Article 706-73

OJ L 68, In force: This act has been changed.

He is the only person, together with those persons mentioned under article 57 and any persons upon whom he calls pursuant to article 60, to be allowed to examine the papers or documents electronic data before proceeding to seize them. However, he has the duty first to initiate any step appropriate to ensure the observance of professional secrecy and of the defendant's rights. Any article or document seized is immediately entered on an inventory and placed under official seals. However, if it is difficult to make such an inventory on the spot, they are put under temporary closed official seals until such time as an inventory can be taken and they can be placed under final official seals. This is done in the presence of the persons who have witnessed the search pursuant to the conditions set out by article The seizure of any electronic data necessary for the discovery of the truth is carried out by placing in the hands of justice, either the physical medium holding this data or a copy of the data made in the presence of those persons present at the seizure. If a copy is made, then on the orders of the district prosecutor, any electronic data the possession or use of which is illegal or dangerous to the safety of persons or property may be permanently erased from any physical medium that has not been placed in judicial safekeeping.

Article 706-73

This article is a reminder of the importance of adversarial proceedings and the rights of the defense, as expressed by the Criminal Division of the French Supreme Court in its ruling of June 7, crim. In the course of a preliminary investigation into drug trafficking, an individual was referred to a Magistrates' Court and then convicted on appeal of aggravated violence, drug offences, possession of goods dangerous to health without justification, repeat offences, refusal to comply and hit-and-run. It is true that during the search of a box made available to the accused, the investigators found large quantities of narcotics. The Examining Magistrate's Chamber dismissed the application for a declaration of nullity on the grounds that the search authorisation given by the Public Prosecutor "necessarily falls within the scope of the provisions of article of the Code of Procedure". It considered that the nullity raised was perfectly well founded, that the use of a search in the absence of the accused was irregular because it was not justified and, drawing the consequences of its position, annulled the conviction for drug trafficking and possession of dangerous goods, the sentences handed down in this respect and the customs fine. In its ruling, the Criminal Division began by pointing out that, while the provisions of article of the Code of Criminal Procedure do provide for a search to be carried out in the absence of the person concerned, this is first and foremost a derogation from the principle set out in article 57 of the Code, which states that:. If this is not possible, the judicial police officer will be obliged to invite the person to appoint a representative of his or her choice; failing this, the judicial police officer will choose two witnesses requested for this purpose by him or her, other than persons under his or her administrative authority". In , with Act no. However, the use of this article is limited solely to situations in which the transport of the person in question must be avoided because of the "serious risk" of disturbing the peace, escape or disappearance of evidence. In other words, reasons must be given for using this option, either by the magistrate authorising it or by the investigator requesting it, with a reference to the "circumstances likely to justify the use of these exceptional arrangements". In this case, the Cour de Cassation found that the public prosecutor had merely authorised the search in the absence of the individual on the sole grounds that the individual's behaviour could legitimately give rise to fears of escape. The Investigating Chamber merely noted that the reason put forward by the public prosecutor, i. This is where the problem lies for the Criminal Division, which ultimately considers that the decision is not factually reasoned, that the existence of a serious risk is not explained and that the use of this derogatory tool was not justified.

Where the person does not respond to this article 706-73, the provisions of the second paragraph of article are applicable. Otherwise, he orders the document and the official record to form part of the official file. The national analysis centre may proceed to open any seals.

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If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:. An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. An opinion is not objectionable just because it embraces an ultimate issue. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Article 706-73

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The interception decision is made in writing. Article 94 Searches are made in all the places where items or electronic data may be found which could be useful for the discovery of the truth. Refusal to respond to these demands without legitimate grounds is punished in accordance with the provisions of the fourth paragraph of article Where he considers that it is not necessary to seize the document, the liberty and custody judge orders its immediate return and the destruction of the official record recording the events and, where necessary, the cancellation of any reference to that document or its contents which appears in the official file of the case. The provisions of the previous paragraph do not apply where only one example of a particular type of suspect banknote or coin exists and it is needed for the discovery of the truth. On penalty of nullity, no transcription may be made of any correspondence with an advocate relating to the exercise of the defendant's rights. This transfer is recorded in an official report. The third party's observations may be heard by the investigating chamber, as well as those of the parties, but he may not ask for the case file to be put at his disposal. The district prosecutor may also refer the matter to the liberty and custody judge of the district court in the territorial jurisdiction where the search will take place, through the intermediary of the district prosecutor of that court. He informs the district prosecutor who is entitled to accompany him. Article Where necessary to carry out a rogatory commission, a judicial police officer may issue the demands provided for by the first paragraph of article

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On penalty of nullity, no transcription may be made of any correspondence with an advocate relating to the exercise of the defendant's rights. When these operations are completed, the report and the sealed objects are put into the hands of the clerk of the appropriate court. The agreement will be added to the proceedings by the investigators. No interception may be made on a telephone line connecting the chambers or domicile of a judge or prosecutor unless the president or the prosecutor general of the court with jurisdiction over the area in question is informed of this by the investigating judge. This official record mentions the date and time when the operation started and ended. Where the seizure involves forged euro bank notes or coins, the judicial police officer must send at least one example of each type of note or coin suspected of being false to the national laboratory authorised for this task, for analysis and identification,. The Council, acting by a qualified majority on a proposal from the Commission, shall make the other provisions of Articles 92, 93 and 94 of the Treaty applicable insofar as this proves necessary. This transfer is recorded in an official report. However, he has the duty to organise in advance all the appropriate measures to ensure the observance of professional secrecy and the defendant's rights. Article 59 Except where they are requested from within a building or in the exceptional cases provided for by law, searches and house visits may not be undertaken before 6 a. Article Where, during the course of the investigation, it proves impossible to carry out the restitution of movable property placed under judicial safekeeping, which no longer needs to be kept in order to establish the truth, either because the owner cannot be identified, or because the owner does not claim the item within two months from the time that the official notice was sent to his domicile, the investigating judge may, subject to the rights of third parties, order the destruction of the assets or their transfer to the State property agency with a view to their disposal.