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France: Supreme Court Ruled Some Police Custody Provisions Violate European Convention on Human Rights

(Oct. 27, 2010) On October 19, 2010, the Cour de Cassation, France's Supreme Court for civil and criminal matters, ruled in three decisions that some of the provisions of French law on police custody (garde à vue) violate article 6 of the European Convention on Human Rights (ECHR) (right to a fair trial). (Cour de Cassation, Communiqué relatif aux arrêts rendus le 19 octobre 2010 par la Chambre criminelle de la Cour de cassation, (Oct. 19, 2010),
.) A few days earlier, the European Court of Human Rights had condemned France for violating article 6, sections 1 and 3, of the ECHR (right to remain silent and not to incriminate oneself) in the case of Brusco v. France. (Nicole Atwill, European Court of Human Rights / France: Rights to Remain Silent and to Be Assisted by a Lawyer, GLOBAL LEGAL MONITOR (Oct. 18, 2010), // On July 30, 2010, the French Constitutional Council had found certain provisions governing the general regime of police custody unconstitutional, but not the special police custody regime applicable to offenses pertaining to terrorism and organized crime. (Nicole Atwill, France: Provisions of Criminal Procedure Code on Police Custody Found Unconstitutional, GLOBAL LEGAL MONITOR (Aug. 13, 2010), // In the three cases at hand, the Cour de Cassation decided that some provisions of this special regime violate the ECHR. (Cour de Cassation, supra.) The Cour de Cassation stated that to conform to the ECHR, police custody must respect the following principles:

restriction of the right to be assisted by an attorney from the beginning of placement in police custody can only be done for an imperative reason that may only result from the nature of the offense;

the person placed in police custody must be notified of her/his right to be silent; and

the person placed in police custody must benefit from the assistance of an attorney under conditions that permit the person to organize his/her defense, including having the attorney present during police questioning.

These new rules, however, will only be applicable after the government reforms the police custody regime. The Constitutional Council gave the government until July 11, 2011, to institute the reform.