1. To begin with, what is a prescription?
In court, prescription is a period beyond which legal action cannot be taken. A kind of “expiry date” of a crime, an offense or a contravention, which means that, even if it is recognized, its responsible can no longer be worried or prosecuted.
2. There are two types of prescription
The “extinctive” prescription, first. According to article 2219 of the Civil Code, “Extinctive prescription is a mode of extinction of a right resulting from the inaction of its holder for a certain period of time. ». Clearly: extinctive prescription is a period defined by law, which, once exceeded, extinguishes the right to take legal action.
Then there is “acquisitive prescription”. According to Article 2258 of the Civil Code, “Acquisitive prescription is a means of acquiring property or a right by the effect of possession without the person who alleges it being obliged to bring back a title or being able to oppose the exception deduced from the bad faith. ». Conversely, the duration of time allows here to acquire a right. This is the case, for example, of an object found in the street which becomes yours if its owner has not manifested itself within three years from the loss of the object (and not a year and a day The proof in article 2276 of the Civil Code).
3. There are different deadlines depending on the importance of the crimes and misdemeanors
3 months : insults or defamation, and up to one year if it concerns racism, sexism or homophobia.
1 year : for violations.
6 years : for all offences. When it comes to “hidden offences” such as misuse of corporate assets, the limitation period does not begin until the facts are discovered. Small additional complexity: proceedings cannot be initiated either if the facts are more than twelve years old. Why make it simple when you can make it complicated ? Well I ask you, yeah.
20 years : for most crimes.
30 years : if they are “more serious crimes”. This is the case for terrorist acts or rape.
Note that, for acts committed on a minor, the period runs from the age of majority.
Only imprescriptible crimes : crimes against humanity.
4. Prescription has been around for a very (very) long time
It is indeed necessary to go back looooin in history to arrive at the concept of prescription in law: it would be inherited from Roman law. More precisely, from the reign of Augustus, since it would have been established in 18 or 17 BC. It was then a period of 5 years for “crimes of the flesh”. Then, it was Saint-Louis who, in 1246, introduced prescription into our law. The prescription of sentences appears at the time of the French Revolution. Finally, it is the code of criminal investigation which, in 1808 (under Napoleon), sets its deadlines for public action. Over the years, the law has evolved in step with reforms, such as that of 2008, lowering the limitation period under ordinary law from 30 years to 5 years.
5. Several arguments justify these delays…
To begin with, it echoes different rights: the “right to be forgotten” where the “legal forgiveness”. Next, it is understood that too long a period of time between the facts and a court appearance presents risks to the quality of the trial: we are talking about “fading away of evidence”, “fragility of old testimonies” and of “risk of disappointment”. Finally, there is also a question of technical constraints linked to the judicial institution: limitation allows the number of cases to be dealt with to be regulated.
6. …and counter-arguments condemn them
Among the elements put forward: scientific progress in terms of the duration of evidence. Today, DNA research is more advanced, the techniques for preserving seals have improved and their validity periods are increasing, sometimes beyond the current prescription periods. In the same way, written traces are now easy to find (such as financial movements or messages exchanged).
These outcry can also be explained by social facts. In fact, taboos are falling more and more, speech is being freed up on certain subjects, and society is becoming more sensitive to impunity.
7. The limitation period and the foreclosure period are two different things
Even if they seem very close, I grant you that. By definition, the foreclosure period “is the period during which it is possible to exercise a legal action. After this period, legal action is therefore no longer possible. The foreclosure period thus limits, in time, the possibility of asserting a right in court. ». What difference, you say? Well, foreclosure is simply stricter than prescription: it is inevitable, while prescription can be suspended, we come back to it right away!
8. Prescription may be suspended or interrupted
To suspend a prescription amounts to temporarily stopping its course, without erasing the time already covered. Conversely, the interruption cancels the progress made, and a new period starts again from the date of the interrupting act. This situation can arise in particular if a major incident or an impediment resulting from the law makes the action impossible, or if it is directed against a non-emancipated minor or an adult under guardianship.