Pre-trial Detention in the European Union

Transcription

1 This chapter is part of the publication Pre-trial Detention in the European Union An Analysis of Minimum Standards in Pre-trial Detention and the Grounds for Regular Review in the Member States of the EU A.M. van Kalmthout M.M. Knapen C. Morgenstern (eds.) ISBN: The publication Pre-Trial Detention in the European Union, An Analysis of Minimum Standards in Pre-trial Detention and the Grounds for Regular Review in the Member States of the EU can be ordered via Tilburg University or Wolf Legal Publishers. Send your order to Tilburg University: or to Wolf Legal Publishers: Price: 37,50 EURO or 55 USD (excluding shipment) Online orders are possible via Also see this website for other books by these editors. WLP 2009 This study was funded by the European Commission

2 Chapter 10 France

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4 FRANCE 1. Introduction 1 The pre-trial phase of the criminal process has attracted almost constantly controversy in France since the return of the inquisitorial form of pre-trial in the Napoleonic Code d Instruction Criminelle of Despite several reforms some involved a commission charged with examining the criminal process and some were concerned with ensuring better conformity between French law and the European Convention on Human Rights (i.e. the more recent reforms of 1993 and 2000) 3 the French pre-trial process remains the most tenacious and seemingly unreformable aspect of the original Napoleonic procedure. 4 In this paragraph we mention some aspects of the French criminal process, and touch upon some reforms and their relevant results. 5 The first written criminal procedure law in France was the one of 1808 (Code d instruction criminelle) and remained into force until It was enacted after the French Revolution and set out the principles of criminal proceedings, namely a) the rule of separation between prosecution, pre-trial instruction by an investigating judge and judgment by a court, b) the right of appeal, and c) the principe de la collégialité: most nonminor offences (délits) are heard by a panel of three career magistrates and major offences (crimes) by a panel of three professional judges and a jury of nine or thirteen members 6. The law of 1808 was established to set up a monopoly on force to the state. Its Napoleonic influence gave abundant powers to the public prosecutor s services and weakened the rights of persons under police detention and the investigating magistrate s scope and independence. In 1958, a new Code of Criminal Procedure saw the light which tried to remedy some of the previous code s failings. It gave wider and clarified rights to defendants and to plaintiffs, it took into account human and individual sciences and aimed at striking a balance between social and individual interests, and it wanted to prevent undue delays in criminal cases 7. But as the society changes, the need for changes of the law also comes up. The main concerns that evolved after 1958 were those regarding the investigating judge and his large discretionary powers in placing a suspect under remand prior to any court sentence. However, it took until 2000 that a new law was enacted. The law of 15 June 2000 aimed to strengthen the praesumptio innocentiae and has been incorporated within the Code of Criminal Procedure, modifying 300 of its articles. The most important aspect of this reform in relation to the subject of this report was that it enhanced guarantees given to people during police remand regarding the right of silence, immediate contact with a lawyer, possible medical examination and family contact. Police investigations are also more closely monitored by the public prosecutor s office. Besides this, the new law removes the power of ordering pre-trial detention from the investigating judge and gives 1 This chapter was written by M.M. Knapen and W.A.M. van der Linden. 2 Vogler 2008, p Hodgson 2005, p Vogler 2008, p See for comprehensive work on the Criminal Procedure in France, inter alia, Hogson 2005 and Vogler Mc Kee 2001, p Ibidem. 359

5 CHAPTER 10 it to a new judge, the juge des libertés et de la détention. This new judge decides, after a special hearing devoted to the question of detention, whether or not to place a suspect under detention. The law also states that pre-trial detention must be an exceptional measure and shortens the length of the pre-trial detention 8. The reform of June 2000 (but also the earlier reform of 1993) made important changes to French criminal procedure. As a result, the rights of the accused as well as the victim were made stronger. It provided clearer rules of the exercise of the power of the police and made the decision making process of magistrates more accountable. 9 Some years after this reform, the political agenda changed and priority was given to security and repression a development which can be perceived in other European countries as well. The Law of 9 March 2004 against organised crime also concerned premeditated murders, terrorist offences, arms and drug trafficking, etc. committed by more than one person. Amongst other things, the Law gave enhanced powers to the police. Moreover, the garde à vue (literally meaning: the arrested person is kept in custody and under surveillance 10 ) was extended for both adults and minors to 96 hours with a further 20 hours available before production to the prosecutor. Access to a lawyer became possible on the 36 th and 48 th hour and in cases concerning terrorism on the 72nd hour Empirical background information Statistics for the numbers within the prison population, pre-trial detention/remand imprisonment, etc. in France are provided by various sources. This paragraph presents data from different international sources; amongst others, the Council of Europe s SPACE 1, International Centre for Prison Studies of King s College London. First, we will present the data, then explain and compare the statistics. Tables 1 to 5 are based on SPACE I, Survey and , from the Council of Europe. The numbers relate to the 1 st of October 2006 and 2007 (stock) respectively and include the European territory of France (known as Métropole) as well as to the French overseas territories (Guadeloupe, Martinique, French Guiana and Reunion (known as DOM or Départements d Outre-mer). According to a statement in SPACE I, Survey 2007, the new Law on the equilibrium of the criminal proceedings entered into force on 5 March 2007 and the Law on the reinforcement of the fight against reoffending on 10 August At 22 July 2006, there was a Decree on the collective pardon. 14 These legislative measures could directly influence trends in the number of prisoners. Figures 1 to 3 are also based on SPACE I and provide information on the (broad) definition of pre-trial prisoners as it is being used in this study; the number of pre-trial 8 Ibidem, p. 9. See also Hodgson 2005, p. 40 and onwards on The Strengthening of Due Process Protections and p. 45 and onwards on The Return to Repression. Vogler 2008 provides a comprehensive overview on Pre-trial problems and proposals for reform (pp ). 9 Hodgson 2005, p Vogler 2008, p Ibidem, p Aebi and Delgrande Aebi and Delgrande Ibidem, p

