Establishing a genuine right to a lawyer for persons held in garde à vue - International Law Office

Introduction
Challenges to garde à vue procedure
Debate over draft law
Practical consequences of being placed in garde à vue
Practical tips

Introduction

France is in the midst of a debate over a proposed law reforming its garde à vue (preliminary police custody) procedure. However, even though the current system is heavily criticised, it appears that only modest reform is likely.

According to French law, police officers may place a person in garde à vue if they have one or more plausible reasons to suspect that the person has committed or attempted to commit an offence. Once a suspect is placed in garde à vue, the standard legal procedure allows for consultation with a lawyer for 30 minutes at the beginning of the detention and a second consultation 24 hours later if the garde à vue is extended. The lawyer cannot access the police file concerning the suspect and may not attend police interviews. Suspects are not informed of their right to remain silent when notified of their rights at the beginning of the garde à vue.

This procedure is being revised following criticism from the Constitutional Council, the Supreme Court and, at European level, the European Court of Human Rights (ECHR). Recent decisions from these bodies have declared the garde à vue system to be unconstitutional and contrary to Article 6 of the European Convention on Human Rights.

The Constitutional Council told the French government that it had until July 1 2011 to find a solution to this issue. The government subsequently announced a draft law on the garde à vue procedure, which was approved by the National Assembly on January 25 2011.

Challenges to garde à vue procedure

Numerous decisions have criticised the current garde à vue procedure.

On July 30 2010 the Constitutional Council reviewed its constitutionality and found that the procedure did not sufficiently protect the presumption of innocence or the rights of defence. The council held that the procedure lacked these necessary guarantees, particularly due to the fact that suspects do not benefit from "actual assistance from a lawyer" and are not informed of their "right to remain silent". In the same decision the council delayed the effective date of its decision to July 1 2011.

At EU level, in Brusco v France(1) the ECHR ruled that a person placed in garde à vue should be informed of his or her right to remain silent and should have access to legal counsel, both before the first interview and during all interviews. This decision was handed down in the wake of two judgments issued in cases brought against Turkey – and therefore indirectly applicable to France – which confirmed the requirement for actual assistance from a lawyer during detention. In Salduz v Turkey(2) the ECHR held that "the accused must be allowed to benefit from the assistance of a lawyer from the very first stages of police interrogation". Subsequently, in Dayanan v Turkey(3) the court held that "in general, criminal proceedings can only be fair if the suspect has had the opportunity to consult a lawyer from the time at which he was placed into garde à vue or temporary custody".

Finally, the French Supreme Court echoed the ECHR in three decisions handed down on October 19 2010.(4) In the first decision the court held that suspects should be informed of their right to remain silent and should be entitled to consult a lawyer from the start of the garde à vue process, unless they decline those rights. In the second it ruled that suspects should be assisted by a lawyer during all interviews, and not just at the beginning of the garde à vue process and when it is extended.

The Supreme Court also stated that in the interest of legal certainty and the proper administration of justice, the rules arising from these cases should be applied only as from July 1 2011, in accordance with the decision of the Constitutional Council.

Debate over draft law

The Justice Ministry prepared an initial draft law in September 2010. This draft was rewritten several times to take into account decisions issued by the ECHR and the Supreme Court. A new draft law, due to enter force into by July 1 2011 at the latest, is currently under debate and was approved by the National Assembly on January 25 2011. It must now be examined by the Senate.

According to the draft approved by the National Assembly, the main changes to the procedure are as follows:

• No person may be convicted on the sole basis of statements made without consulting or receiving assistance from a lawyer.
• Persons placed in garde à vue must be immediately informed of their right, when being interviewed and after stating their identity, to make statements, to answer questions or to remain silent.
• On request, lawyers assisting a suspect may consult the report recording that their client was placed in garde à vue, the medical certificate (if applicable) and transcripts of interviews with their client. They may not make copies.
• Suspects may request that their lawyer be present during interviews. In this case the lawyer is given two hours to arrive at the police station before the first interview may commence.
• The public prosecutor may issue a written authorisation to the police to defer legal assistance to suspects for no more than 12 hours when this appears to be "essential for pressing reasons arising from the specific circumstances of the investigation, either to allow urgent investigations to collect or preserve evidence or to prevent an imminent harm to other persons".
• If a person is placed in garde à vue for a crime (the most serious category of offence) or a délit (an intermediate category of offence) punishable by a prison sentence of five years or more, legal assistance may be deferred until the 24th hour by a reasoned decision in writing issued by the judge for warrants and custody matters at the request of the public prosecutor.
• Lawyers may ask questions only at the end of each interview. The police officer conducting the interview may oppose any questions that would hinder the investigation or infringe on personal dignity.
• If the police officer considers the lawyer to be severely disrupting the interview or causing confrontation between witnesses, he or she may inform the public prosecutor.
• When the suspect is held for offences mentioned in Article 706-73 of the Criminal Procedure Code (eg, money laundering, aggravated extortion or criminal conspiracy), legal assistance may be deferred for a maximum of 48 hours. This period may be extended to 72 hours in cases of drug trafficking and terrorism.

Practical consequences of being placed in garde à vue

The law passed by the National Assembly meets certain EU and constitutional requirements. It stipulates that suspects must be informed of their right to remain silent, and that they are entitled to the assistance of legal counsel during police questioning. However, in a reflection of the intense conflict between the police and lawyers, the legislature has opted for minimal reform. Although persons placed in garde à vue will, in principle, be entitled to the assistance of a lawyer, the new rules require lawyers to remain silent throughout questioning. They may ask questions only at the end of the interview.

Given that exceptions remain to allow the right to legal assistance to be deferred where it is "essential for pressing reasons arising from the specific circumstances of the investigation, either to allow urgent investigations to collect or preserve evidence or to prevent an imminent harm to other persons", the actual presence of lawyers in the first part of the garde à vue process is likely to be rather arbitrary. As a result, particularly in economic and financial matters, the suspect placed in garde à vue is likely to be deprived of legal counsel for at least 12 or 24 hours.

As it stands, it seems likely that the approved draft law will have to be revised to meet constitutional and EU requirements.

The current situation raises issues for gardes à vue conducted at present. Before the new procedure for garde à vue comes into effect on July 1 2011, what kind of credence can be awarded to statements by a suspect in custody when those statements were recorded without the suspect having had the benefit of counsel? This seems to be the question to which the Supreme Court responded to in its ruling of January 4 2011,(5) holding that given the lack of legal assistance during the garde à vue, the information gathered during custody cannot necessarily be used as evidence, even though it cannot be legally invalidated.

This solution demonstrates the vacillating situation that currently prevails in the garde à vue procedure.

Practical tips

In these circumstances, remaining silent would seem to be the most prudent course of action – at least until July 1 2011. In addition, when called to meet a client at the beginning of the garde à vue, lawyers should always leave in the police file a brief stating that they were not entitled to assist their client effectively, in violation of both the Constitution and the European Convention on Human Rights. Both are reasons why the garde à vue should be nullified.

For further information on this topic please contact Denis Chemla, Erwan Poisson or Jonathan Mattout at Herbert Smith by telephone (+33 1 53 57 70 70), fax (+33 1 53 57 70 80) or email (denis.chemla@herbertsmith.com, erwan.poisson@herbertsmith.com or jonathan.mattout@herbertsmith.com).