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European Court of Human Rights; France: Rights to Remain Silent and to Be Assisted by a Lawyer

(Oct. 18, 2010) On October 14, 2010, the European Court of Human Rights condemned France for violating article 6, sections 1 and 3 of the European Convention on Human Rights (right to remain silent and not to incriminate oneself) in the case of Brusco v. France. (European Court of Human Rights, Brusco v. France [in French] (Oct. 14, 2010),

The facts are as follows: B.M. was attacked by two hooded individuals in the underground garage parking of his building. He filed a complaint against his wife and Mr. Brusco, whom he thought were having an affair. Brusco was heard as a witness and asked to swear “to tell the truth, the whole truth and nothing than the truth,” as a witness could be required to do so under a provision of the Code of Criminal Procedure that has since been abolished. He confessed to having hired two men and paid them to scare B.M. into leaving his wife, but denied having asked them to use any physical violence. He was not assisted by an attorney. At the time he was heard as a witness, Brusco was in fact already a suspect, as the two presumed attackers of B.M. had been arrested earlier, and one of them had identified Brusco as the mastermind behind the attack. Brusco was not successful in his attempts before the French courts to have his statement made under oath not entered into evidence, and he was sentenced to five years of imprisonment based in part on the statements he made as a witness. (Id.)

The Court noted that Brusco, who was in fact a suspect rather than a witness at the time he was placed in police custody and interviewed, had not been informed of his rights to remain silent, not to answer any questions, or to answer only those questions he wished to answer. In addition, he was only allowed to have an attorney after 20 hours in police custody. The seven judges of the Court unanimously found that his right to not incriminate himself had been violated, and France was ordered to pay €5000 to the applicant to cover his moral damages and €7,000 for costs and expenses (about US$7,036 and 9,850, respectively). (Id.)

On July 30, 2010, the French Constitutional Council had already found that certain provisions of the Code of Criminal Procedure governing the general regime of police custody (garde à vue) were unconstitutional. In particular, the Council held unconstitutional the provisions that either excluded or limited the right of an attorney to be present during the interrogation of his client and limited the attorney's access to the client's file. The Council gave the government until July 1, 2011, to reform this regime. (Décision no. 2010- 14/22 QPC du 30 juillet 2010, LEGIFRANCE (July 30, 2010),, File: les autres textes législatifs et réglementaires). (See Nicole Atwill, France: Provisions of Criminal Procedure Code on Police Custody Found Unconstitutional, GLOBAL LEGAL MONITOR (Aug. 13, 2010), //

The Minister of Justice has prepared a draft law on police custody that was presented to the Council of Ministers on October 14, 2010. The draft law authorizes the presence of an attorney at all stages of police custody, with some exceptions. (Premier Ministre, Projet de loi relative au recours à la garde à vue, government official website (Oct. 14, 2010),