6 FRANCE prisoners is calculated as the sum of all prisoners who have not received their final sentence, namely besides untried prisoners, also prisoners who are convicted but not sentenced, and those who are sentenced but who have appealed or who are within the statutory time limit for doing so. The number does not include the other cases. In order to receive the percentage of pre-trial prisoners, this number is divided by the total prison population minus the other cases. The definition of pre-trial prisoners according to SPACE I differs: the number of pre-trial prisoners is calculated as the sum of all prisoners who have not received their final sentence plus other cases. This number is divided by the total prison population (incl. other cases ). The statistics in tables 6 to 8 are derived from the International Centre for Prison Studies (ICPS). This centre published the World Pre-trial / Remand Imprisonment List 15 in 2008 and in 2006 the World Female Imprisonment List 16. Finally, in tables 9 to 11 specific attention will be paid to, inter alia, the Council of Europe s SPACE I data, international statistics from the ICPS of King s College London, and the European Sourcebook of Crime and Criminal Justice. By way of comparison, the different sources of data will be presented together; it shows, amongst other things, that it is quite difficult to compare the data because of the different dates of recording and the different definitions of pre-trial detention. 2.1 Data from the Council of Europe Annual Penal Statistics, SPACE I, Survey 2006 and 2007 Table 1: Situation of penal institutions Survey 2006* Survey 2007 Population annual estimates Total number of prisoners 57,876 63,500 (including pre-trial detainees) Prison population rate per 100,000 inhabitants Total capacity of penal institutions / prisons 50,419 50,714 Prison density per 100 places 114.8% 125.2% * Figures relate to the whole prison population and not only to those held in penal institutions. 15 Walmsley Walmsley

7 CHAPTER 10 Table 2: Structure of prison populations: minors, persons between 18 and 21 of age, female prisoners and foreign prisoners Survey 2006* Survey 2007 Number of prisoners under 18 years old* (including pre-trial detainees) % of prisoners under 18 years old* 1.1% 1.0% (including pre-trial detainees) Number of prisoners from 18 to less than 21 years old* 4, (including pre-trial detainees) % of prisoners from 18 to less than 21 years old* 7.5% 7.5% (including pre-trial detainees) Number of female prisoners (including pre-trial detainees) % of female prisoners in the total number of prisoners 3.7% 3.8% (including pre-trial detainees) Number of foreign female prisoners (including pre-trial detainees) % of foreign females in the total number of female prisoners % (including pre-trial detainees) Number of foreign prisoners 11,436 12,341 (including pre-trial detainees) % of foreign prisoners in the total number of prisoners 19.8% 19.4% (including pre-trial detainees) Number of foreign pre-trial detainees % of foreign pre-trial detainees in the total number of foreign prisoners No figures available; * figures relate to the whole prison population and not only to those held in penal institutions. Table 3: Legal status of prison populations: numbers Survey 2006 Survey 2007 Untried prisoners (no court decision yet reached) 18,444* 15,617 Convicted prisoners, but not yet sentenced --- Sentenced prisoners who have appealed or who are within the 1,929 statutory limit for doing so Sentenced prisoners (final sentence) 39,425 45,952 Other cases 7** 2*** Total 57,876 63, No figures available, because the concept is not found in the French penal system;* it s not possible to keep these categories separate in the statistics; ** involves cases of enforcement against person (fine defaulters); *** involves legal measures of constraint 362

8 FRANCE Table 4: Legal status of prison populations: percentages and rates Survey 2006 Survey 2007 % of prisoners not serving a final sentence 31.9% 27.6% Rate of prisoners not serving a final sentence per 100, inhabitants % of untried prisoners 31.9% 27.6% (no court decision yet reached) Rate of untried prisoners (no court decision yet reached) per 100,000 inhabitants Table 5: Evolution of prison populations between 2000 and 2007 Total number of prisoners (including pre-trial detainees) Prison population rate per 100,000 inhabitants Average 89.0 Figure 1 Total Number Pre-Trial Prisoners in France Source: Council of Europe, SPACE (2009)

9 CHAPTER 10 Figure 2 Percentage Pre-Trial Prisoners in France Source: Council of Europe, SPACE (2009) 40,0% 35,0% 30,0% 37,1% 35,0% 34,0% 34,6% 35,1% 35,1% 31,8% 31,9% 27,6% 33,6% 25,0% 20,0% 15,0% 10,0% 5,0% 0,0% Aver. % Figure 3 Pre-Trial Imprisonment Rater per 100,000 national population in France Source: Council of Europe, SPACE (2009) ,1 30,3 34,5 31,8 32,3 29,2 27,6 30, Aver. 364

