LorentzTuesday 14 September 2010, at 04: 45

Equality of arms









The principle of equality of arms as a component of the fair trial

1.

An implicit and autonomous principle



2 Criteria of assessment



1. Equality of arms in the case law: the scope of the principle



1. The principle in international courts



2. The application of the principle by French case law



(3) The principle in the trial without procedure: amicable settlement and arbitration summary of

the charge









4. Article 6 1 of the CESDH does not give a clear definition of the principle. He defines as "any".

"nobody has the right that his case be heard fairly …through a tribunal". However, the

ECHR deducted from it the existence of an unwritten principle: the principle ofequalityofweapons

which is to ensure a balance between the defence and the prosecution in the criminal trial and the parties

in the civil trial. The European Commission for the rights of man, in his report of 1958

in the case of Szwabowicz c / Sweden, has specified that any party to an action must have an opportunity

reasonable to present his case to the Court under conditions that do not disadvantage

significantly from the other side. 10 Years later, the Commission explained that

the requirement of theequalityofweaponsinvolves an obligation to provide to each party a possibility

reasonable to present his case, including his evidence under conditions that do not place

at a net disadvantage to his opponent (case Stuppat c / FRG).

The autonomy of the principle has been declared by the ECHR in the case of Delcourt. According to the Court, this principle

an aspect of the broader concept of fair trial. Yet the first case in

which the Court explicitly enshrined this principle was the Bonisch case.









































The right to a fair trial

byEmeric LorentzTuesday 14 September 2010, at 04: 42

The right to a fair trial

.









Access to justice, consubstantial concept to the principle of rule of law

1. The right to review of his case: access to justice

2. The organic guarantees of the right to a fair trial

2. The functional guarantees relating to the proceedings

1. The right to a balanced trial

2. The right to effective justice

Summary of the presentation Thetrialis so violent that is the confrontation between the parties, the acceptance of a language, of

symbols and values; acceptance to solve problems by respecting the rights of all: it is

why the C HRE spent thelawto thefair trial. The concept of right to a fair trial, affirmed by s. 6

1 C HRE tends to be more frequently invoked in support of the appeal both to the ECHR that before the

national courts. This law seemed to have become the centerpiece of "the instrument of a European public order"

the matter to thelawprocedural [ECHR 23 March 1995]; [Loizidiou]: C HRE has, it seems, the advent of a

universal model oftrial. The concept of fairness which is here invoked to establish some guarantees relating to the trial















is not a subjective and intuitive equity which is implemented in concreto for more flexible, adapt or even exclude the

rule oflaw: the application of this fairness is prohibited in principle to the judge but it can be made use by the

amicable composers, the judges of Britain and the judge as an interpreter of the contract (art.1135 c.civ)…The

lawto thefair trialmakes reference to objective fairness to the existence of and compliance with

guarantees fundamental good justice: this is expressed primarily by a desire to organize atrial

balanced and fair that offers any guarantee of regularity. The definition of standards of fair trial gives rise to a

constant refinement on the part of European case law as national. The right to a fair trial is

translated in the broad sense by the guarantee of access to justice (I) and in the narrow sense by guarantees relating

strictly to procedure (II). Fairness within the meaning of s. 6 1 concerns first the and in a trial

second time the instance.







































Right to obtain criminal parts

byEmeric LorentzFriday 10 September 2010, at 05: 56









Right to obtain criminal parts

Copy of pénalesFrance parts: issuance of the copies the Criminal Branch circulars of

judicial services signalling of the circular of 1 July to 30 September 2001 - August 3, 2001 - summary: I.-.

CONTENT OF ORDER 1. The extension of the principle of the issuance of the first free copies to counsel and to the

Parties not represented by counsel 2. Extension of the case for the issue of a copy to the parties without the permission

prior to the Prosecutor's Office II. -SCOPE III. -TERMS AND CONDITIONS FOR ISSUANCE BY THE REGISTRY

1 Result of the extension of the principle of free 1.1. Request made by a lawyer 1.2. Request made by

a party itself 1.3. Monitoring of requests for issuance of copy 1.4. Statement affixed to the copies 2.

