The legal, judicial and political limits of the preliminary inquiry

The judicial police operation was conducted under preliminary investigation under the leadership of half a dozen prosecutors.

With his usual verve, the president of the IF, denounced a "huge operation of political police", saying in a press conference that he was going to request the cancellation of the search at the headquarters of his party.

The preliminary inquiry stems from the "unofficial" investigation of the beginning of the last century. A practice adopted by the police in the absence of texts to frame their work. This investigation obviously gave them no power, but since it did not exist, they took a lot of it.

This field experience was legalized in 1958, with the adoption of the Code of Criminal Procedure, which brought to an end the 1808 Code of Criminal Procedure. The preliminary inquiry is a "consent" inquiry, in other words, without any constraint. which makes it possible to verify the existence of a suspicion, so that the public prosecutor can prosecute or classify the file. It may be carried out at the initiative of an officer or a judicial police officer of article 20, or at the request of the public prosecutor. Which today is most often the case. The formula "the prosecutor's office opened a preliminary inquiry" was rarely used only a few decades ago.

The preliminary inquiry presents a second part, which this time is not based on suspicion, but on a concrete fact, a crime or a crime that was actually committed and found, when the period of flagrancy is over and when no investigating judge has been seized.

But in an increasingly secure world, things have evolved: "Traditionally presented in doctrine as a legal framework that does not allow the OPJ to resort to coercion, the preliminary inquiry has been profoundly reformed to the point of surrender in question this statement.

Police powers are therefore getting closer and closer to those granted to investigators in flagrante delicto. However, the search resisted this security inflation more or less. In fact, this is the only area where the person, the master of the house, as they say, must agree. And it is not an agreement in principle, but a written declaration of his hand: "Knowing that I can oppose the visit of my home, I expressly consent to you there make the searches and seizures that you will judge useful to the ongoing investigation. This search must also be authorized by the public prosecutor when it has for purpose the seizure of property whose confiscation is envisaged.

Too good to last. Law No. 2004-204 of 9 March 2004, which aimed to set a new framework for the fight against organized crime and crime, began a shift by giving the judge of liberty and detention (JLD) the possibility of to authorize searches without the consent of the person concerned, where the person concerned is suspected of an offense punishable by at least five years' imprisonment. The following year, a new law (No. 2005-1549 of 12 December 2005) on the treatment of recidivism extended this latitude to criminal offenses. In both cases, this authorization must be based on facts and law justifying the necessity of the transaction (Article 76 (4)).

And tomorrow, if the draft law for the reform of justice is adopted (which is no doubt), this possibility will also concern offenses punishable by three years imprisonment. In other words, almost all offenses.

However, in return, as a result, in order to comply with the recommendations of the Console in the absence of proceedings within six months, the person from whom the search took place may challenge the lawfulness before the JLD.

One can say that it is good to give more power to the floor, and the police, and gendarmes, or regret the distant time when his home was considered a "sacred" place. To each one his conception of the world in which he wants to live.

The purpose of the search is to discover objects, writings and clues that may support the suspicions that led to the opening of the preliminary inquiry. These must be immediately inventoried and placed under seal in order to avoid any subsequent contestation and guarantee the results of future expert reports if necessary. In the event of impossibility, they must be the subject of closed provisional seals, which will be opened and inventoried later in the presence of the persons who attended the search.

In the absence of the usual occupant of the premises (of the officer if it is a company), the investigators may call on his representative or two witnesses who will attend the search.

With regard to the search at the headquarters of the IF, there is an embarrassing question, could not at the same time attend the search of his home and that carried out at the headquarters of his party. And, later, when he knocks on the door (his fist closed), he is forbidden from entering it for reasons of public order. Which can sow doubt in the least conspiracy minds, with this question: could the digitized files of the IF have been copied?

Most media criticize the behavior, who criticizes most media. It's destructive for both of us. And yet, it is so sweet this Indian summer that never ends! The boss of the IF is, however, legitimate to be surprised at the importance of the system put in place. As a commando operation: a hundred policemen, accompanied by representatives of the prosecutor's office, who in the early morning raid his home, his relatives and on the premises of his party, not for a case of banditry, but because the Commission campaign accounts (CNCCFP) has reported to the prosecutor's office under Article 40 of the Code of Criminal Procedure on possible irregularities in the expenses for the 2017 presidential election. According to the newspaper, would give: "fraud and attempted fraud, breach of trust, violation of legislation on the financing of electoral campaigns and concealed work aggravated". These are the criminal qualifications retained by the public prosecutor of Paris, not by the prosecutor's office, even if he has seized the central office of fight against corruption and financial and fiscal offenses (OCLCIFF).

According to the Attorney General of Paris, who has stepped up to oppose the inflamed remarks of many elements that need to be verified before being entrusted to an investigating judge. To summarize the words of the high magistrate, the opening of a judicial investigation would have been "disproportionate".

No one can deny that an operation of this magnitude, carried out under a non-coercive legal framework, is unusual. And when it is targeting an opposition political party and its leader, it is ... say disturbing.

Of course, the restrictive rules laid down by the Constitution on parliamentarians (which apply to the preliminary inquiry) do not expressly prohibit searches, but, strictly speaking, arrests and restrictive or custodial measures. However, the very existence of this protection shows that our Constitution wanted to protect the representatives of the Nation from the risks of a remote judicial action. This simple fact would have deserved, in my opinion, the seizure of an independent judge, which, whether we like it or not, is not the case of prosecutors.

Like many, I suppose, I can’t help but think that this oversized operation is done by people of court, those who seek to please.
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