10 FRANCE 2.2 Data from the International Centre for Prison Studies (ICPS, King s College London) Table 6: Prison Brief for France 17 Prison population total (including pre-trial detainees / remand prisoners) Prison population rate (per 100,000 of national population) Pre-trial detainees/remand prisoners (percentage of prison population) Female prisoners (percentage of prison population) Juveniles/minors/young prisoners (percentage of prison population) 59,655 at in metropolitan France (national prison administration) 96 based on an estimated national population of million in metropolitan France at July 2008 (from INSEE figures) 27.7% ( ) 3.7% ( ) 1.1% ( under 18) Foreign prisoners 19.2% (percentage of prison population) ( ) Official capacity of prison system 47,672 ( capacité operationelle, metropolitan France) Number of establishments/institutions 185 (2002) Occupancy level (based on official capacity) 118.1% ( ) Table 7: World Pre-trial / Remand Imprisonment List Prison population according to legal status Total number in pre-trial / remand 16,399* imprisonment Date Percentage of total prison population 31.5% Estimated national population (at date shown) 61.16m at date shown Pre-trial / remand population rate (per ,000 of national population) * Excluding departments and territories in Africa, the Americas and Oceania. 17 International Centre for Prison Studies. London. Prison Brief for France. Available online at: 365

11 CHAPTER 10 Table 8: World Female Imprisonment List Female prison population (number of women 1,958 and girls in penal institutions, including pretrial detainees / remand prisoners) Date Female prisoners (percentage of the total 3.7% prison population) 2.3 Various sources compared Table 9 Date ICPS SPACE I Prison population total (including pre-trial detainees / remand prisoners) 52,060 59,655* 57,876 63,500 Prison density per 100 places % 114.8% 125.2% Number of pretrial detainees 16,399-18,451 17,548 Pre-trial detainees / remand prisoners (% of prison population) 31.5% 27.7% 31.9% 27.6% Prison population rate per 100,000 of national population 85 96* Pre-trial detention rate per 100,000 of national population European % 96 - sourcebook Eurostat , (average ) National statistics , ** 20,999 34% Data in italics represent own calculations; * at 1 July 2008; ** 1,568 of the total prison population have been supervised with electronic monitoring and 357 have been placed externally without accommodation, which makes a ratio of 118 per 100 places (the prison capacity on 1 July 2006 being 50,332; see Décarpes 2007, p. 321). 18 Aebi et al Décarpes 2007, in: Van Kalmthout et al. Foreigners in European Prisons, pp

12 FRANCE Table 10 Date ICPS SPACE I European sourceboo 3 k Pre-trial detention (numbers) between National Foreigner s s Pre-trial detention (percentage) between National Foreigner s s Origin of foreigners in pre-trial detention EUnational s from National s outside the EU Eurostat National statistics Table 11 Date Females in pre-trial detention (numbers) Females as a percentage of the total number of pre-trial detainees Juveniles in pre-trial detention (numbers) ICPS SPACE I European sourcebook Eurostat National statistics Juveniles as a percentage of the total number of pre-trial detainees 2.4 Explanation of the statistics The data from SPACE I, Survey 2006 and 2007, relate to the European territory of France (the Métropole) and the French overseas territories (Guadeloupe, Martinique, French Guiana and Reunion, known as DOM or Départements d Outre-mer); data from the World Pre-trial/Remand Imprisonment List (table 7) does not include the departments and territories in Africa, the Americas and Oceania. This immediately clarifies the different figures at the same recording date (see table 9). At 1 October 2007, the prison population amounted to 63,500. This is an increase compared to the figures from the Survey 2006, when the prison population was 57,876. The figures from the ICPS only cover metropolitan France. According to this source, the 367

