The aim of this ordinance is to adjust the rules of criminal procedure to deal with the Covid-19 epidemic and to adapt the public service of justice to this exceptional health crisis.
Here is a brief reminder of the contributions of this ordinance (1.) as well as the practical difficulties linked to its implementation (2.).
1. The contributions of this ordinance
Needless to say, the legislator had introduced its Criminal Procedure Simplification Act No. 2019-222 of 23 March 2019, the aim of which was to enhance the effectiveness of criminal procedure at all stages of the proceedings, from investigation to trial and the enforcement of sentences. The act also included provisions on improving the fight against terrorism, organized crime and international mutual assistance.
Order No. 2020-303 of 25 March 2020 is an extension of the Criminal Procedure Simplification Act of 23 March 2019, for the following reasons.
Firstly, the act generalises audiovisual telecommunications "for the purposes of the proper administration of justice," by providing for the prior consent of the person concerned by this measure in certain cases.
In the same vein, Ordinance No. 2020-303 generalizes videoconferencing, this time without it being necessary to obtain the agreement of the parties: "recourse may be had to audiovisual telecommunication before all criminal courts, other than criminal courts, without it being necessary to obtain the agreement of the parties."
In short, Order No. 2020-303 of 25 March 2020 does the following:
- It relaxes the conditions for bringing cases before the courts and lightens their operation by allowing more dematerialized hearings and by extending the single-judge panels.
- It suspends the limitation periods for public action and the execution of sentences as of 12 March 2020 (which may come as a surprise since the government had not yet decided on confinement, but agrees with the opinion of the Council of State, which recommended an earlier date than 14 March 2020) until 24 June 2020 (to echo 24 March 2020, the date on which the order was drafted).
- It doubles the time limits for appeals "without being able to be less than ten days" and provides for a formal relaxation to lodge an appeal (in principle of 10 days), to lodge an appeal (in principle of five days) or to file applications, conclusions or briefs before the criminal courts by allowing these acts to be carried out by LRAR or by an email to the address transmitted by the court of first instance or appeal.
- It relaxes the rules of criminal procedure applicable to persons in police custody who are provisionally detained or under house arrest. It allows a lawyer, with their agreement or at their request, to remotely assist a person in custody by means of telecommunication. It extends the maximum time limits for remand in custody and house arrest during the investigation and for the hearing. It extends the time limits for processing requests for the release of persons held in pre-trial detention.
- Finally, the order makes the conditions for the end of the sentence more flexible, in particular by providing for two-month sentence reductions linked to exceptional circumstances.
It should be kept in mind that these adjustments are applicable until the expiry of a period of one month from the date of cessation of the declared state of health emergency, i.e., until 24 June 2020.
2. Practical difficulties of the Order
The spirit of the legislator through this ordinance was to allow "the continuity of the activity of the criminal courts essential to the maintenance of public order" (Article 1 of the ordinance).
In this context, the limitation periods were adjusted retroactively, while the other periods suffered a different fate.
The order expressly states that "the limitation periods for public action and the limitation period for sentencing shall be suspended as from 12 March 2020 until the end of the period provided for in Article 2 (i.e., the expiry of a period of one month from the date of cessation of the state of public health emergency declared under the conditions of Article 4 of the Law of 23 March 2020)."
- What about a prescription legally acquired between 12 March and 26 March 2020?
The circular (CRIM-2020-12/H2) of 26 March 2020 specifies that the suspension "applies retroactively from 12 March 2020, for prescriptions that were not already acquired on that date."
It would therefore appear that prescriptions legally acquired before 12 March, but also between 12 March and 26 March 2020, are not suspended.
- What about the time limits for appeals in criminal proceedings between 12 March 2020 and 26 March 2020?
As mentioned above, the ordinance provides for a doubling of the time limits for appeal (appeal or appeal).
However, the order is totally silent on the retroactive nature of the doubling of the deadlines. One would think that this doubling is only applicable to the appeal deadlines still running on 26 March 2020.
We can indeed wonder about the possibility offered to a person who was convicted by the Criminal Court on 10 March to appeal within 10 days when it has been materially difficult for several days to lodge any appeal.
The litigant can nevertheless be reassured, since an appeal or appeal that could not have been lodged within the legal time limit can still be declared admissible if the applicant can prove that circumstances made it absolutely impossible for them to exercise their appeal in due time (Crim, QPC, 17 June 2014, No. 13-87226).
Case law will most certainly take up this lack of precision with regard to the period from 12 March 2020 to 26 March 2020 and its consequences.