Court of Cassation Ruling on Flagrancy Investigation

Extract

[...] The Supreme Court judges estimated that these acts fall within the scope of the preliminary investigation. This position is not new. In fact, it appears from a ruling made by the same chamber on 9 November 2010 that ' A preliminary investigation can be opened ex officio by judicial police officers as soon as they are informed of the possible existence of an offense by an anonymous tip, if it is not retained as the sole means of proof ». [...]

[...] The correctional court made a ruling on January 31, 2023: it found the nullity of the drawn up process-verbal and acquitted the two defendants. The Public Prosecutor appealed this decision. The Dijon Court of Appeal made a ruling on December It invalidated the procedure by finding that there was neither a formally opened preliminary investigation nor sufficient evidence to justify a flagrancy action. Consequently, it annulled the arrest warrant and acquitted the two defendants. A cassation appeal was then filed by the Attorney General: he criticizes the Court of Appeal for having acquitted the two defendants. [...]

[...] Previously, the judges of the Court of Appeal had considered that this decision to open a preliminary investigation, in the absence of mention in the proceedings or in the minutes, could not be presumed. Consequently, the supreme judges also demonstrated their willingness to extend the scope of the preliminary investigation in the context of the specific facts submitted to them. However, the position adopted by the Court of Cassation appears to be dangerous and repressive. In fact, the role of the minutes is to record the entire procedure, the facts, the hearings, and the framework of the investigation. [...]

[...] Whatever the case, the solution delivered by the Supreme Court is much more repressive than that of the Court of Appeal. They have shown great flexibility. This flexibility and integrative interpretation may be justified from a political point of view. Indeed, for several years, war has been declared against drug trafficking, which is becoming increasingly numerous (Law No. 96-392 of May on the fight against money laundering and drug trafficking or the recent proposal of law aiming to get France out of the trap of narco-trafficking by Messrs. [...]

[...] Moreover, the contours of the notion of criminal investigation and more precisely the articulation between the preliminary investigation and the flagrancy investigation have been specified by the criminal chamber of the court of cassation in a cassation judgment of November 26, 2024. In this case, an anonymous denunciation targeting a man who would engage in drug trafficking reached the police station. The police then proceeded to verify the identity before going to the home targeted by the denunciation. They were accompanied by a dog specialized in searching for drugs. The said dog stopped in front of the door to the apartment for a prolonged period. [...]