13 CHAPTER 10 prison population is 59,655 at 1 July The World Pre-trial/Remand Imprisonment List show a pre-trial/remand imprisonment number of 16,399 at 1 September 2006 and subsequently a total prison population of 52,060. These figures from the ICPS do not include data from the French overseas territories and are thus somewhat lower than the figures presented by the penal statistics from the Council of Europe. To illustrate this, we can look at the data from the Survey 2006 (recording date 1 October 2006) and data from the World Pre-trial/Remand Imprisonment List (recording date 1 September 2006). The total number in pre-trial/remand imprisonment according to the latter source is (as mentioned) 16,399, while according to the Survey 2006, the number of prisoners not serving a final sentence is 18,444, including untried prisoners, convicted prisoners, but not yet sentenced, and sentenced prisoners who have appealed or who are within the statutory limit for doing so. The different categories that amount to the total number of prisoners who are not serving a final sentence cannot be separated in the penal statistics, Survey SPACE I also adds other cases to the number of persons who are not serving a final sentence and subsequently comes to the number of 18,451 (Survey 2006), which is 31.9% of the total prison population (see Table 4). Prison overcrowding is not a new phenomenon in France. It can be derived from Table 1 that because of a growing prison population and a slightly growing prison capacity, the density per 100 places in prison is on the increase in the years ; from to (see Table 1). Its prisons have been suffering from chronic overcrowding for many years. This is especially true for the short stay prisons, where there is no upper limit to the prison population as there is in the establishments for sentenced prisoners. 21 Two main causes are put forward by the Commissioner for Human Rights on his visit to France in 2006, namely an increase in the number of convictions and in the length of sentences, and a lack of funding to respond to this trend by building new prisons, not only in order to increase the number of places, but also to improve the quality of prison life 22. The most recent Memorandum of the present Commissioner for Human Rights again sheds light on the problem of overcrowding in French prisons and notes that notwithstanding the considerable efforts made to bring physical detention conditions in France in line with European standards, their positive impact has been significantly lessened by the chronic problem of prison overcrowding. 23 The 2008 Memorandum more or less subscribes the reasons for the growing prison population by mentioning that the reasons (...) lie primarily in the harsher sentences handed down by criminal courts and the increasing use of imprisonment. The Commissioner refers in this respect also to the change in criminal policy since From that moment on, policy with regard to crime has been modified by a series of laws putting emphasize on punitive aspects 24 (see paragraph 1). The problem of overcrowded prisons, with subsequently poorer conditions with regards to e.g. shortage of prison staff, especially concerns short-stay prisons: they 21 Commissioner for Human Rights 2006, 70. According to Décarpes (2007, p. 321) the overcrowding is only in pre-trial prisons (maison d arrêt; by the author), in which short prison sentences of less than one year are served, and of whom most are foreign prisoners. 22 Commissioner for Human Rights 2006, Commissioner for Human Rights 2008, p Ibidem, p

14 FRANCE have an average occupancy rate of 140% and in thirteen of them, the rate exceeds 200%. 25 Both the 2006 report and the 2008 Memorandum of the Commissioner of Human Rights address the aspect of separation of untried and sentenced prisoners, and accommodation in single cells for untried prisoners. Provision 717 paragraph 2 of the Code of Criminal Procedure states that Prisoners in remand prisons undergo individual imprisonment by day and night, and, in other prisons are subject to night isolation only, after spending an observation period in the cells. Exceptions to this rule may only be made for reasons due to the interior distribution of the detention premises, or their temporary overcrowding, or because of work organisation requirements. So prisoners in pre-trial detention have in first instance a right to an individual prison cell. There are thus exemptions possible to this rule. The French authorities aim to improving untried prisoners detention conditions, but according to the Commissioner there are practical aspects which are in the way. The Decree promulgated on 12 June 2008 within this respect, removes the legally enshrined right to a single cell and allows untried prisoners to apply for a transfer to another prison with a view to being assigned a single cell. Furthermore, the Degree rules that when there are no places available in the short-stay prison which accommodates the prisoner at a certain moment, the prison governor has two months to propose a transfer to another prison. This results in the Commissioner s conclusion that few prisoners are likely to make use of this requesting procedure because detention on remand lasts on average only 5.7 months in France. Coming back to the annual penal statistics from SPACE I, we can see that the percentage of juvenile prisoners lies on 1.0% of the whole prison population and that this is 3.8% for female prisoners. The number of foreign prisoners is 12,341, about 1/5 of the whole prison population. 3. Legal basis: scope and notion of pre-trial detention An important feature of the French criminal process is that, like in many jurisdictions, the categorisation of offences determines the procedure to be followed and the eventual court or trial. Art of the Code Pénal divides into three groups. These three classes are a) contraventions, which are minor offences punishable by a fine of up to 3.000,- (Art.521); b) délits, which are offences of greater importance ( middle-range offences ) subjected to custodial sentences up to five years or a fine of 3.750,- or above (Art.381), like theft, fraud and deception and less serious drug offences; and c) crimes, which are the most serious offences ( serious offences ), like murder, rape, armed robbery etc. An offender found guilty can be subject to custodial sentences following the crime, punishable by imprisonment from five to twenty years and life imprisonment. 26 In the case of contraventions, there is no instruction and the trial takes place in the police court (tribunal de police). Cases involving middle-range offences will usually be heard before the correctional court (tribunal correctionnel); an instruction is not mandatory. At last, serous 25 Ibidem. 26 Vogler 2008, pp

