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Police custody is a deprivation of liberty . As such, it is strictly framed by law and subject to the control of the judicial judge. It is codified in articles 62-2 et seq. Of the Code of Criminal Procedure .
Everyone in police custody has rights set out in law. The consequences of not respecting them can be important for the rest of the procedure.
Specific rules apply to minors . They are provided for in article 4 of the ordinance of 2 February 1945 relating to delinquent children .
Placement in police custody
Placement in police custody can be decided for any person "against whom there are one or more reasons to suspect that he has committed or attempted to commit a felony or an offense punishable by imprisonment " (article 62-2 of the Code of Criminal Procedure) .
This measure can be decided regardless of the type of investigation carried out: flagrance investigation, preliminary investigation or judicial investigation.
Only a judicial police officer , who can be a police officer or a gendarme, can decide to be placed in police custody: ex officio, or on the instruction of the public prosecutor (article 63 of the Code of Criminal Procedure) .
The officer who decides on the placement in police custody has the obligation, from the start of it, to inform the Public Prosecutor, by any means.
Police custody must be the only means of achieving one of the objectives provided for by law , at least:
"1 ° Allow the execution of investigations involving the presence or participation of the person;
2 ° Guarantee the presentation of the person before the public prosecutor so that this magistrate can assess the follow-up to be given to the investigation;
3 ° Prevent the person from modifying material evidence or clues;
4 ° Prevent the person from putting pressure on witnesses or victims as well as on their families or relatives;
5 ° Prevent the person from consulting with other people likely to be their co-authors or accomplices
6 ° Guarantee the implementation of measures intended to put an end to the crime or offense "
(article 62-2 of the Code of Criminal Procedure)
As soon as they are placed in police custody, the person who is the subject of this measure is immediately informed , in a language that they understand: of their placement in police custody, the duration of the measure and any extension thereof. and the qualification, date and location of the offense in question, as well as the reasons justifying his placement in police custody (article 63-1 of the Code of Criminal Procedure) .
The duration of police custody
Police custody cannot last more than 24 hours .
It can be extended for an additional 24 hours with written authorization and motivated by the public prosecutor, only if: the offense in question is a felony or an offense punishable by at least one year of imprisonment and if this extension constitutes the only means of achieving one of the objectives mentioned in article 62-2 of the Code of Criminal Procedure.
This extension can only be authorized after the person has been presented to the public prosecutor, possibly by audiovisual communication (article 63 of the Code of Criminal Procedure) .
If the custody takes place within the framework of a judicial investigation, it is the investigating judge who decides on its possible extension beyond 24 hours. (article 154 of the Code of Criminal Procedure) .
Police custody can, in certain cases, exceed the maximum duration of 48 hours .
Thus, within the framework of the procedures applicable to organized crime and delinquency (list of offenses drawn up in article 706-73 of the Code of Criminal Procedure): custody may be subject to two additional 24-hour extensions. each, thus reaching 96 hours .
In this case, these extensions are authorized either by the judge of freedoms and detention (at the request of the public prosecutor), or by the examining magistrate. (article 706-88 of the Code of Criminal Procedure).
Furthermore "if it emerges from the first elements of the investigation or of the police custody itself that there is a serious health risk of the imminence of a terrorist action in France or abroad or that the necessities of international cooperation imperatively require it " : the judge of freedoms and detention can proceed to two additional extensions of 24 hours each for police custody based on one of the offenses cited in 11 ° of article 706-73 of the Code of procedure (article 706-88-1 of the Code of Criminal Procedure) .
The rules of article 706-88 apply to these extensions.
The assistance of a lawyer
Since Law 2011-392 of April 14, 2011, any person placed in police custody has the right to be assisted by a lawyer, who can be appointed ex officio. The lawyer must be informed of the nature and the envisaged date of the offense under investigation (article 63-3-1 of the Code of Criminal Procedure) .
The lawyer thus appointed can then meet with the defendant, for an interview of thirty minutes per 24 hour period of police custody. (article 63-4 of the Code of Criminal Procedure) .
