Pre-trial detention

Conditions of remand in custody

Conditions relating to the recipient of the measure

Article 143-1 of the Code of Criminal Procedure subjects placement in pre-trial detention to several conditions relating to the recipient of the measure.

To be eligible for such a measure, you must first have been indicted by the examining magistrate in accordance with the procedure described in article 80-1 of the Code of Criminal Procedure .

In addition, the recipient must:

Either incur a criminal penalty;

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Either incur a correctional sentence of a duration greater than or equal to 3 years of imprisonment;

Either have voluntarily evaded the obligations of his judicial control or his house arrest with electronic surveillance, and this whatever the penalty incurred.

In this case, the examining magistrate or the Public Prosecutor will be able to refer the matter to the judge of freedoms and detention for the purposes of a provisional detention according to the procedure described in article 141-2 of the code of criminal procedure. .

Referral to the liberty and detention judge

Article 137-1 of the Code of Criminal Procedure provides that it is up to the Judge of Freedoms and Detention to rule on the relevance of a placement in pre-trial detention following an adversarial debate. The latter must be seized by a reasoned order of the investigating judge accompanied by the file and the requisitions of the Public Prosecutor concerning this deprivation of liberty.

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If the examining magistrate is unfavorable to such a placement, he may refuse to transmit the prosecutor's requisitions to the judge of freedoms and detention. Then, the Prosecutor will be able to override this refusal and directly refer the matter to the Judge of Freedoms and Detention under the specific conditions described in article 137-4 of the Code of Criminal Procedure .

The decision of the judge of freedoms and detention

Once seized, the judge of freedoms and detention will bring before him the indicted person assisted by his lawyer, if he has one. On this occasion, he will go through the elements of the file and will be able to collect observations from the accused and his lawyer if necessary.

If he plans to be placed in pre-trial detention, the judge must inform the indicted person, this measure can only be pronounced after a public adversarial debate with compulsory representation ( you will find the exceptions to this obligation to publicity in article 145 al. 4 of the code of criminal procedure ).

The accused may then demand to benefit from a period allowing him to find a lawyer and prepare his defense. Then, the judge can order the imprisonment of the accused for a maximum period of 4 days ( article 145 al. 6 of the code of criminal procedure ).

The Judge of Freedoms and Detention will only be able to pronounce or extend pre-trial detention if he demonstrates, based on factual and legal elements taken from the file, that it is the only measure likely to be to satisfy one or more of the seven grounds listed in Article 144 of the Code of Criminal Procedure .

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Grounds for remand in custody

Preserve the evidence or material clues that are necessary for the manifestation of the truth;

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Prevent pressure on witnesses or victims and their families;

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Prevent fraudulent consultation between the Charged Person and his co-perpetrators or accomplices;

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Protect the Charged Person;

Guarantee the maintenance of the person under examination at the disposal of justice;

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End the infringement or prevent its renewal;

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Put an end to the exceptional and persistent disturbance to public order caused by the gravity of the offense, the circumstances of its commission or the extent of the damage it caused. This disturbance cannot result from the media coverage of the affair alone. However, this paragraph is not applicable in correctional matters.

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The length of pre-trial detention

Pre-trial detention is governed by legal time limits which vary depending on whether the offense in question is of a criminal or correctional nature .

In addition, the duration of the deprivation of liberty must not exceed one "  reasonable delay  ".

In correctional matters

Article 145-1 of the Code of Criminal Procedure establishes the principle that, in correctional matters, pre-trial detention may not exceed four months .

The judge of freedoms and detention may, however, extend this four-month detention by a reasoned order issued following an adversarial debate during which the lawyer of the accused was duly summoned in two cases:

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When the accused has already been sentenced in the past for a crime or an offense under common law, to a criminal sentence or imprisonment without suspension of more than one year

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When the penalty incurred by the accused is more than five years' imprisonment

This extension will be renewable once by the judge of freedoms and detention following the same procedure without the total period of detention not exceeding one year.

The total duration of pre-trial detention will be increased to two years when one of the acts constituting the offense has been committed outside the national territory or when the person is prosecuted for drug trafficking, criminal conspiracy, procuring, extortion of funds. or for an offense involving 10 years imprisonment, committed in an organized gang.

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In addition, the Investigation Chamber may renew the ordinance for four months in addition to the two years exceptionally by a reasoned decision.

In criminal matters

Article 145-2 of the Code of Criminal Procedure provides for the principle that detention may not exceed one year .

However, the judge of freedoms and detention may extend it for a maximum of six months by a reasoned order taken following an adversarial debate to which the lawyer of the accused has been duly summoned.

This extension is renewable once under the same conditions.

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The maximum period of detention is two years when the penalty incurred is less than 20 years, but it is increased to three years in other cases.

These maximums are respectively raised to three and four years when one of the acts constituting the offense has been committed abroad.

The article contains a list of offenses bringing the maximum period of detention to four years in any case.

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The Investigation Chamber may, moreover, extend the provisional detention for an additional four months, an extension renewable once, when the investigation must be continued and "the release of the detainee would cause for the safety of persons or property. a particularly serious risk ” .

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Accumulation of durations

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In the case of a placement in pre-trial detention following the revocation of a judicial review granted to a person previously placed in pre-trial detention for the same facts, the cumulative duration of the detentions may not exceed by more than 4 months the maximum duration of detention provided for in Articles 145-1 and 145-2 ( Article 145-3 of the Code of Criminal Procedure ).

