Police custody in criminal proceedings
Garde à vue (GAV) is a measure of constraint by which an officer of the judicial police (OPJ) keeps at the disposal of investigators a person against whom there are one or more reasons to suspect that he or she has committed or attempted to commit a crime or misdemeanor punishable by imprisonment.
Conditions of police custody
A. Conditions governing police custody
In accordance with articles 62-2 paragraph 1 and 63-1 paragraph 1 of the Code of Criminal Procedure, the Public Prosecutor and OPJs are the only people with the power to place people under arrest.
It is very important to know that, from the outset of police custody, OPJs must use all available means to inform the detainee of his or her rights and the nature of the offence he or she is suspected of having committed.
Police custody may only be enforced against the suspect or his accomplice, and under no circumstances against a witness.
Under article 62-2, paragraph 2 of the French Code of Criminal Procedure, police custody must be the sole means of achieving one or more of the following objectives:
- Enable investigations involving the person's presence or participation to be carried out
- Guarantee that the person is brought before the public prosecutor so that the latter can assess the follow-up to be given to the investigation.
- Prevent the person from tampering with material evidence or clues
- Prevent the person from putting pressure on witnesses or victims and their families or loved ones
- Prevent the person from colluding with other people who could be their co-perpetrators or accomplices
- Guarantee the implementation of measures to put an end to the crime.
As police custody can only be used to achieve the precise objectives mentioned above, it is important to consult a criminal lawyer if you have any doubts about the reasons why you or someone close to you is being held in police custody.
The latter will check that you or your loved one have not been arbitrarily detained without any consideration for the rules normally applicable to police custody.
B. Conditions governing the duration of police custody
In principle, according to article 63-1 of the French Code of Criminal Procedure, the duration of police custody may not exceed 24 hours from the moment the suspect is deprived of his or her freedom of movement.
However, the duration of police custody may be extended for a further 24 hours with the written, reasoned authorization of the Public Prosecutor, if this is the sole means of achieving one of the above-mentioned objectives.
GAV can still be extended for two types of offence.
- In the case of offences committed by organized gangs, the period of police custody may be extended by a further 48 hours, for a total of 96 hours, in accordance with article 706-88 of the Code of Criminal Procedure.
- In the case of terrorism-related offenses, under article 706-88-1 of the Code of Criminal Procedure, GAV may exceptionally be extended by 48 hours, in addition to the 96 hours possible for organized crime. In short, in cases of terrorism, the liberty and custody judge (JLD) may decide to extend the suspect's GAV for a total of 144 hours, i.e. a maximum of 6 days.
As the duration of police custody is subject to particularly precise regulation and control, it is advisable to call on the assistance of a lawyer specializing in criminal law as soon as possible, so that the latter can carefully observe the reasons for any extension of police custody.
Because if the extended police custody is invalid, your criminal lawyer will be able to argue before the judge that all the acts and statements made during the extended police custody are null and void.
Safeguards inherent in police custody and the rights of persons in police custody
Safeguards inherent in police custody
Guarantees include notification of rights to the detainee, in accordance with article 62-3 of the Code of Criminal Procedure, and audiovisual recording of hearings in criminal cases, in accordance with article 64-1 of the Code of Criminal Procedure.
Recourse to the police custody procedure also guarantees the drafting of a report containing all the useful elements that can be used for subsequent review by the suspect's lawyer, as well as for the preparation of his defense in the event that the suspect is indicted at the end of the police custody procedure.
As regards the conduct of the GAV, it must be carried out in conditions that respect the dignity of the person, in accordance with article 63-5 of the Code of Criminal Procedure.
In a decision dated October 2, 2014, the judges of the European Court of Human Rights ruled that a police custody cell of 1m2 per person, with no partitioned toilet and insufficient light, undermined the dignity of the person in police custody (ECHR. October 2, 2014, Rhazalie et a. c/ France).
If you feel that you have been detained in disgraceful conditions, or if you have any doubts as to whether the procedural obligations imposed on OPJs regarding the conduct of your police custody have been respected, you should contact a lawyer specializing in criminal law as soon as possible, if this has not already been the case during your police custody.
The rights of persons in police custody
While in police custody, the suspect has certain rights. For example, under article 63-2 of the French Code of Criminal Procedure, a person in police custody has the right to notify one of his or her next of kin, as well as his or her employer.
Under article 706-112-1 of the French Code of Criminal Procedure, if the suspect is a protected adult, he or she is entitled to the presence of his or her guardian or curator.
Under article 63-1 et seq. of the French Code of Criminal Procedure, persons in police custody have the right to a medical examination, and the right to remain silent during hearings with officers of the judicial police.
Lastly, in accordance with articles 63-4-2 et seq., suspects are entitled to a 30-minute meeting with their lawyer within the first hour of police custody.
As soon as the detainee requests the assistance of his criminal lawyer, the first hearing cannot begin until the lawyer has arrived, except after the expiry of a two-hour period from the time the lawyer is contacted.
In conclusion, if after reading this fact sheet you feel that one of your rights or those of a loved one has been violated, you should contact a lawyer specializing in criminal law as soon as possible, as only he or she will be perfectly capable of clarifying your questions and building your defense.