Police Custody and Search Procedures

Extract

[...] In default, the person detained in degrading conditions may bring a claim for damages.' of the State in order to obtain reparation for the resulting damage. This decision is justified in that the Constitutional Council is based on a constitutional principle, that of the preservation of human dignity. It is guaranteed by the block of constitutionality and, in particular, by the preamble to the 1946 Constitution. The 9 members of the Council add that the legislator has provided guarantees, which ensures a certain legal security, in particular in this period where the principle of the presumption of innocence prevails. [...]

[...] The procedure is tainted. The desire to search the residence of the magistrate in charge of the case Facts: In the context of the investigation, the judicial police officers wish to search the residence of a magistrate related to the case. Major: Article 56-5, paragraph 1 of the Code of Criminal Procedure provides, inter alia, that ""Searches in the premises of a jurisdiction or in the home of a person exercising judicial functions and aimed at seizing documents that may be covered by the deliberative secrecy can only be carried out by a magistrate, on a written and motivated decision of this one, in the presence of the president of the court of appeal or the president of the Court of Cassation or his delegate. [...]

[...] Major: Article 100 of the Code of Criminal Procedure deals with the concept of intercepting communications. It sets certain conditions, including the presence of a minimum sentence incurred. Furthermore, it emerges from a judgment rendered by the criminal chamber of the Court of Cassation on May that \"the rule of free communication between the person under investigation and their lawyer, which prohibits the interception of correspondence or telephone communications exchanged between them ( . (No. 93-81-522)" It emerges from constant jurisprudence and notably from the criminal chamber of the Court of Cassation that public authorities, judicial police or investigating judges clearly apply the principle of loyalty of the evidence. [...]

[...] This is a right derived from the law. In addition, he refused to give the investigators the access codes to his phone, which would allow them to access the information it contains. Thus, whether his lawyer is present or not, he has used his right not to incriminate himself. Conclusion: The person in question's request regarding their right to remain silent and not incriminate themselves during their detention can be satisfied. IV- The irregularities of the procedure These irregularities relate to the wiretaps and procedures of the investigating officers around the lawyer of the person in question but also to the desire to search the home of the magistrate Obtaining evidence around the lawyer Facts: The investigators set up a telephone tapping device targeting the lawyer's line of the person in question. [...]

[...] This decision should be applicable to all coercive measures since the respect of dignity is applicable to the entire penal procedure. However, in practice, these measures are difficult to apply (costly renovation of the police real estate, self-degradation by detainees of their dignity, relative transparency of the judicial authorities). Exercise Practical Case Resolution Case Number 1 A person was placed in custody for 'association of wrongdoers with a view to preparing acts of terrorism' and was notified of their rights. The same day, their home was searched. The person in custody requested that their lawyer be present on the premises. [...]