Criminal Code > BOOK II THE CRIMINAL 3

CHAPTER III MEASURES APPLICABLE TO ADULTS IN SPECIAL CASES

Section I- Measures Applicable to Irresponsible Persons and Criminals with a Limited Responsibility

Article 129- Principle.

After ascertaining on the bases of normal enquiry and expert examination, (Art. 51) whether the criminal is irresponsible (Art. 48) or whether he is of a limited responsibility (Art. 49), the Court shall apply the following provisions having regard to the circumstances and requirements of the case.

Article 130- Confinement.

(1) If the criminal, by reason of his condition, is a threat to public safety or order, or if he proves to be dangerous to be persons living with him, the Court shall order his confinement in a suitable institution.

(2) If he is in need of treatment, he shall either be treated in the institution in which he is confined or be transferred to an appropriate institution in accordance with Article 131. Proper provision may be made for his safe custody.

Article 131- Treatment.

(1) Where a criminal is suffering from a mental disease or deficiency, deafness and dumbness, epilepsy, chronic alcoholism, narcotic and psychotropic substances, intoxication due to the abuse of narcotics or any other pathological deficiency and requires to be treated or placed in a hospital or asylum the Court shall order his treatment in a suitable institution or department of an institution.

(2) Where the Court is satisfied that the criminal is not dangerous and can be treated as an out-patient, it shall order accordingly.

The Court shall then order that the criminal be kept under proper supervision and control either by the medical expert in charge of the case or by some other competent authority. An order made under this Article may be revoked at any time where it is known that it is unreliable or cannot produce positive result.

Before revoking the order or taking other appropriate measures, the Court may require from the medical experts or other competent authority such report as it considers necessary.

Article 132- Duration of Confinement or Treatment.

(1) The competent administrative authority shall carry out the Court’s decision concerning treatment and confinement.

Treatment and confinement shall be of indefinite duration but the Court shall review its decision every two years.

As soon as, according to expert opinion, the reason for the measure has disappeared the administrative authority shall, after having referred the matter to the Court and upon its decision, put an end to the measure ordered.

(2) Although the cause due to which the measure was ordered is not fully eliminated, the Court may, at any time during the enforcement of the treatment or confinement, order the temporary suspension of such a measure in accordance with the administrative authority’s report where its propriety has been confirmed by expert opinion.

The Court shall release the criminal to the supervision of a selected protector for not less than one year and shall in addition impose such conditions as may be necessary (Art. 205).

(3) Any order made under this Article may at any time be revoked where public safety or the condition of the released person so requires.

If the probation period is successfully undergone, the release shall be final.

Article 133- Effect of Limited Responsibility upon Penalty.

(1) In the case of criminals of limited responsibility, subject to the determination of penalty under Article 49, the Court shall when necessary, after having suspended the sentence temporarily, order his confinement (Art. 130) or his treatment in a suitable institution (Art. 131).

(2) Upon termination of the measure ordered the Court shall, upon a report made by the management of the institution or the responsible protector, decide whether the enforcement of the penalty is still necessary and determine in accordance with the provision of Article 116 of this Code whether or not the period of confinement or treatment should be deducted from the sentence unserved.

The Court shall take into account the gravity of the crime committed, the antecedents and character of the criminal, the effect the internment or treatment had upon his condition and the likelihood of his permanenet recovery.

(3) No penalty shall be enforced where the Court considers it inexpedient so to do.

Section II- GENERAL MEASURES FOR PURPOSES OF PREVENTION AND PROTECTION

Article 134- Principle.

The general preventive and protective measures provided in this Chapter may be applied together with the principal penalty or after the principal penalty has been undergone when, in the opinion of the Court, the circumstances of the case justify.

All such measures must be specifically ordered by the Court on such conditions and in all such cases as it deems necessary, notwithstanding that no provision is made in the Special Part of this Code for their application.

Sub-section I- Measures of a Material Nature

Article 135- Guarantee of Good Conduct; Principle.

(1) When a convicted person indicates his intention to commit a further crime or when it is likely that he will commit a further crime as in a case of declared hostility or threat, the Court may require him to enter into a recognizance to be of good behaviour together with a surety or sureties.

(2) The recognizance shall be for a period of from one to five years.

The surety shall be in the form of a personal or monetary guarantee.

(3) The Court shall determine the duration of the recognizance and the value of the guarantee according to the nature and gravity of the threat and having regard to the personal and material circumstances of the criminal or his guarantors.

The recognizance of the guarantee shall be recorded in the judgment.

Article 136- Refusal of Recognizance or Guarantee.

(1) If the person by whom the commission of a crime is feared refuses to enter into the required recognizance or if, by ill-will or bad faith, he does not name a guarantor or deposit the required surety within the specified time, the Court shall order him to be detained until he complies.

