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France: Provisions of Criminal Procedure Code on Police Custody Found Unconstitutional

(Aug. 13, 2010) On July 30, 2010, the French Constitutional Council found that certain provisions of the Code of Criminal Procedure governing the general regime of police custody (garde à vue) are unconstitutional. The Council gave the government until July 1, 2011, to reform this regime (Décision no. 2010-14/22 QPC du 30 juillet 2010, Legifrance, (last visited Aug. 9, 2010) [search in Les autres textes législatifs et réglementaires, using “Décision” as type of text and “2010-14” as the number]).

In France, the review of the constitutionality of laws is solely entrusted to a Constitutional Council. The Council expresses an opinion on the constitutionality of a law before its promulgation. All laws relating to the institutions and the rules of procedure of both parliamentary assemblies are submitted to the Council; ordinary laws can only be submitted to the Council by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, or, more commonly, by 60 deputies or senators (id.). A recent reform of the Constitutional Council, which entered into force on March 1, 2010, allows citizens to challenge the constitutionality of certain laws under a specific procedure; a party to a trial that considers that a law or one of its provisions applicable to his/her case infringes upon the rights and liberties set forth in the Constitution may refer the law or provision to the Constitutional Council through the Cour de Cassation (France's highest judicial court) or the Conseil d'Etat (France's highest administrative court). (Ordonnance n˚ 58-1067 du 7 novembre 1958 portant loi organique sur le conseil constitutionnel (as amended) (consolidated version, July 24, 2010), Legifrance, (last visited Aug. 9, 2010) [search in Les autres textes législatifs et réglementaires]).

Certain Restrictions on Attorney Access Unconstitutional

The Council found unconstitutional the provisions of the Code of Criminal Procedure that either excluded or limited the right of an attorney to be present during the interrogation of his client and limited attorney access to the client's file. The Council stated that these provisions violated articles 9 and 16 of the 1789 Declaration of the Rights of Man, which is part of the 1958 Constitution (Décision no. 2010- 14/22 QPC, supra).

Under the general police custody regime, police officers cannot detain for more than 24 hours “a person against whom there are one or several plausible reasons to suspect that he/she has committed or attempted to commit a criminal offense.” (Code de procédure pénale (C. pr. pén), art. 63), Legifrance, [search in Les codes en vigueur].) The initial decision to detain a suspect is made by a police officer, who must inform the public prosecutor at the outset. This detention may be extended for another 24 hours by the public prosecutor, either in writing or after the suspect appears before him (id).

The suspect has access to his attorney or to an attorney appointed by the head of the local bar from the first hour of custody. However, the meeting between the attorney and the detainee cannot exceed 30 minutes. The police must provide the attorney with information about the date and nature of the offense, but the attorney is not permitted access to the file containing the evidence, nor is he or she allowed to be present during the interrogation of his client (C. pr. pén, art. 63-4).

Special Police Custody Regime for Terrorists, Mob Figures Constitutional

The Council did not find unconstitutional, however, the special police custody regime applicable to offenses pertaining to terrorism or organized crime. In the case of these offenses, police custody may exceptionally be extended up to a total of four days, and even up to six days, if it appears during the period in which the suspect is in police custody that there is a serious risk of an imminent terrorist attack in France or abroad or that international cooperation requires it. (C. pr. pén., arts. 706-73 & 706-88.) Access to an attorney, in such cases, may be permitted only after 48hours or, if an extension is granted, only after 72 hours and then only for an initial 30-minute session. The attorney is not provided with the case file prior to the meeting. Where the custody is extended beyond three days, the suspect may request to see an attorney at the expiration of the fourth and fifth days, but again only for 30 minutes and without access to the case file (id).