Consequence of the extension of the cases in which the agreement of the Prosecutor's Office is no longer necessary IV. -1 MEANS. The

human means 2. Annex facilities: follow-up and summary tables of rules sheet to the

issuance and to free the copies I have the honour to draw your attention to the publication in the Official Journal of the 1st

August 2001 Decree No. 2001-689 of 31 July 2001 amending sections r. 155 and r. 165 of the code of criminal procedure

and on rules for issuing copies of criminal procedure, whose provisions are applicable to August 3, 2001.

Under the memorandum of understanding on December 18, 2000 concluded with the professional organizations of lawyers.

the main purpose of this order is to extend the principle of the criminal copies free of charge provided for in the second

paragraph of section R.166 of the code of criminal procedure, which was previously the lawyers or

designated in respect of legal aid. This Decree extends by also cases in which, in application of

provisions of article r. 155 of the code of criminal procedure, a copy of a procedural document may be issued to a

party without the prior authorization of the Prosecutor's Office. The content of the order (I), including the scope must be specified

(II), thus alters the conditions and practical procedures for the issuance of copies by the registry (III), which requires

the human and material means additional (IV). I. - CONTENT OF ORDER 1. The extension of the principle of free

the issuance of the first copy to lawyers and the parties not represented by counsel the second paragraph of

section r. 165 of the code of criminal procedure was amended to provide for free the first copy of procedure

criminal sought by counsel for a party, either by the party itself if it is not represented by a

lawyer. From the previous regime, free is therefore more related to the commission office of counsel or to its

designation in respect of legal aid; In addition, free is extended to the criminal copies requested

by the party itself when it is not represented by a lawyer and even though this part does not benefit from assistance

jurisdictional. Pricing to three francs per page under the first paragraph not amended article r. 165 of the code

criminal procedure however remains applicable to copies requested by third parties or copies directly

requested by a party represented by counsel. This pricing is also applicable to copies

additional requested by the parties beyond the first copy issued free of charge (several applications)

successive, if they relate to distinct parts of the proceedings, including during the course of a

information, but will lead to the issuance of free copies). It should be noted that only the part which

is legally represented by a lawyer and not that which is merely assisted by a counsel is not entitled to the

issuance of a free copy, free of charge then logically reserved to counsel representing. In which

regarding the person prosecuted, the representation is possible for the accused, pursuant to the provisions of

article 411 of the code of criminal procedure (as they have been extended by the Court of cassation in its judgments of 2)

March and 16 May 2001), but it does not seem possible for the person under examination (the latter which may not all)

ways not directly obtain a copy of the procedural documents, because of the provisions of article 114 of the code





















(criminal procedure, see below). However, a civil party can always be represented. Of course, the

new rules laid down by article R.165 are broad and also apply to requests for copies

made by counsel for the parties in an information pursuant to the provisions of the fourth paragraph of

article 114 (the indication given by this paragraph, that takes place "at their expense" is in this regard without)

impact, and it is now that additional copies requested by a lawyer, which remain

(message). 2 Extension of the case for the issue of a copy to the parties without the prior authorization of the Prosecutor's Office the

provisions of article R.155 - the first paragraph has also been rewritten, essentially by coordination 2

with the principle of free section r. 165 - have been modified to extend the right of the parties to the

issuance of the copies of criminal proceedings. Previously, under the terms of article 1 r. 155, only one was of

right - without prior consent of the Attorney of the Republic or the Attorney General - the issuing of copies of

complaints, denunciations, and court decisions. Article 2 provided that all other parts of the

proceedings were issued copy only after the agreement of the Crown. 2 ° Of this section has been completed a

phrase which now States that the authorization of the Attorney of the Republic or the Attorney General is not required

for the issuance of a copy of a piece of procedure requested by a party when proceedings were

incurred or that application is made of articles 41-1-41-3 of the code of criminal procedure and the copy is

required for the exercise of the rights of the defence or of the rights of the civil party. Are thus dedicated to both the

practice of systematically grant lawyers seeking the issuance of a copy of the procedure

to prepare for a hearing and the case law of the Criminal Chamber of the Court of cassation (Crim. 12 June 1996,)

(B.C. No. 248) considering that it was the result of article 6, paragraph 3, of the European Convention of backup of

rights of man and fundamental freedoms that the accused or the accused who was not assisted by counsel was the

right directly from a copy of the procedure without that the refusal of the Crown can be opposite.