15 CHAPTER 10 offences will in principle be subject to the instruction procedure and tried before the assize court (cour d assises). 27 The different phases of the criminal process can be described as follows 28 : 1) the police investigation, 2) the judicial investigation, and 3) the trial. Within the first stage, one can distinguish different procedures or enquiries. The first one to be mentioned here is the preliminary stage with a generally non-coercive character, but the right to conduct identity checks brings about that a person can be detained for up to four hours if he/she fails to reveal the identity and if it is plausible that the person has, for instance, committed an offence or tried to commit an offence. Moreover, suspect may be detained in a police station for interrogation and investigation under the procedure of garde à vue for 24 hours when one or more plausible grounds to suspect exist (Art. 63). This period can be extended to a maximum of 48 hours on the authority of a prosecutor. 29 This enquiry/procedure is initiated by a senior police officer and supervised by a prosecutor who has the power to decide about the extension as well. 30 In exceptional cases, such as drugs and terrorism cases, this period can even be extended to 96 hours/four days. Since the 2000 reform, the requirements of reasonableness and proportionality play a vital role within the process of garde à vue. Also, since the 1993 reform, the suspect has a right to a consultation, meaning that he/she has the right to consult a legal advisor, who is however not allowed to be present at any interview during this process. 31 The second procedure within the phase of the police investigation is the flagrant offence enquiry, in which the powers of the police are more coercive than in the other type of procedure. The garde à vue is here possible with regard to suspects. Finally, there exists an enquiry under a rogatory commission. In this latter procedure, the police can use the garde à vue, but cannot remand a person in custody. During the second stage of criminal process in France, the judicial investigation, the liberty and custody judge can remand someone in custody (custodial remand/remand in custody/pre-trial detention 32 ; detention provisoire) if custody is the only way to preserving evidence, of avoiding interference with witnesses or with the course of justice, where a remand is necessary for the defendant s own protection or in the interests of public order. 33 Within the framework of this study, we will especially focus on the remand in custody. The final phase is the trial, which falls outside the scope of this work Ibidem. 28 We stick to the division which is made by Vogler 2008, pp and use the same terminology. 29 Vogler 2008, p Pakes 2008, p Vogler 2008, p. 198 and Pakes 2008, p. 61. According to Pakes Only since 1993 do suspects have the right to ( ) obtain legal advice, although with limitations it is only allowed after 24 hours of detention ( ). Vogler mentions that ( ) the right to a consultation can only be exercised at the outset of the garde à vue, again after expiration of 24 hours and after 12 hours of a prolongation. In addition, Vogler mentions that for allegations of terrorism and drug smuggling the time is increased to 72 hours; for cases concerning, inter alia, organised crime to 36 hours. 32 Are all terms which we found in the studied literature. 33 Vogler 2008, p Recent works on the French criminal procedure are Vogler 2008, Pakes 2008 (deals with criminal procedure in a comparative way) and Hodgson Marguery 2008 devotes one chapter (pp

16 FRANCE 3.1 Definition and primary objective of pre-trial detention One of the important general principles in the criminal process in France is the praesumptio innocentiae. The French law puts it in the words of provision 137 of Code of Criminal Procedure. Provision 137 states among others that the person under judicial examination, presumed innocent, remains at liberty. If the investigation so requires, or as a precautionary measure, he may be subjected to one or more obligations of judicial supervision. Only in exceptional cases, when for instance the obligations of judicial supervision do not suffice, he may be remanded in custody. 35 With this passage, we immediately have the primary objective of pre-trial detention, namely if the investigation so requires. In addition to the main objective in the law there are several other objectives that the pre-trial detention serves according to the French doctrine 36 which will be summed up in short. First, the danger of absconding that forms a threat to the public. Pre-trial detention can ensure that the accused will appear for trial and that he remains at the disposal of the judicial authorities. Secondly, the prevention of destruction of evidence, bringing pressure to bear on witnesses and impeding the establishment of the truth, can be effected by the way of pre-trial detention. Further, the detention can evade recidivism and it can make it possible, if needed, that the accused gets medical treatment. Besides these objectives, pre-trial detention may be protective to the accused himself. Lastly, by placing persons in pre-trial detention, the government shows its activeness regarding crime combat and the prevention of crime. The diverse legal grounds whereon, according to the law, the pre-trial detention must be based will be dealt with in the next part of the report under the grounds for detention and other prerequisites. The deprivation of liberty has to be seen as an exceptional intervention. So the order to place someone in detention has to be based on strict legal requirements. Provisions until are concerned with pre-trial detention. However, there is no provision with an explicit definition of pre-trial detention. Provision gives the cases in which pre-trial detention can be ordered, namely 1) the person under judicial examination risks incurring a sentence for a felony, and 2) the person under judicial examination risks incurring a sentence for a misdemeanour of at least three years' imprisonment. An excursion to the French literature provides on this subject a general definition of the pretrial detention in France: La détention provisoire est l incarcération d une personne mise en examen dans une maison d arrêt pendant tout ou partie de la période qui va du début de l instruction préparatoire jusqu au jugement définitif sur le fond de l affaire. 37 Investigating judges can order a detainee s release under judicial supervision or unconditionally at any time, whether in response to an appeal for provisional liberty or 95) in this dissertation (Groningen, Netherlands) to the organization of the prosecution service and its functions in the criminal process in France. 35 Legifrance Le service public de la diffusion de droit, online available at (last accessed 1 August 2009) provides for the English translation of the Code of Criminal Procedure, but points out that only the French versions of the texts published in the Official Journal have legal force and that the translations are provided for information purposes only. The translation is updated until a January For this chapter, we examined both the French and the English text. 36 Strickler , p Strickler, p