(2) The Court shall at the same time determine the duration of such detention. Save in exceptional circumstances such as a renewal of the threats of the obvious persistence of the dangerous disposition or ill-will of the person concerned, the detention shall not exceed three months.

The Court may, on application for good reason, release the convicted person under supervision (Art. 148) or grant a further detention for a period of not more than three months, if safety so requires. The total period of detention may in no case exceed six months.

(3) When adequate sureties or guarantees are furnished the prisoner shall be set free.

Article 137- Legal Effect.

When the probation period specified in the recognizance has elapsed without any crime having been committed the guarantee shall be discharged, the guarantors released and the sums or sureties lodged returned to their owners. If a crime is committed during the probation period, the surety shall be forfeited to the State or the guarantor required to discharge his obligation, without prejudice to the ordinary penalties and measures to which the criminal is liable for his crime.

Article 138- Inability to Furnish a Guarantee.

If the person by whom the commission of a crime is feared is through no fault of his own, unable to furnish the surety or personal guarantee required, the Court shall order that he be set free and placed under supervision (Art. 148).

Article 139- Repetition of the Measure.

(1) The Court may order a person who has entered into a recognizance to enter into a fresh recognizance where circumstances particularly fresh threats by, or dangerous disposition of the criminal justify (Art. 135).

(2) However, where the said person has been previously detained for the maximum period of six months specified in Article 136(2) second paragraph, he may not be detained again if he refuses to enter into the fresh recognizance. If a further order is required it shall be an order of supervision (Art. 148).

Where the nature of the threat falls under the provision of Article 580 nothing shall exclude the prosecution of the doer under the said Article.

Article 140- Seizure of Dangerous Articles.

(1) The Court shall order the seizure of all articles having been used or likely to be used for the commission of a crime, or which have been obtained as the result of a crime, when they endanger public order, safety, health or decency.

It may order that the seized articles be either destroyed, rendered useless or handed over to a police or a criminological institute.

(2) Interests of innocent third parties shall be protected and weapons or instruments the possession of which is not forbidden by law shall be returned to their owner.

Article 141- Common Provision: General Preventive Application.

A person may, before prosecution or during trial, be required to enter into a recognizance to be of good behaviour where such person behaves or is likely to behave in a manner which threatens peace or security of the public or a member thereof.

An order for seizure of any dangerous article may where circumstances so justify by made on any person in accordance with Article 140 even in cases where such person cannot be charged or convicted.

Sub-section II- Measures Entailing Restrictions on Activities

Article 142- Suspension and Withdrawal of a License.

In the case of a grave or repeated crime committed by any physical or juridical person holding an official license entitling him/it to carry out any profession or activity the Court may, in addition to the penalty imposed, order the withdrawal of the license for a period of from one month to one year.

In cases of recidivism or of a particularly grave danger the license may be revoked for good.

Nothing in this Article shall affect the provisions of Article 123(c).

Article 143- Prohibition and Closing of an Undertaking.

In addition to the penalty imposed upon the criminal the Court may order that any undertaking or establishment whether commercial, industrial, cultural or political which was utilized to commit or further the commission of a crime shall cease to function and be closed where the crime committed is a danger to public security.

The Court may order the winding up of such an undertaking where the crime committed entails a penalty of rigorous imprisonment exceeding one year.

Article 144- Effect of Non-observance.

(1) Measures prescribing closing down, suspension or prohibition may be general or limited to a specified time, place or area as determined in the judgment.

They imply a prohibition of the continuance of the forbidden activity either by the convicted person or a third party by whatever name or management.

(2) Infringements of a prohibition under this Article shall be punished under Article 459.

Where an establishment or centre has been reopened in violation of a prohibition it shall be wound up and the assets disposed of according to law.

Sub-section III- Measures Entailing a Restriction on Personal Liberty

Article 145- Prohibition from Resorting to Certain Places.

(1) In addition to the penalty the Court may restrain the convicted person from having access to or remaining in certain places the resorting to which contributed to the commission of the crime or may expose the criminal to committing fresh crimes, in particular public-houses, inns, entertainment halls, markets and other public places.

(2) The Court shall specify in its judgment the extent and duration of the restraint which may be from three months to one year.

Article 146- Prohibition to Settle Down or Reside in a Place.

(1) Where it becomes necessary for purposes of protection as laid down in Article 145, a similar prohibition may be ordered in respect of settlement or residence in a town, village or a specified area.

(2) It shall be of temporary nature having regard to the gravity of the crime, the character of the criminal and the circumstances of the case. A temporary prohibition may be for a period of from one to ten years.

The Court shall give reasons for its decision and shall specify the territorial area to which the prohibition extends and its duration.

Article 147- Obligation to Reside in a Specified Place or Area.

(1) Where a criminal is likely to cause further disturbance or pursue a life of crime, the Court may order the criminal to reside in a specified place or area where the likelihood of his committing further crimes is lessened.