The solution adopted by the Criminal Chamber, which related only to the person prosecuted, however, was also

scope to the other party as well as to the parties subject to an alternative procedure for the prosecution (the term of)

"party" used in article r. 155 - as in the rest by the second paragraph of article r. 165 - should therefore not be

understood as meaning only the accused against that public action was set in motion or the victim

which incorporated civil, but to also mean the author of the facts to which a measure is proposed of

Articles 41-1-41-3 or the victim who is not yet incorporated civil, but that would have the legal possibility of the

(to do). Out of these assumptions, which cover however in practice the most common situations, the issuance of

copies of procedural documents other than those referred to in article r. 155 under the regime remains 1 of

the authorization. It for example in the case of an investigation which is still in progress. It is in the

an inquiry classified without information finally ended by a non-suit or a procedure

leading to a final judgment, because in such cases the request for copies can no longer be justified by the exercise

rights of defence or the rights of the civilian party (he would however differently if the copies are requested)

for the exercise of the rights of a party in a proceeding constituting an extension of the criminal procedure:

Thus, in the case of an application for damages following a nonsuit, pursuant to sections 91 and D.

32 of the code of criminal procedure, or in the case of the procedure for relief of a provisional detention, by virtue

(including provisions of article r. 29 of the code). Finally, it should be noted that, as stated

now the first paragraph of this article, article r. 155 is not applicable in the cases provided by article 114 of

Code of criminal procedure dealing with the issue of copies of parts of the information procedure

Preparatory. Article 114 (as specified in articles R.. 15-42 and following with regard to persons placed in detention)

(provisional) in fact establishes a special regime, both in regard to the delivery copies to counsel that, with

concerning the communication of copies to the parties themselves. In particular, neither the person implementation review nor the

civil party cannot directly copy of the procedural documents: only their lawyer is indeed authorized to

to restore a reproduction, in the absence of opposition by the investigating judge. II. - scope of APPLICATION the

Decree of 31 July 2001 applies in all criminal courts of first and second degree of metropolis

and overseas as well as to the Criminal Chamber of the Court of cassation. Its provisions have been extended in

New Caledonia, French Polynesia and in the Iles Wallis and Futuna. The amendments to articles R.

155 and r. 165 were thus made applicable in New Caledonia to articles 155 RNC and RNC 165 and in Polynesia

French articles RP 155 and RP 165. The amendments to section r. 155 were made applicable in

the Iles Wallis and Futuna in article RWF 155, in which a new section RWF 165 has been extended. Finally, it should be

Note that new editors of r. 155 and r. 165 articles are of right applicable to Mayotte, the fact of the

Act of 11 July 2001 on Mayotte, whose article 3 a deleted, including criminal procedure and

criminal law, the principle of legislative and regulatory specialty that previously governed this territory. The principle of the

the first copy free of charge applies to all the requests currently being processed by the services of

file including the applications filed before the date of entry into force of this text not yet processed to this

date by the registry. As a result, the stage manager render, lawyers and the parties not represented by counsel,

the moneys received for the payment of copies and not yet laid in accounting when they concern a

first application of copies. III. - TERMS AND CONDITIONS FOR ISSUANCE BY THE REGISTRY 1. Consequence of

















the extension of the principle of free 1.1. Request made by a lawyer now all of the lawyers representing the

Parties in criminal proceedings can benefit from a first free copy. This rule means that, for a

Counsel, a single copy of each piece is free; additional copies are priced at the rate

