It happens that certain immediate appearances begin with the presentation of “conclusions of nullity” from the lawyer. Here, the defense requests the cancellation of the hearing and the release of its client in response to an over-eager prosecutor who had signed the paper ordering an immediate appearance before hearing the defendant and his lawyer.
It is a hearing which begins as usual. We verify the identity of the accused – here, Mr. E., 19 years old –, we explain what he is accused of – here, driving without a license, possession of a vehicle acquired through fraud, possession of a revolver – we ask to the one who waits in the box if he wishes to be judged now or to obtain time to prepare his defense and he is reminded that he has the right to make spontaneous statements, to answer questions or to remain silent – “in short, that means you you are not obliged to answer,” the judge translated.
When there is, it is now that the lawyer has the opportunity to present “conclusions of nullity”. In this case, Maître Frédéric Beaufils requests the cancellation of the immediate appearance report. If granted, this cancellation would put an end to this hearing before it had really started.
In a word, “the rights of the defense have been encroached upon,” summarizes the lawyer. His demonstration begins by recalling that according to article 393 of the Code of Criminal Procedure, a contradictory debate is necessary before the prosecutor can decide to use the immediate appearance procedure (rather than another type of procedure, an appearance on prior admission of guilt, for example). Supporting case law: “The decision on the direction of a criminal procedure cannot be made before a contradictory debate in the presence of the defendant's counsel, after the latter has been able to make statements” (17e correctional chamber of the TJ of Bobigny, July 12, 2023).
However, in the present case, the representative of the public prosecutor had already signed and affixed the symbol of Marianne on the report requesting recourse to immediate appearance before having heard from Mr. E. or his lawyer. “I do not know what effects my statements could have had but the case law is in the direction of a cancellation of this irregular referral”, continues the lawyer who requests the release of his client.
He ends by sending a word of thanks to the prosecutor, who transmitted the case law on which she intended to rely to respond to the lawyer's conclusions. “Except that this case law has nothing to do with it,” he assures. “After the lawyer's words, I am quite embarrassed to respond… I made a mistake in the judgment that I transmitted and I therefore did not provide the one on which I am basing it,” begins, sheepishly, the prosecutor.
The judgment that it did not transmit dates from March 12, 2024 and is not final since an appeal has been issued. However, this judgment of the court of appeal indicates that the magistrate's decision can change until the last moment, even when the document has already been signed. She suggests that the lawyer take a look. He does so and the room falls silent while he reads. “You will have to weigh what a final court judgment is worth compared to a non-final judgment,” he replies. The prosecutor has the floor once again, in order to respect the protocol: “The public prosecutor noted that the report had been signed before the adversarial debate but the rights of the defense themselves were respected,” assures -She.
After a break of more than 30 minutes to rule on the conformity of the immediate appearance report, the judges returned, announced its cancellation and invited the public prosecutor to take better action. “That doesn’t mean you’re even,” the judge reminds the defendant. Not enough to erase his smile. Before leaving the box and being released, he asks his court-appointed lawyer for his card.
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