17 CHAPTER 10 on his/her own initiative. The legal definition and related provisions of judicial supervision can be found in the provisions 138 until 143 of the Code of Criminal Procedure. Judicial measures, which can be imposed on the basis of these legal provisions, can inter alia include house arrest, limiting movement to a particular geographic area, a prohibition on meeting certain people or going to certain places, the wearing of an electronic tracking bracelet, lodging a sum of money with the court as a guarantee, and the surrender of identification papers, including passport The competent authority and the length of pre-trial detention The competent authority is obligatory a juridical authority. The competence lies on the liberty and custody judge (juge des libertés et de la detention) according to provision 145 in relation to of the Code of Criminal Procedure. As a result of the 2000 reform, the examining magistrate must transfer the case to another judge, the liberty and custody judge, who is not linked with the enquiry. 39 The liberty and custody judge has the competence to order and extend pre-trial detention. Also, he is the authority to deal with release application. The transfer includes the dossier ( a comprehensive file of written evidence 40 ) and the grounds for the custodial remand. The defendant has the right to a short delay in order to prepare his defence and when he does not have a legal representative (yet) he will be informed of the right to choose a lawyer or to have one appointed to him. In the case of a short delay, which provides the defendant and his lawyer to prepare the case, the defendant will be remanded in temporary detention, without the right to appeal. 41 The question whether or not pre-trial detention should be imposed is thus answered by the liberty and custody judge, who must state the grounds for detention when he orders this. Moreover, the hearing has an adversarial character. Approximately nine out of the ten accused who appear before the liberty and custody judge are placed in pre-trial detention. 42 Regarding the length of the pre-trial detention according to the law, the classification of offences is of great importance. The departing point is to be found in provision which declares that pre-trial detention may not exceed a reasonable length of time regarding the seriousness of the charges brought against the person under judicial examination and the complexity of the investigations necessary for the discovery of the truth. If the grounds for pre-trial detention have ceased to exist, the investigating judge or the liberty and custody judge must order the immediate release of the person placed in pre-trial detention. In principle, the period of remand is four months up to a limit of one year in the case of middle-range offences. In the case of offences that are committed outside France or for listed offences, the period of remand is four months up to a limit of two years. For serious 38 Provision 138 of the Code of Criminal Procedure. 39 Vogler 2008, p Ibidem, p Ibidem, p Ministry of Justice of France, Commission de suivi de la détention provisoire; Rapport 2007, 2008, available on p

18 FRANCE offences, the period of remand will normally be for up to one year, with the possibility of extensions of six months. 43 The examining magistrate can always on his own initiative or on the request of the prosecutor release the detained person. Moreover, in the case that the defendant has not been interrogated by the examining magistrate for a period exceeding four months, that person may lodge a request for release directly to the Division of the Court of Appeal Procedural rights Rights concerning appeal, being informed of the reason for the arrest, requesting a medical examination, informing someone of the arrest, the support and presence of a defence counsel, and the contact with family members have to be respected according to universal principles 45 when residing in detention. The mentioned rights are all incorporated in the Code of Criminal Procedure in France. The several reforms brought about major achievements, such as the establishment of basic defence rights (see also paragraph 1). Because of the reform, the defendant plays a much more active role in his own defence. According to Vogler (2008), the most important rights in this context include the right to know the details of the accusation, the right to silence, the right to counsel, and the right to sufficient time to prepare a defence Grounds for detention With regard to the presumption of innocence and the grounds on which a person can be placed in custodial remand, Vogler puts it as follows: ( ) this presumption may be displaced by the circumstances set out in Art. 144, lines 1-3 which apply where custody is the only means of preserving evidence, of avoiding interference with witnesses or with the course of justice, where a remand is necessary for the defendant s own protection or in the interest of the public order. 47 Placing a person in pre-trial detention requires one or more legal motives which can be found in provision 144 of the Code of Criminal Procedure. Pre-trial detention has to be seen as an ultimate remedy and may only be ordered if one of these grounds can be argued. According to the case law of the European Court of Human Rights concerning pretrial detention in France, the adduced grounds by France justifying the pre-trial detention before the Court are the protection of public order from serious disturbance regarding the seriousness of the offence, remaining of the accused at the disposal of the judicial authorities, the danger of absconding and the risk of pressure being brought to bear on 43 Vogler 2008, p See for more information concerning the length of pre-trial detention, paragraph Ibidem, p See ICCPR and ECRM. 46 Vogler 2008, p Vogler 2008, p. 209: the concept public order is said to be famous for its vagueness and has been (mis)used often as a ground to remand a person in custody. 373

