“We spend our time hearing about a shock of simplification… and, in the end, it’s always more complexity. » This investigator relates the police anger which accompanies the entry into force of the latest police custody reform. Especially a few days before the Olympic Games, which risk generating additional activity for them. However, this is only a coincidence of timing: the decision is in reality a desire to comply with old demands of the European Union.
The initial directive of the latter, in this case, dates from October 22, 2013. In 2016 and then in 2021, the Commission had already demanded compliance from the French State, without success. To the point of raising its voice, on September 28, by giving France two months to “take the necessary measures to remedy the shortcomings”. On November 15, the government tabled a bill under accelerated procedure, finally adopted on April 22. Entry into force is therefore scheduled for tomorrow, Monday July 1.
Three points were raised in particular in the European Commission’s opinion. Firstly, the list of people that a person in custody can notify of their detention. Until now, the French Penal Code provided that it be the person with whom he usually lives, a direct relative, brother and sister or his employer. The Commission considered that the list was too restrictive. Result, the recent law adds to the list “any other person it designates”.
“An accomplice for example? asks an exasperated policeman. It is very difficult, at this stage of the investigation, to demonstrate that this or that person is involved in the affair! We can postpone the notice until the searches are carried out, that is true, but these are still papers to fill out, and we are already running out of time for the substance of the investigations. Was it really that necessary?
The person in custody cannot be heard alone, regardless of the time limits
Another decision which satisfied many lawyers, while worrying the police: the Commission ordered France to respect the right, for all suspects, to benefit from the effective presence of their lawyer during the hearing. Before 2011, in France, those in custody could benefit from a 30-minute interview with their lawyer. Since then, the latter has been authorized to attend all hearings. But until now, there was a ” waiting period “ two hours before the arrival of the council: after this period – already significant since police custody is limited in time – the investigators could proceed without a lawyer. It is over: without an express waiver on his part, the person in police custody cannot be heard alone, whatever the time limits.
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The only safeguard: the text provides for the seizure of the President of the Bar if the designated lawyer cannot intervene so that he can appoint a court-appointed lawyer. “And the latter will also be able to play for time!” insists an investigator. This is why the impact study which accompanied the government’s bill recognized possible implications “on the progress of the investigations”while putting into perspective the scope of these consequences “limited by the appointment of a court-appointed lawyer”. Before specifying that this modification was however “likely to increase the administrative and procedural burden on the investigating services”. A charge that investigators are (already) complaining about relentlessly.
An exception to the presence of the lawyer is however considered. Until now, the Penal Code provided for it “when the needs of the investigation so require”, at the request of the OPJ and upon written and reasoned decision of the public prosecutor. It also provided, exceptionally and upon written and reasoned authorization from the prosecutor or the judge of freedoms and detention (JLD), a possible postponement of the presence of the lawyer.
The law of 22 April preserves this possibility in order to allow the smooth running of urgent investigations aimed at collecting or preserving evidence; or to prevent a serious and imminent attack on the life, liberty or physical integrity of a person. “It’s above ground. In reality, parquet floorers are absolutely overwhelmed and these exemptions are never used! » another judicial police officer comments.
Investigators deplore a complication that is detrimental to the investigation… “and therefore to the victims”
If the lawyer arrives during the hearing, the text provides for an interruption of the hearing so that he can speak with his client. If he is absent by exemption, he will be able to consult the hearings and confrontations of his client.
“This increase in complexity will continue the collapse of a structure that politicians have been working for years to tilt towards the delinquent. It’s no longer a rule of law, it’s the Tower of Pisa! No one will want to become an investigator if it means being a clerk. »
Lawyers and investigators agree on one point: this is a new initiative to strengthen the rights of the defense. While the former are rather pleased about it, the latter often deplore a complication that is unfavorable to the investigation, “and therefore to the victims”.
