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(May 24, 2011) The French Parliament adopted Law 2011-392 of April 14, 2011, on Police Custody, following a decision of the Constitutional Council on July 30, 2010, which held that certain provisions of the Code of Criminal Procedure governing the general regime of police custody (garde à vue) were unconstitutional. (Loi no. 2011-392 du 14 avril 2011 relative à la garde à vue [hereinafter Law 2011-392], LEGIFRANCE (last visited May 19, 2011).) The Council had given the government until July 1, 2011, to reform this regime. (Nicole Atwill, France: Provisions of Criminal Procedure Code on Police Custody Found Unconstitutional, GLOBAL LEGAL MONITOR (Aug. 13, 2010).) In addition, the Cour de Cassation, France's supreme court for civil and criminal matters, had subsequently ruled that these provisions violated the European Convention on Human Rights. (See Nicole Atwill, France: Supreme Court Ruled Some Police Custody Provisions Violate European Convention on Human Rights, GLOBAL LEGAL MONITOR (Oct. 27, 2010).)

The Law sets forth the principle that "no condemnation can be pronounced for a crime or délit based solely on declarations that a person made without the assistance of her attorney." (Law 2011-392, supra.) French criminal law distinguishes three categories of criminal offenses: crimes, délits, and contraventions. In broad terms, crimes are a small category of very serious offenses (e.g., murder, rape, treason, espionage), délits are less serious offenses (e.g., theft, fraud, assault), while contraventions include a broad range of regulatory offenses sometimes of strict liability.

For the first time, the Law gives a precise definition of police custody and of its objectives. A person can only be placed in police custody for probable cause to suspect that this person has committed or attempted to commit a crime or délit punishable by imprisonment. The police custody objectives are listed as follows in the Law: to allow investigations necessitating the presence or participation of the persons in custody; to guarantee the person being brought before the Public Prosecutor, so that official can decide how the investigation should proceed; to preserve the evidence; to stop pressure being placed on a victim or witness; to avoid communications taking place between suspects and their accomplices; and to put an end to the crime or prevent its repetition. (Id.)

The supervision of police custody remains in the hands of the Public Prosecutor, which appears to be contrary to a recent decision of the European Court of Human Rights in the case of Moulin v. France. (See Nicole Atwill, European Court of Human Rights / France: Applicant's Police Custody Rights Violated as Public Prosecutor Not Competent Legal Authority Under Article 5 § 3, GLOBAL LEGAL MONITOR (Dec. 13, 2010).)

Police custody cannot exceed 24 hours. It may, however, be extended for another 24 hours with the authorization of the Public Prosecutor, if the offense investigated carries at least a one-year term of imprisonment or if custody is the only means to reach one of the objectives listed above. (Law 2011-392, supra.)

The police officer must immediately inform the person placed in police custody of the following:

· the length of the police custody and of any renewal of custody;

· the nature and presumed date of the offense the person is suspected of having committed or attempted to commit;

· the right to notify a relative or employer;

· the right to be examined by a physician;

· the right to be assisted by an attorney; and

· the right to remain silent. (Id.)

The first interrogation of the person placed in police custody, unless it is only related to determining the identity of the person, cannot take place before the expiration of a two-hour delay, beginning from the time a request is made for an attorney. In exceptional circumstances, the Public Prosecutor or the Judge for Liberty and Detention may delay the presence of an attorney during the police interrogations for up to 12 hours, if such a measure is indispensable due to the particular circumstances of the investigation, to permit emergency investigations related to the gathering or conservation of evidence, or to prevent an imminent offense being committed against other persons. The presence of an attorney may be delayed by the Judge for Liberty and Detention at the request of the Public Prosecutor for up to 24 hours where the offense carries at least a five-year term of imprisonment. Finally, the attorney has access to any statements made by his client and to the medical certificate prepared by the physician, if there is one, but not to any other police evidence. He may not make a copy of his client's statements but he is permitted to take notes. (Id.)

The Law was supposed to become effective as of June 1, 2011. The Cour de Cassation, meeting in full court, however, ruled in four decisions rendered on April 15, 2011, that the reform should take effect immediately to conform to article 6, section 1(Fair trial) of theEuropean Convention on Human Rights. The Cour de Cassation stated that for the right to a fair trial to be real and concrete, a person placed in police custody must benefit gfrom the presence of an attorney from the beginning of the detention and during all the interrogations. (Arrêt no. 589 du 15 avril 2011 (10-17.049) - Assemblée plénière; Arrêt no. 590 du 15 avril 2011 (10-30.242) - Assemblée plénière; Arrêt no. 591 du 15 avril 2011 (10-30.313) - Assemblée plénière; & Arrêt no. 592 du 15 avril 2011 (10-30.316) - Assemblée plénière (all Cour de Cassation website, last visited May 19, 2011).)

Author: Nicole Atwill More by this author
Topic: Crime and law enforcement More on this topic
Jurisdiction: France More about this jurisdiction

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Last updated: 05/24/2011