The lawyer can consult various minutes, and take notes about them: in particular the minutes of notification of rights, placement in police custody or hearings (article 63-4-1 of the Code of Criminal Procedure) .
He must finally be informed of any transport of the person held in police custody to another place (article 63-4-3-1 of the Code of Criminal Procedure) .
Notification of rights
Anyone placed in police custody must immediately be notified of their rights , in a language which they understand, if necessary with the help of an interpreter.
This notification must be mentioned in the report of the police custody.
It benefits in this context:
"- the right to inform a relative and his employer as well as, if he is of foreign nationality, the consular authorities of the State of which he is a national, and, if necessary, to communicate with these persons, in accordance with the article 63-2;
- the right to be examined by a doctor, in accordance with article 63-3 ;
- the right to be assisted by a lawyer, in accordance with Articles 63-3-1 to 63-4-3 ;
- where applicable, the right to be assisted by an interpreter;
- the right to consult, as soon as possible and at the latest before the possible extension of police custody, the documents mentioned in article 63-4-1;
- the right to present observations to the public prosecutor or, where applicable, to the judge of freedoms and detention, when this magistrate decides on the possible extension of police custody, tending to have him terminated this measure. If the person is not presented before the magistrate, he can make his observations known orally in a report of the hearing, which is communicated to him before he decides on the extension of the measure.
- the right, during hearings, after disclosing his identity, to make statements, to answer questions put to him or to remain silent. "
Body searches
Security measures can be taken to ensure that the person in custody does not have with him any dangerous object , for himself or for others. These can be palpations or electronic detection means.
A full body search can only be carried out if this proves to be essential for the needs of the investigation and if the aforementioned security measures are not feasible.
Such a search can only be decided by a judicial police officer. It must be carried out in a closed space and by a person of the same sex as the one placed in police custody.
From "internal bodily investigations" can only be performed by a doctor.
(article 63-6 and 63-7 of the Code of Criminal Procedure)
Audiovisual recording of hearings in police custody
Since 2012, an audiovisual recording has been made of all hearings carried out in the context of police custody in the event of a crime .
This recording may be consulted, on request addressed to the investigating judge or to the trial court, only in the event of a dispute as to the content of the hearing report (that is to say its written transcript).
Five years after the termination of the public action, the recording is destroyed within a period of one month.
(article 64-1 of the Code of Criminal Procedure)
At the end of the period of police custody, on the instruction of the public prosecutor, the person is either released or brought before this magistrate .
The person who has been the subject of the custody measure may consult the file of the proceedings and make observations. For more information on this subject, we refer you to article 77-2 of the Code of Criminal Procedure .
Last updated: May 2020
CALCULATION OF THE START TIME OF SIGHT CUSTODY (article 63 of the Code of Criminal Procedure)
If, before being placed in police custody, the person concerned was apprehended or was subjected to any other measure of constraint (for example an identity check), for the same facts , the time of the beginning of police custody is fixed at the time when she was deprived of her liberty.
In the absence of a measure of constraint, if the person has been placed in police custody immediately after an interview , the time for the start of police custody is set at the start of the interview.
If a person has already been placed in police custody for the same facts, the duration of previous custody is taken into account for the calculation of the total duration.
CONSEQUENCES NON-RESPECT FOR THE RIGHTS OF THE PLACED PERSON IN CUSTODY
The respect rights of persons in police custody is controlled by the judicial judge, guardian of individual liberty (article 66 of the Constitution) .
If the guarantees which protect the detained person are not respected, the measure can be annulled, and all subsequent acts based on it (for example, investigative acts permitted by comments made during one of the hearings).
To be able to cancel police custody, it is necessary to prove that the failure to observe substantial formalities has harmed the interests of the person concerned. ( article 802 of the Code of Criminal Procedure ).
In certain cases, this attack on the interests of the detained person is presumed: for example the absence of notification of rights, the delay in informing the prosecutor or in the notification of the placement in police custody.
This is why it is essential to know your rights and to be assisted by a lawyer, whose task is precisely to ensure that the rights of your client are respected during criminal proceedings.