---

Detained by the French Police (the "garde à vue") -  your rights

(Abbreviated lexicon of French criminal law and procedure) 

Outline of this Article:

I - Who may be detained (placed under "garde à vue" or "GAV")?

II - What are the rights of a person placed under a GAV?

III - Duration of a GAV

IV - Who decides on the next phase after the GAV?

Good alternate source material in French

I - Who may be detained (placed under "garde à vue" or "GAV")?

A French "Judicial Police" officer has the right to place a person un GAV if he has reasonable cause to believe that such person has committed or is attempting to commit a legal  infraction (art 63 CCP). Inversely, in the absence of such reasonable cause

In France the regular police et the gendarmes both exercise the powers of the "Officers of the Judicial Police" (Officiers de la Police judiciaire) (French acronym: "OPJ"). The OPJ  are authorized to hand cuff and to question the person and to exercise certain other prerogatives if there exist facts supporting the above-mentioned reasonable cause.. 

Inversely, in the absence of such reasonable cause, hand-cuffs and placing a person under GAV is in principal not permitted. 

In other words, it is possible that the OPJ can detain a person who is a potential "witness" to be questioned without such person being handcuffed or placing under a GAV.

Once the OPJ places a person under a GAV, the office of the 

 

 must be so informed in order for there to be a determination as to the renewal of the period of detention under a GAV. (See: Duration of a GAV)

II - What are the rights of a person placed under a GAV? 

Only in the year 2000 has French legislation been adopted conferring on a person the right to refuse to answer questions of the police. Generally referred to in French as the "droit au silence" or the "droit de se taire" (Law of 15 June 2000)

Accordingly, a person placed under a GAV has the legal right to remain silent.

However, in the real French world, this right is seldom exercised and the exercise thereof tends to be systematically used against the person under the GAV, as this new right has been well integrated into the mentality of French judicial proceedings and the police. Innocent persons rarely remain silent and silence can all too often be interpreted by both the police and magistrate (a judge of a court of primary jurisdiction) as an act intended to hide the truth. 

If one has nothing to hide, it is best to provide a reasonable explanation. 

When a person is questioned, the OPJ will record the declarations in a typed written document called in French a "Procès-Verbal" or French acronym "PV". Once the PV is typed, the person under a GAV will be asked to read the PV and, if it correctly reflects his declarations, to sign the PV. If the person refuses to sign the PV, that refusal will be noted. Thus, it is important to insist that the PV correctly reflect the detained person's declaration before it is signed.

Advising a person of his rights: 

A translator is clearly necessary for a person who neither speaks or reads French. The OPJ has a duty to provide a translator if the person does not read and speak French prior to establishing the PV.

In addition, prior to asking the questions of the person under a GAV, the OPJ (or a police officer holding a valid delegation of authority) has a duty to do the following: 

1. be advise of the violation of law of which he is believed to had committed, 

2. be advise of the initial term of the GAV (See: Duration of a GAV), 

3. be informed of his right to remain silent, 

4. be informed of his right to telephone to a member of his family to inform a family member that he has been placed under a GAV. (There are exceptions to the right to contact members of the family if there are grounds to believe that the person a GAV might communicate with co-conspirators. This exception usually arises in matters involving drug dealings, terrorisms and armed robbery. In such instances, the OPJ are required to so inform the office of the Prosecutor (Procureur) 

5. the right to be examined by a doctor chosen by the OPJ or the Prosecutor (Procureur). (Inside Paris, such examination would be effected at the Hôtel Dieu, located near the metro station Cité. If the GAV is extended beyond its initial term, there is a right to be examined a second time by a doctor. The doctor will establish a medical report on the individual's health and state whether the persons health is compatible with being placed under a GAV. In certain instances, the medical examination is obligatory, as in matters involving drugs.)

6. be advise of the right to meet with French lawyer of his choice or, in the absence of such choice, to meet with a lawyer designated by the President of the Bar Counsel (Bâtonnier de l'Ordre des Avocats).

(Such meeting with the lawyer is limited to not more than 30 minutes. Anything said is naturally confidential and the lawyer is not permitted to convey information to third parties. Accordingly, the lawyer may not inform family members of the GAV, However, the lawyer can cause to be included in the police dossier certain observations. For example,  observations sont liées aux conditions de l'interpellation, à l'absence de collation…, à l'impossibilité de prévenir un membre de sa famille.)

The right to meet a lawyer be delayed in matters involving organized crime, organized prostitution rings, kid napping, etc. 

III - Duration of a GAV

The current legislation relating to the length of the initial GAV and the renewal thereof will probably shortly be revised to give the police more time. As present, the GAV is in principal for 24 hours or such shorter time as may be practicable. But the Procureur has the power to extend the initial period for and additional 24 hours, if it is deemed necessary for the purpose of the investigations..

In certain serious matters, such as investigations involving drug dealings, terrorisms and armed robbery, the GAV may be extend to a maximum of 96 hours, including the initial 24 hours.

IV - Who decides on the next phase after the GAV?  

It is the Procureur or in certain instances the Investigatory Judge who decides:

- to release the person from the GAV (with or without a Court hearing and with or without a duty to meet again with a judicial investigator), or 

- cause the person to appear before a court of summary jurisdictions (Tribunal correctionnel), often forthwith in case of clear violations of the law, or to appear before a an Investigatory Judge (juge d'instruction) for an in depth investigation where the alleged offence is important as in maters involving the commission of a crime.

Since the reform in the year 2000, the Investigatory Judge (juge d'instruction) no long has the right to both investigate the matter and to cause the person to be incarcerated. Such latter decision is now the responsibility of the "Judge of Liberty and of Incarceration" (Juge des libertés et de la détention (J.L.D.)). 

Throughout the above-mentioned steps, the person has a right to the services of an interpreter, if he/she is not sufficiently fluent in French. 

NB : The police stations do not have a specific budget to feed persons under a GAV. Thus, if one has money, it is appropriate to let some of one own pocket money be used to purchase something to eat. If the person is destitute, some food will be provided. 

Although the cells where a person held under a GAV have improved over time, they are ofter far from comfortable and persons have been know to have been rendered somewhat exhausted though loss of sleep in part due to the conditions. The police too often work under material conditions which leave much to be desired.

---