France - 
Article published the Friday 15 April 2011 - Latest update : Friday 15 April 2011

France reforms controversial custody laws

French policemen questioning a suspect in custody.
AFP

By Sarah Elzas

Starting this weekend, anyone taken into custody by French police will have a right to have a lawyer present during questioning. This was not always the case: parliament passed a law reforming France's garde à vue custody procedure, which allows police to detain people for up to 96 hours for questioning, even before pressing charges.

The reforms were supposed to be implemented in June. But a French court ruled on Friday that they had to be applied right away.

The European Court of Human Rights condemned garde à vue last year, in an appeals case in which a defendant had not been informed of his right to silence.

The French parliament passed a reform of the procedure earlier this year, which will go into effect this weekend.

Now, someone taken into police custody has to be informed of their right not to say anything. And they have the right to a lawyer during all interrogations.

Previously, lawyers were allowed in the first 30 minutes only, and could not meet with their clients until 48 or 96 hours later, delaying their ability to build a proper defence.

Lawyers will be allowed to attend all police interviews, and even ask questions themselves.

Many defence attorneys welcome the reforms as a step towards individual liberties – though some say it does not go far enough. Some say the reforms will put a strain on public defenders. Some lawyers have already signed up to volunteer this weekend.

Police have complained it would add to their workload. There are likely to be protest events throughout the weekend.

 

Aurelien Hamelle, a criminal defense attorney in Paris, welcomes the reforms

"For the first time, the right to defend oneself and the right not to incriminate oneself will actually be effective in the police office, and for France this is a revolution. France will finally have joined the advanced groups of nations in respect of individual freedoms in the police office.

"It’s really a shame that the police have not supported this reform, because if you look at how criminal trials take place today in France, there is not one single case where the defense attorney is not going to criticize the way in which an admission was given in garde à vue, the way in which an interview was conducted in garde à vue, for the simple fact that nobody was there to verify that all the essential guarantees are enforced. Now that attorneys will be attending the garde à vue, you will get rid of all these arguments in court, so it really is a chance for the police finally to have work which will no longer be criticized in court.

"One of the drawbacks in this reform is that clearly you’ll have a two-tier system where those who can afford a proper defense will have an attorney by their side during all the garde à vue, and others who cannot and who have to rely on the public defense system, maybe they will not enjoy such a full-blown defense. But I hope in fact that things will evolve. And as far as I’m concerned, I registered with a list of volunteers for the weekend with the Paris bar, to attend garde à vue, and I know a lot of attorneys in Paris have done that. There is a lot of good faith and attorneys are really happy to be finally involved in garde à vue, so I’m sure we’ll put a lot of effort into that, and we will not only be looking at the budget."

 

tags: France - Law - Police
Comments (3)

A reform good for a free society

Defense lawyers play a vital role in ensuring that when the vast power of the state is brought to bear against an individual, constitutional guarantees and procedural fair play are respected. In doing so they ensure that the state's exercise of authority maintains its legitimacy.

French police and prosecutors alike should welcome and respect this reform.

Police Interrogation and Lawyers in the United States

I am an attorney in New York City specializing in appeals. I have had extensive criminal trial experience as well, and I also teach American constitutional law and criminal procedure. Your readers may be interested in the process in the United States.

Beginning with a decision of the United States Supreme Court in 1966 (Miranda v. Arizona) before subjecting a person to custodial interrogation the police must inform the individual that he has the right to remain silent, that anything he does say will be used against him in court, that he has the right to the presence of an attorney during the interrogation, and if he cannot afford an attorney one will be provided for him. If the individual says he wants an attorney all interrogation must stop until an attorney is present.

Under the American system, therefore, the financial circumstances of the individual do not play a role in his right to stop the interrogation by requesting an attorney. Because as a practical matter there is usually no mechanism for the police to bring a lawyer to the interrogation, the individual's request for counsel will end the interrogation.

Since 1966 the American courts have addressed innumerable situations in which they have had to decide whether Miranda applies. For example, can the police forego the "Miranda warnings" in an emergency? What if the individual initially requests an attorney but later says he will speak to the police without a lawyer being present?

In the year 2000 the Supreme Court was asked to overrule the Miranda case, but the Court declined to do so. The basic precepts of the case--a person facing the pressure of a police interrogation must first be told of his right to remain silent and his right to counsel--remain intact.

It's About Time

I honestly did not realize that France has been so backwards as to not offer legal counsel prior to questioning.

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