Fiches Belges

This measure consists of an examination carried out by a doctor who is a specialist in mental illness. The results of this examination may constitute grounds for non-accountabilty or diminished responsibility of the person concerned. In such a case, a person who, at the time the offence was committed, was suffering from a mental or a neuropsychological disorder which caused him or her to lose all judgement or control of his or her actions, is not criminally responsible. In addition, a person who, at the time the offence was committed, was suffering from a mental or a neuropsychological disorder which impaired his or her judgement or impeded the person's control of his or her actions remains punishable; however, the court will take this circumstance into account when deciding on the sentence and on the sentencing regime. Under French law a distinction is made between examination and expert assessment. The public prosecutor can order psychiatric medical examination in case of flagrante delicto (Art. 60 Criminal code of procedure) or preliminary investigation (Art. 77-1 Criminal code of procedure). As for the investigating judge, he may request a psychiatric expert assessment under article 81 and article 156 to 169-1 of the French criminal code of procedure. Despite this semantic distinction between expertise and examination in the criminal code of procedure, the French Court of Cassation ruled that article 77-1 gives the public prosecutor acting in a preliminary investigation the power to entrust any qualified person with technical or scientific missions of the same nature as those that can be entrusted to experts by the investigating judge under article 156.

• EU member states: Directive 2014/41/EU of 3 April 2014 on the European Investigation Order in criminal matters as transposed into the French Code of Criminal Procedure in Articles 694-15 to 694-50 replaces particularly the provisions of The European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (and its two additional Protocols) and the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (and its Protocol of 16 October 2001) except for Ireland and Denmark. • non-EU countries: The European Convention on Mutual Assistance in Criminal Matters of 20 April 1959.

• On the basis of the Directive on EIO of 3 April 2014 : The investigating judge is competent to recognize and execute the EIO in respect of acts which can only be ordered or executed during the judicial investigation or which can only be executed with the authorization of the liberty and custody judge. In other cases, the public prosecutor territorially competent will recognize and execute the EIO. • On the basis of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and its additional Protocols, requests for mutual legal assistance are addressed by the requesting State to the Office of International Mutual Legal Assistance in Criminal Matters of the French Ministry of Justice. Nevertheless, the competent judicial authority of the requesting State can address the request for mutual legal assistance directly to the competent judicial authority of the requested State (see above for the competent authority in France: public prosecutor or investigating judge that has territorial jurisdiction). NB: In accordance with the declaration made by France to the Second additional Protocol (2001) requests for legal mutual assistance related article 1 paragraph 3 of the Convention and requests for legal mutual assistance made by the competent authority of the requiting State that is not a judicial authority must be sent to the Ministry of Justice, Directorate of Criminal Affairs and Pardons.

• Directive 2014/41/EU of 3 April 2014 on the European Investigation Order: French. • European Convention on Mutual Assistance in Criminal Matters of 20 April 1959: A translation in French is not required (article 16) but it is nonetheless recommended that a translation be provided, in order to facilitate and expedite the execution of the request for assistance.

• Directive 2014/41/EU of 3 April 2014 on the European Investigation Order: The competent authority must execute it as soon as possible and at the latest within 90 days after the decision of recognition of the EIO. • European Convention on Mutual Assistance in Criminal Matters of 20 April 1959: The requested State executes the request for mutual legal assistance as soon as possible (Art. 1 Second additional Protocol to the Convention of 20 April 1959). There is no deadline for the execution of requests for assistance in French criminal law. However, it is possible, in the body of the request, to ask for a deadline to be observed; such a deadline will, however, only be regarded as a general guide.

The psychiatric medical expert will be designated by order of the investigating judge following an international request for mutual legal assistance to the prosecution within the framework of the cases referred to in article 706-47-1 of the Code of Criminal Procedure (offences of a sexual nature). The experts must perform their task in collaboration with the investigating judge or the acting magistrate; they must keep the magistrate informed of the progress of their operations and enable him or her to take any useful measures at any time. If the experts ask for clarification on an issue that is not within the scope of their expertise, the judge can authorise them to engage the services of specifically designated persons who are specially skilled in their field. Under article 706-48, minors victims of an offense mentioned at article 706-47 (offense of a sexuel nature) can be subjected to psychiatric medical expert assessment - it is not mandatory.