I was sentenced by the police court a year ago. I received a new summons and, during the hearing, the judge did not see that I had already been sentenced. Is this normal?

Burden of proof of recidivism

Before the police court ruling in criminal matter, there is the person who is accused of the offense and the representative of the public ministry. Finally, where appropriate, the victims are present. 

It is up to the representative of the public ministry, the public prosecutor’s office or, in other words, the deputy public prosecutor, to bring the burden of proof of recidivism. These are the rules of the rights of defence. It is not enough to say that someone has committed an offence. We still have to be able to prove it.

If the prosecution forgets to mention the recidivism

At that time, it benefits the defendant. He will therefore not be condemned more severely because of the recidivism but condemned as if he had committed the offense (or offenses) for the first time.

If the prosecution does not prove the recidivism

The Court of Cassation issued a judgment on May 10, 2022 recalling the rules. The Court of Cassation is a jurisdiction that can still judge after an appeal from a decision of the police court. Thus, the litigant who does not agree with the judgment of the police court in criminal matters, can appeal to the criminal court. If he still does not agree with the decision and there are legal problems, he can appeal to the Court of Cassation.

However, the Court of Cassation only hears questions of law and not facts. In this judgment of May 10, 2022, it considered that the prosecution did not provide proof of the recidivism. In this case, he had simply filed an unsigned copy of the judgment relating to the previous offence. It was not mentioned how and to whom the judgment had been served. In addition, the criminal record did not mention this judgment.

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