State of health emergency

During a state of health emergency, provisional detentions may be extended ex officio ( article 16 of ordinance n ° 2020-303 of March 25, 2020 adapting the rules of criminal procedure on the basis of law n ° 2020-290 of March 23, 2020 to deal with the covid-19 epidemic ):

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For 2 months in correctional matters when the penalty incurred is less than or equal to 5 years

For 3 months in other cases

For 6 months in criminal or correctional matters for the hearing of cases in the Court of Appeal

However, these extensions will only be regular if a judicial judge rules on them as soon as possible ( judgment of the criminal chamber of the Court of Cassation 26 May 2020 n ° 20-81.971, n ° 20-81.910 ).

The requirement of a reasonable duration

Article 145-1 of the Code of Criminal Procedure provides that pre-trial detention may not exceed "  reasonable duration  ".

This calculation takes into account the seriousness of the alleged facts and the complexity of the investigations necessary for the manifestation of the truth.

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As soon as the length of detention is unreasonable in the light of these factors or the reason for placement no longer exists, the investigating judge or the liberty and detention judge must order the person's immediate release .

The assessment of the reasonableness or not of the duration of the detention is a sovereign assessment of the trial judges: this means that the Court of Cassation is content to verify that such an assessment has indeed taken place, without checking the assessment in itself ( Criminal Chamber September 27, 2005 n ° 05-84.234 ).

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This section does not apply to a person subject to an indictment order .

To challenge a detention deemed unreasonable in this case, it will therefore be necessary to base one's action on Article 5§3 of the European Convention on Human Rights, which guarantees the right to be tried within a reasonable time.

This period is calculated from the first day of deprivation of liberty.

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The rights and remedies of the detainee

Provisional detainees are holders of several rights cited in articles 22 et seq. Of the law of 24 November 2009 n ° 2009-1436 . This list includes the right to be domiciled in the penitentiary establishment, the right to vote, the right to maintain family ties, the right to remuneration for the employed prisoner, etc.

Prisoners have the right to receive visits and to telephone third parties , this right being subject to authorization by the examining magistrate.

The latter may refuse such a request, and will be obliged to justify this refusal after one month of detention ( article 145-4 of the Code of Criminal Procedure ).

In case of refusal, the detainees have an appeal to the president of the investigating chamber who has 5 days to rule.

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The president of the investigating chamber will also be competent to hear appeals against the decisions of placement in solitary confinement taken by the investigating judge or the judge of freedoms and detention ( article 145-4-1 of the code of criminal procedure ) or against the decision of the investigating judge prohibiting the accused from communicating in writing with one or more persons he designates ( article 145-4-2 of the code of criminal procedure ).

In general, any detachable disciplinary sanction taken during detention, if it results in, "having regard to [its] nature and [its] seriousness", appreciable effects on the situation of the persons concerned, may be subject to an appeal before the administrative judge since a decision of the Council of State dated February 17, 1995 ( CE, Ass. February 17, 1995, Hardouin and Marie ).

It was thus found that the downgrading decision aimed at depriving an inmate of employment could thus be challenged before the administrative judge ( CE ass. December 14, 2007 Planchenault, n ° 290420 ).

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Applications for release

A request for release can be addressed to the clerk of the examining magistrate or to the head of the penitentiary establishment at any time by the accused, his lawyer or the Public Prosecutor.

Such a request will, however, be inadmissible if it is made when a request for prior release has still not been processed and the deadlines have not expired.

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If the examining magistrate does not give a favorable response to this request, he must send the file together with his reasoned opinion to the judge of freedoms and detention within 5 days.

The latter will then have 3 working days to rule on the request. If he does not manage to give a ruling on time, the claimant may apply directly to the chamber for the investigation of his claim, which in turn will have 20 days to rule. The Prosecutor will have four days to appeal a decision granting release.

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The judge seized of the request must order the immediate release of the applicant as soon as the conditions provided for in articles 144 and 144-1 paragraph 1 of the Code of Criminal Procedure are no longer met (article 144-1 of the Code of Criminal Procedure).

Important: by a decision rendered on October 2, 2020 ( QPC decision n ° 2020-858 / 859 ), the Constitutional Council considered that the absence of a ground for release based on the unworthy conditions of detention was contrary to the Constitution. The legislator has until March 1, 2021 to reform the texts.

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Release may take place automatically when:

The investigating chamber has still not ruled within the 20 days allotted to it

The indicted person suffers from a life-threatening pathology

The physical or mental state of the accused is incompatible with his continued detention (article 147-1 of the Code of Criminal Procedure)

If the application for release is granted, it may be accompanied by a judicial review measure or a house arrest with electronic surveillance.

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Requests for reparation

If the procedure ended with a decision of dismissal, discharge or acquittal which has become final, the person who has been detained may file a request with the president of the Court of Appeal responsible for the decision in order to obtain full compensation for the moral and material damage caused to him by the detention ( Articles 149 et seq. of the Criminal Procedure Code ).

This request must be made within 6 months of the final decision . The first president of the Court of Appeal will then have to render a reasoned decision at the end of a public and adversarial procedure which will be subject to appeal before a National Commission for the reparation of detentions within 10 days after its notification. .

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Last updated: November 2020

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