(2) The Court shall decide the place or locality where the criminal is to reside and its duration which shall not b less than one year and more than five years.

(3) An order shall not be made under this Article where an order under Article 135 will meet the circumstances of the case.

Article 148- Placing under Supervision.

(1) Where such a measure appears necessary the Court may order that a convicted person be placed under police supervision.

Except as otherwise expressly provided by law in particular under Article 138 such a measure shall be ordered only in respect of a criminal who is proved to be dangerous by the gravity or repetition on his criminal acts and who was sentenced to at least a term of simple imprisonment of one year.

(2) The Court shall prescribe the period of supervision which shall be from one to five years.

Such supervision must be effected so as not to hinder the person who is the subject thereof in the exercise or resumption of his normal activities and living and not to prevent reinstatement.

The person subjected to supervision may be ordered to report himself either at regular intervals or when summoned so to do.

(3) The Court may in an appropriate case order supervision by a protector (Art. 208), where such an order appears sufficient having regard to the circumstances of the case.

Article 149- Withdrawal of Official Papers.

Where special reasons, relating to supervision or safety require, the Court may in addition order the temporary retention or withdrawal of the official papers or passport of the convicted person.

The reasons for such a measure and its duration shall be stated in the judgment.

Article 150- Prohibition from Residing in the Territory; Expulsion.

(1) If the convicted person is an alien and proves to be undesirable or dangerous the Court may order expulsion from the territory of the State either temporarily or permanently.

This measure may always be ordered in respect to a convicted person who has been sentenced to a term of simple imprisonment of three years or more, or to an irresponsible or partially responsible criminal recognized by expert opinion as a danger to public order.

The duration of expulsion shall be specified in the judgment.

(2) The Court shall, prior to its decision, consult the competent public authority.

Nothing in Article shall affect the provisions of international conventions.

(3) The application of any other measure does not preclude expulsion.

Article 151- Enforcement.

(1) The enforcement of an order of expulsion shall be the duty of the competent public authority and shall be effected in accordance with the relevant administrative regulations.

(2) In the case of a sentence entailing loss of liberty the order of expulsion shall be carried out after the sentence has been served or remitted through pardon or amnesty.

(3) In the case of a criminal whose responsibility is limited and when circumstances so justify the penalty may be first enforced and expulsion substituted for the ordinary measures of safety (Art. 130) or treatment (Art. 131).

In the case of an irresponsible person expulsion may, if appropriate in the circumstances of the case, be substituted for the measures of confinement or treatment.

Article 152- Suspension of the Measures by way of Probation.

When a criminal has been sentenced to a penalty entailing loss of liberty and his conditional release is ordered, the suspension of the order concerning prohibition from residing in a specified place, obligatory residence or expulsion may by ordered by the Court by way of probation and subject to possible revocation, on such general terms and under such guarantees as are provided by law (Art. 207).

Article 153- Penalty in Case of Violation of Safety Provisions.

Infringements of the provisions relating to prohibition from resorting to certain places, or from residing or settling in the country, obligatory residence and the obligation to subject oneself to such supervision as is ordered, as well as prohibition from entering the territory of the State in case of expulsion, shall be punished under Articles 459 and 465.

Sub-section IV- Measures for Purposes of Information

Article 154- Notification to the Competent Authority.

In every case where the Court pronounces a secondary penalty or a protective or preventive measure as provided in the foregoing Sections, it shall notify without delay the administrative, civil, military or police authority concerned or any other competent public authority with a view to the enforcement of the decision and the control of its observation.

It shall, in each case, determine to what extent the decision shall be made publicly known in order to ensure its efficacy.

Article 155- Publication of the Judgment.

(1) Whenever the general interest or that of the accused or of the injured person so requires the Court shall order the publication of the judgment or parts thereof.

Such publication shall be ordered as a matter of course when it serves the public interest; it shall be effected only on a written request by the interested party when it serves private interests.

(2) The Court shall determine the conditions under which the publications shall take place and their number, according to usage, the circumstances of the case and expediency.

Publication may be effected by means of posters in a public place, or through other mass media.

Article 156- Entry in Judgment Register.

(1) Penalties and measures pronounced in a judgment shall be entered in the judgment register of the person concerned in cases where such an entry is required by law and in accordance with the provisions of the order relating thereto.

These provisions shall also determine the particulars to be included in the entries and their duration, the extent to which they may be communicated to other people having a justified interest therein, as well as the conditions under which they may be cancelled and the effect thereof in case of reinstatement.

(2) As a general rule, extracts from entry in judgment register are intended to enable the competent judicial authorities to ascertain the criminal antecedents of an accused person. They shall not be communicated to third parties or to offices which are not expressly entitled to take cognizance thereof, in order not to hinder the reinstatement of the convicted person.