France does not have a so-named writ of habeas corpus. Its Constitution, however, sets forth several guarantees against arbitrary detention and the Code of Criminal Procedure contains procedural safeguards implementing these guarantees. In addition, the Penal Code provides for harsh penalties for judges or civil servants who have ordered or tolerated arbitrary detention.
The preservation of liberty is proclaimed by article 2 of the 1789 Declaration of the Rights of Man, which has been incorporated into the present Constitution. Article 7 of such Declaration also provides that “No individual may be accused, arrested, or detained except where the law so prescribes, and in accordance with the procedure it has laid down.” The Constitution further states that “No one may be arbitrarily detained. The judicial authority, guardian of individual liberty, ensures the observance of this principle under the condition specified by law.” 
France is also a signatory of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Its article 5 provides that everyone has the right to liberty and sets forth permissible circumstances under which people may be deprived of their liberty and procedural safeguards in case of detention. In particular, it states that “anyone deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Code of Criminal Procedure contains several provisions implementing the constitutional guarantees set forth above. It provides, for example, that “any person arrested by virtue of a warrant who has been held for more than twenty-four hours without having been interrogated shall be considered as arbitrarily detained. Any judge or civil servant who has ordered or knowingly tolerated arbitrary detention shall be punished with the penalties stated in articles 432-4 to 432-6 of the Penal Code.” These articles of the Penal Code deal with infringements on individual liberty by persons exercising governmental authority or who are entrusted with a public service mission. They set forth very harsh penalties. Article 432-4, for example, reads as follows:
- A person exercising governmental authority or entrusted with a public service mission who, in the performance or on the occasion of performing his or her duties or mission, arbitrarily orders or performs an act prejudicial to individual liberty is punishable by seven years imprisonment and a fine of €100,000.
- When the prejudicial act is a confinement or retention for a period longer than seven days, the penalty is increased to thirty years imprisonment and a fine of € 450,000.
Furthermore, as a general rule, police services cannot detain a suspect more than twenty-four hours. The public prosecutor may extend this period for another twenty-four hours. Other extensions must be authorized by a specialized judge, the judge of liberties and detention, or by an investigating judge. Warrants are required for arrests. When placed on provisional detention during a formal judicial investigation, in addition to appealing the detention orders to the Investigating Chamber, a suspect or his attorney may file a petition for his release at any time during such investigation. The competent judge or court must rule within eight days from the date of the filing of the appeal.
Finally, judgments rendered by the Investigating Chamber (including detention orders) and judgments rendered by the courts of final instance in criminal matters may be quashed, in the event of a violation of the law, upon a request filed before the Cour de Cassation, France’s supreme court for judicial matters.
Prepared by Nicole Atwill
Senior Foreign Law Specialist
Updated by Nicole Atwill
Senior Foreign Law Specialist
- 1958 CONST., CODE CONSTITUTIONNEL 10 (Litec 2005). [Back to Text]
- Id. at 48 [Back to Text]
- Id. art. 66, at 576. [Back to Text]
- European Convention for the Protection of Human Rights and Fundamental Freedoms, CODE DE PROCEDURE PENALE [C. PR. PÉN.] 2083 (Dalloz 2009). [Back to Text]
- C. PR. PÉN. art. 126. [Back to Text]
- CODE PENAL [C. PEN.] art. 432-4 (Dalloz 2009). [Back to Text]
- C. PR. PÉN. art. 77. [Back to Text]
- Id. art.148. [Back to Text]
- Id. art. 567. [Back to Text]
Last Updated: 02/28/2014