19 CHAPTER 10 the witnesses 48. The Court has ruled in the Letellier case that danger of absconding cannot be gauged solely on the basis of the severity of the sentence risked. The ground of preservation of public order can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that release of the accused would actually disturb public order. In addition, detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to anticipate a custodial sentence Review of pre-trial detention The review of pre-trial detention is prescribed in the French criminal process in the sense that a detained person has the right to, at any time, put forward a request to reconsider his custody (Art. 148 CCP). Moreover, he has the right to appeal against the remand order. Since 1993, it is also possible to apply for immediate release within one day of any order for custody. 50 Provision 187 gives the possibility of référé-liberté, which permits the person under investigation or the public prosecutor to appeal the order of placement in pre-trial detention within one day of the order for custody to ask the president of the investigation chamber or his substitute to examine directly his appeal without a hearing before the investigation chamber. If the president of the investigation chamber estimates that the requisites of provision 144 are not fulfilled, he will inform the liberty and custody judge about his decision. As a consequence, the accused will be set in freedom. Moreover, the defence may appeal, among other things, against orders relating to custody 51. Also, he may appeal against orders refusing defence requests. In the case of expert evidence, the defendant can also ask for a second opinion. The Chambre de l Instruction may sustain or nullify the decision of the examining magistrate. Important to mention in this respect, is that this Chambre de l Instruction has, inter alia, the power to order that another person can be charged and/or remanded in custody. 6. Length of pre-trial detention In the year , the notion of reasonable length of time appeared in the French Code of Criminal Procedure under the influence of the ECtHR (art. 5 paragraph 3). Provision creates for this occasion that Pre-trial detention may not exceed a reasonable length of time in respect of the seriousness of the charges brought against the person under judicial examination and of the complexity of the investigation necessary for the 48 See ECtHR Letellier v. France, Appl.no /86, 26 June Ibidem, Vogler 2008, p. 210 on the appeal procedure. 51 An order imposing judicial supervision/bail is also subject to appeal (Art. 139 and 186 CCP); bail may be given to a person facing imprisonment. When the bail conditions are breached, remand in custody can be the result (Art CCP). 52 Law number of 30 December. 374

20 FRANCE discovery of the truth. If these conditions are not fulfilled, the investigating judge or liberty and custody judge has to set the person free. 6.1 Legal provisions In case of serious crimes, the pre-trial detention is limited by a maximum of time, but the period of custody can be extended. An extension of six months can be affected and has to meet the requirement of reasonable length of time. The extension of six months has to be preceded by a hearing before the investigating chamber. This can be done every six months, but there are also limits. Two situations can be distinguished in the case of serious offences: 1) if the applicable sentence is less than twenty years imprisonment and the serious offence is committed in France, the pre-trial detention may not exceed two years, and b) in all other cases, pre-trial detention may not exceed three years. These time limits are extended to three and four years respectively where one of the elements of the offence has been committed outside the national territory. The time limit is also four years where the person is being prosecuted for one or more serious offences mentioned in Books II and IV of the Criminal Code, or for drug trafficking, terrorism, living off immoral earnings, extortion of money or for a crime committed by an organised organisation. 53 In the case of middle-range offences, pre-trial detention may not exceed four months if the person under judicial examination has not previously been sentenced, in respect of a serious offence or a middle-range offence, to an unsuspended prison sentence of at least a year, and when he is at risk of a sentence of five years or less. The liberty and custody judge may decide to extend the pre-trial detention for a period not in excess of four months in a reasoned decision and after a hearing. The total duration of the detention may not exceed a year. This time limit is extended to two years where one of the elements of the offence has been committed outside the national territory, or where the person is being prosecuted for drug trafficking, terrorism, criminal conspiracy, living off immoral earnings, extortion of money or for a crime committed by an organised organisation and which carries a sentence of ten years imprisonment. 54 In 2005, the average length of pre-trial detention was 8.7 months; while this was 5.3 months in In the memorandum of the Commissioner for Human Rights following his visit to France from 21 to 23 May 2008, it is mentioned that detention on remand lasts 5.7 months on average, which information is derived from a 2007 report from the National Monitoring Committee for Detention on Remand Case law of the ECtHR Several cases against France are raised before the ECtHR. The requisite that the length of pre-trial be limited is closely linked to the preasumptio innocentiae. There is a danger that 53 Provision of the Code of Criminal Procedure. 54 Provision of the Code of Criminal Procedure. 55 Ministry of Justice of France, Commission de suivi de la détention provisiore; Rapport 2007, 2008, available on p Commissioner for Human Rights 2008, p

21 CHAPTER 10 pre-trial detention will be misused; its continuation cannot be used to anticipate a custodial sentence as the Court stated in paragraph 91 of the Tomasi v. France case. Regarding the reasonable time, the Court holds: ( ) that it is not feasible to translate this concept into fixed number of days, weeks, months or years, or into various periods depending on the seriousness of the offence 57. The Court has to evaluate the length of pre-trial detention and does this on the basis of its criteria: The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but after a certain lapse of time, it no longer suffices; the Court must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are relevant and sufficient, the Court must also ascertain whether the competent national authorities displayed special diligence in the conduct of the proceedings. 58 The Court examines the grounds 59 whether they suffice to justify the pre-trial detention. Many criteria are elaborated in cases against France. In the greater part of the cases the Court concluded a violation of art. 5 paragraph 3 of the ECHR. The following figure 60 provides an overview of cases. Case Date Length of custodial remand in the relevant case Judgment: violation or not? Letellier v. France 26 June years and 9 months Violation Kemmache v. France 27 November years, 10 months Violation and 10 days Tomasi v. France 27 August years and 7 months Violation Quinn v. France 22 March year No violation Muller v. France 17 March 1997 Almost 4 years Violation IA v. France 23 September years and 9 months Violation Debboub alias 9 November years, 2 months and Violation Hussaini Ali v. France 10 days PB v. France 1 August years, 8 months and Violation 3 days Richet v. France 13 February years, 8 months and Violation 14 days Bouchet v. France 20 March year, 5 months and No violation 17 days Zannouti v. France 31 July years, 5 months and 23 days Violation 57 This is the case when pre-trial detention has lasted a long time. Strong reasons are demanded in these cases; PB v. France, 30, 36 and Richet v. France, See Letellier v. France, 35; Tomasi v. France, 84; and Kemmache v. France, Whether a danger of absconding persisted; whether there was a risk of pressure being brought to bear on witnesses or of evidence being tampered with in other ways; whether there was a risk of repetition of the offence; and whether the continued detention could be justified for the preservation of public order on relevant and sufficient reasons, in Trechsel 2006, p Trechsel 2006, p