3 francs per page in application of article r. 165 of the code of criminal procedure. I would remind you that it has been decided,

in agreement with the professional organizations of lawyers, to limit the free issuance of the copies

criminal in a copy by appointed lawyer and party to the proceeding. In the event of a plurality of lawyers

(designation of several Councils by party or succession of lawyers in the same folder), it is up to

They ensure the transmission of the free copies already obtained in a folder. 1.2. Request by a

party itself the parties also benefit from a first free copy, provided that they are not

represented by counsel in criminal proceedings which is the object of the request for copies. It is however

not in the registry to issue copies to check if the applicant is not represented for the procedure

criminal considered, as this information does not appear in the record. Part (even assisted by a lawyer) that

request a copy of a procedure and that it is not mentioned on the record (or letter) that it is

represented by a lawyer must be issued a free copy, unless this copy was already free of charge

restoration to his lawyer (and if the same parts are then requested by counsel, of the copies to the latter)

(will be chargeable). 1.3. Monitoring of requests for issuance of copy to ensure that one copy by file is

issued free of charge to a lawyer or a party not represented by counsel, the registry shall follow up of the

issuance of free copies. To do this, a follow-up record, with a model in the annex, may be

usefully attached to the criminal record and informed by the registry, upon the issuance of any parts of the record copy.

Moreover, heads of jurisdiction and file leaders will ensure, in close consultation with the bar, put

in place a rational organization, to prioritize requests for lawyers according to the dates

of trial scheduling of cases. 1.4. Reference on copies should finally be that, if issue

a piece to a lawyer, that was usually affixed by buffer "reproduction prohibited" references should be

either deleted, or supplemented by the words: "subject to the exercise of the rights of the defence". Nothing prohibits in

effect from counsel to reproduce or to submit these copies of parts to its client, that he might also have

obtain directly. Furthermore, if, in the information, the provisions of article 114 of the code of procedure

criminal allow the investigating judge to oppose what counsel give a copy of exhibit-client, this

opposition presents an exceptional character. 2 Result of the extension of the cases in which the agreement of the Prosecutor's Office

is not necessary the registry services responsible for issuing copies are more required to verify that this

issuance has been authorized by the Prosecutor's Office, therefore that it concerns a party or his lawyer and it appears that it is

located in the cases provided for by the 1 article r. 155 (application of a complaint, information or a decision)

(judicial), or in the case referred by the second sentence of article 2 (alternative procedure prosecution in)

course or instituted prosecutions and copy requested for the exercise of the rights of the defence or of the rights of the party

(civil). Is that in the event of difficulties on the conditions of application of the 2 appropriate return previously

the Prosecutor's Office. IV. - 1 WAYS. Human resources to improve the conditions for issuance of copies by the

registry services, appropriate, as far as possible, to ensure, in particular in the very courts

important to the specialization of the officers of the functions of reprography and assign these functions in priority

technical services officers qualified and trained in new techniques of scanning and scanning.

A regulatory device for technical services officers exercising functions of Office to be

posted in the body of officers and administrative assistants is being developed. This device is provided on a

period of three years. Jobs released technical services officers may be usefully redeployed

for the benefit of the high courts and will strengthen existing services. 2. The material means

Studies and experiments are currently conducted on the use of methods and materials more

high-performance, such as the scanning of documents and the constitution of CD-Rom; These new methods will be to

medium term, put at the disposal of the most important courts. In the immediate future, to enable you to

quickly implement the new regulatory system, the courts which expressed the need, in response

in my note of 29 June 2001, will be assigned, for duly justified requests, additional appropriations to the

for purposes of acquiring adequate equipment. These credits will be delegated in the coming days. * Please

bring this information to the attention of the heads of jurisdiction and registry of your spring leaders and make me

known as dual stamp of Directorate of judicial services and the Directorate of Criminal Affairs and

Thanksgiving, the difficulties encountered in the implementation of these instructions. For the Director of Criminal Affairs and

graces, by delegation: Deputy Director of the criminal law and international, J. BC. Carpentier Director of

judicial services, a. Gariazzo Note: © Ministry of justice - December