Fiches Belges

Under French law, the summoning is a judicial document notifying the recipient that he or she has to appear before a tribunal. The rules above are applicable to the expert, the witness, the plaintiff and the prosecuted person : Pursuant to Article 5 of the MLA Convention of 29 May 2000, documents are either served by post directly to the interested party (in which case they must be translated into a language that the addressee understands) or sent to the French Ministry of Justice or the competent public prosecutor together with the request. If the request is not sent by post directly to the interested party, the executing authority is the competent public prosecutor.

• Title III of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and its additional protocols (in particular Articles 15 and 16 of the Second additional Protocol). • Article 5 of the MLA Convention of 29 May 2000.

• Article 16 of the Second additional Protocol to the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 : direct transmission by post. • MLA Convention of 29 May 2000 article 5 paragraph 1 : direct transmission by post is the rule. Under paragraph 2 of this article, procedural documents may only be sent via the competent authorities of the requested Member State if: a) the address of the person for whom the document is destined is unknown or uncertain, b) the relevant procedural law of the requesting Member State requires proof of service of the document on the addressee, other than proof that can be obtained by post, c) it has not been possible to serve the document by post, d) the requesting Member State has justified reasons for considering that dispatch by post will be ineffective or is inappropriate. Apart from in the case of paragraph 1 of article 5, it will therefore be the judicial authority that has territorial jurisdiction which receives the request, namely the public prosecutor.

• Convention of 29 May 2000 : translation is not required unless "there is reason to believe that the addressee does not understand the language in which the document has been drawn up". In this last case "the document, or at least the important passages thereof, must be translated into (one of) the language(s) of the Member State in the territory of which the addressee is staying" (paragraph 3 of article 5 of the Convention). In addition, if the authority by which the procedural document was issued knows that the addressee understands only some other language, the document, or at least the important passages thereof, must be translated into that other language. • European Convention of 20 April 1959 : translation in French is not required. Article 15 of the Second additional Protocol : if the issuing authority knows, or has a reason to believe, that the addressee knows only one other language, the documents, or at least the most important passages thereof, must be accompanied by a translation into that other language.

There is no deadline for the execution of requests for assistance in French criminal law. However, it is possible, in the request, to ask for a deadline to be observed ; such a deadline will, however, only be regarded as a general guide. For summoning of suspects/accused persons : please see below as regards the deadline of 30 days before the date fixed for the appearance in court and within which the request must be transmitted to the requested authority.

Regardless of the legal instrument on which the request is based, the requesting authority can ask for particular procedural rules to be followed, in accordance with article 694-3 of the Code of Criminal Procedure, providing that such rules must not reduce or impair “the rights of the parties or the procedural guarantees provided by the present Code”. The request can be refused if it is likely to harm public order or the essential interests of the Nation, as provided by article 694-4 of the Code of Criminal Procedure. • Under article 5 of the Convention of 29 May 2000, "All procedural documents shall be accompanied by a report stating that the addressee may obtain information from the authority by which the document was issued or from other authorities in that Member State regarding his or her rights and obligations concerning the document." The same provisions are provided by article 16 of the Second Additional Protocol to the Convention of 20 April 1959. • Immunity of witnesses and experts : Under article 8 of the Convention of 20 April 1959, if the witness or the expert does not comply with the summons, he or she shall not be submitted, even if the summons contains injunctions, to any sanction or coercive measure, unless he or she subsequently goes voluntarily to the issuing Party and is again regularly summoned. If the witness or the expert does not comply with the summons, a request for a video conference or hearing may be considered. • Principle of specialty : The witness or expert who appears before foreign authorities following a summons or the person summoned to appear before the judicial authorities of the requesting party in order to be questioned about facts for which he is the subject of proceedings, can neither be prosecuted there, nor detained, nor subjected to any other restriction of his/her individual liberty for facts or convictions which occurred before he/she left the territory of the requested party (and which are not included in the summons (prosecuted person)) - paragraphs 1 and 2 of article 12 of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. Paragraph 3 of this article provides an exception to this immunity when the witness, expert, prosecuted person having had the opportunity to leave the territory of the requesting State for 15 consecutive days, after his or her presence was no longer required by the judicial authorities, nevertheless remained in that territory or returned to it after having left it. This is also the case in relation to requests for summonses carried out on the basis of the 2000 Convention of which paragraph 5 of article 5 refers explicitly to the immunity provided under the European Convention on Mutual Assistance. Subject to the discretion of the Court de Cassation, this principle must also apply to summonses for the purpose of indictment (notifying persons of charges against them). • Deadline to send summonses to appear in court under the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and its protocols, and in accordance with the declaration made by France on 23 May 1967 : at least 30 days before the date fixed for the appearance in court. • The serving of the procedural document sent by the requesting party can be carried out by simple transmission of the writ or record to the person to be served (paragraph 1 of article 7 of the Convention). "If the requesting party expressly so requests, service shall be effected by the requested Party in the manner provided for the service of analogous documents under its own law or in a special manner consistent with such law." (paragraph 1 of article 7). Furthermore, "proof of service shall be given by means of a receipt dated and signed by the person served or by means of a declaration made by the requested Party that service has been effected and stating the form and date of such service. One or other of these documents shall be sent immediately to the requesting Party. The requested Party shall, if the requesting Party so requests, state whether service has been effected in accordance with the law of the requested Party. If service cannot be effected, the reasons shall be communicated immediately by the requested Party to the requesting Party. (paragraph 2 of article 7, mentioned above).