22 FRANCE The former Commissioner for Human Rights, Mr. Alvaro Gil-Robles, raised the slowness of the French courts in which they operate because of its excessive caseload 61, as a cause of the lengthy pre-trial detention in France. Human Rights Watch also mentions this problem and gives recommendations to solve this or to improve the situation. It emphasizes the need for a clear determination of the functions of the liberty and custody judge to improve the efficiency of the criminal procedural system. 7 Other relevant aspects 7.1 Relation between pre-trial detention and the outcome of the trial In 2005, there were 535 acquittals and discharges of prosecution. Besides that, there were 78 discontinuances of cases 62. The account of condemnations that were preceded by a pre-trial detention in 2005 was 35,309 of the total of 623,005 condemnations. 63 This means that 5.7% of all condemnations were preceded by pre-trial detention. There were 3,236 condemnations for serious offences whereof in 2,512 cases pre-trial detention had been imposed. 64 That makes a percentage of 77.6%. For middle-range offences there were 550,841 condemnations and in 32,784 cases the condemnation was preceded by pre-trial detention; a percentage of 6.0%. 65 The position of the accused after the pre-trial detention can be distinguished into two groups, namely justified and unjustified detention. Regarding the first group, where the accused has undergone a justified pre-trial detention, the first paragraph of provision of the Code of Criminal Procedure states that Where pre-trial detention has been served at any stage of the proceedings, this detention is deduced entirely from the duration of the sentence imposed or, if necessary, from the total length of the sentence to be served after concurrence of penalties. But when the accused had been in unjustified pre-trial detention in cases of acquittal or discharge decisions and discontinuances, there is a possibility to claim damages according to provision 149 and onwards of the Code of Criminal Procedure. The claim is lodged before the first president (premier président) of the appellate court, whose decision can be challenged before a section of the Cour de cassation, the National Commission for the Compensation of Detention. 7.2 Alternatives to pre-trial detention The point of departure when it comes to judicial examination (Art. 137 CCP) is that the person presumed innocent, remains at liberty. He may, however, be subjected to one or more obligations of judicial supervision (bail 66 ; contrôle judiciare). If this is not sufficient (to 61 Commissioner for Human Rights 2006, p French Ministry of Justice, l Administration pénitentiare en chiffres au 1er janvier 2007, available on: p Ibidem, p Ibidem. 65 Ibidem. 66 Vogler 2008, p

23 CHAPTER 10 e.g. make sure that the person is present at court hearings), he may in exceptional cases, be remanded in custody. If the person under judicial examination intentionally evades the obligations of the judicial supervision, the investigating judge may issue an arrest warrant or a summons against him, but he may also refer the case to the liberty and custody judge with the intention to remand the person in custody (Art CCP). The obligations (seventeen in total) of the judicial supervision can among others be: not leaving the territorial boundaries, not leaving his domicile or residence, not going to certain places, appearing periodically before the services. The investigating judge may at any time impose upon the person under judicial examination one or more new obligations, cancel all or part of the obligations, amend one or more of these obligations or grant an occasional or temporary exemption from complying with specific obligations (Art. 139 CCP). One could say that judicial supervision/bail is not a real alternative to the custodial remand, because the latter is deprivation of liberty and thus a more intrusive measure. In the case of bail, the legal provisions state that custodial remand can follow if the person does not comply with the obligations under the judicial supervision/bail conditions (see Art CCP). 7.3 Execution of pre-trial detention Place of execution of pre-trial detention Persons under judicial examination and defendants subjected to pre-trial detention serve it in a remand prison (Art. 714 CCP). There are special remand centres (maisons d arrêt). They are also in charge of minor offenders with short sentences (under 12 months). With regard to provision 716 of the Code of Criminal Procedure, it can be said that persons under judicial examination, defendants and accused subjected to pre-trial detention are generally placed under individual imprisonment. Due to the overcrowding in especially short-stay prisons (see paragraph 2), this starting point is most likely not feasible Judgment of the former Commissioner of Human Rights In his general comments he points out the discrepancy between law and practise 67 when speaking about the protection of human rights in France. In relation to the working conditions in courts he puts forward the slowness of the courts, the excessive caseload and the under-funding of the courts. These efficiency problems lead directly to longer durations of pre-trial detention 68. Regarding the rights of the accused 69 and the role of the counsel he mentions the right of the accused to be informed of his/her rights, to be told the nature of the crime which is being investigated, to be examined by a doctor and to inform family about the detention. These rules meet the European human rights standards and France respects them fully. In many cases, however, lawyers cannot fully exercise their profession because of limited visits to their client and having no access to 67 Commissioner for Human Rights 2008, Ibidem, Provisions 63-1 until 63-4 and 77 of the Code of Criminal Procedure. 378