Sofiane, a high school student, was placed in police custody for not respecting the minute of silence organized by his school. His mother wonders what risks he faces, what will happen, and what his rights are.

What is police custody?

Police custody is a coercive measure decided by a judicial police officer, either on their own initiative or on the instruction of the public prosecutor, against a person for whom there are one or more reasons to suspect that they have committed or attempted to commit a crime or offense punishable by imprisonment.

It is distinct from a voluntary interview.

Police custody must be the only means to achieve one of the following objectives:

• Continue an investigation by ensuring the presence of the suspected person;
• Guarantee the presentation of the person before a magistrate;
• Prevent the destruction of evidence;
• Prevent collusion, that is, not allowing the person in custody to come to an agreement with their accomplices;
• Prevent any pressure on witnesses or victims;
• Ensure the cessation of the ongoing offense.

How long does police custody last?

From the beginning, the Judicial Police Officer (OPJ) must inform the public prosecutor of the placement in custody.

The duration of standard police custody cannot exceed 24 hours. Police custody can be extended if the alleged offense is punishable by at least 1 year in prison. Thus, the measure can be extended for a new period of up to 24 hours, with written and reasoned authorization from the public prosecutor.

For serious offenses, police custody can be extended to reach a total duration of 72 hours (or 96 and 144 hours, in cases of drug trafficking, terrorism…). In these cases, the decision is made by the investigating judge, during a judicial investigation, or by the liberty and custody judge in other cases.

The starting point of police custody is set, in principle, at the time when the suspect is apprehended; the duration of detention from other deprivations of liberty is deducted from that of police custody: identity verification, customs detention for example.

Specificity when it comes to a minor:

From the age of thirteen, a minor can be placed in police custody in the cases and conditions provided for in Articles 62 to 66 of the Code of Criminal Procedure, with certain reservations (Code of Criminal Justice for Minors (CJPM), art. L. 413-6).

The OPJ informs the legal representatives and the person or service to whom the minor is entrusted.

From the beginning of police custody, the minor must be assisted by a lawyer, under common law conditions (the legal representative can make this request).

A minor under sixteen benefits from a systematic medical examination at the beginning of police custody.

Minors over sixteen and their legal representatives are informed of their right to request a medical examination.

The duration of police custody for a minor cannot exceed 24 hours or, when police custody cannot be extended, 12 hours.
Thus, police custody for a minor under 16 years old can only be extended if the offense they are suspected of having committed or attempted to commit constitutes a crime or an offense punishable by a sentence equal to or greater than 5 years of imprisonment.

When possible, the extension involves the prior presentation of the minor to the public prosecutor.

• Audiovisual recording of minors’ interrogations is mandatory, except in case of technical impossibility (CJPM, art. L. 413-12), with the original being placed under seal and a copy added to the file.

What are the rights of the person in police custody?

Police custody begins with the notification of rights to the person in custody and a possible search or security pat-down.

The person placed in police custody has the following rights:

• Right to notify a close relative and employer: They can notify only one close relative from the following list: Person with whom they usually live; Father or mother; One of their grandparents; One of their children; A brother or a sister.
• Right to be examined by a doctor: the person in custody or a member of their family can request that they be examined by a doctor who must notably determine if the custody is compatible with the suspect’s condition.
• Right to be assisted by a lawyer: it is possible to choose your own lawyer or request a court-appointed lawyer. If the latter does not show up within 2 hours, the hearing can still take place. The magistrate in charge of the case (judge or public prosecutor) can authorize an immediate hearing without waiting for the lawyer’s arrival if the case justifies it. The lawyer can attend all interrogations, take notes and make observations;
• Right to an interpreter in the language of their choice if they do not master the French language;
• Right to remain silent, their only obligation is to state their identity;
• Right to make observations in case of extension of custody;
• Right to consult certain reports: the custody proceedings report, the hearing reports and, if it exists, the medical certificate from the doctor who examined them.
• Respect for the dignity of the person in custody: they must be able to benefit from rest periods and must be able to drink water and have hot meals at normal hours.

What happens during custody?

1. Notification of the rights of the person in custody

The OPJ (Judicial Police Officer) must inform from the beginning of the custody the person in custody of the following elements:

• Beginning of custody, duration and possibility of an extension of its initial duration
• Offense they are suspected of having committed, presumed date and place of it
• Objectives of the custody
• All of their rights.

If necessary, the notification must be given in a language that the person in custody understands.

2. Pat-down or search

The person in custody may be subject to a security pat-down or search if it is necessary for the investigation.

• Manual pat-down or with electronic detection. An agent of the same sex as the person being searched touches them over their clothes. This agent may ask them to remove certain clothing, but a full strip search is prohibited. This pat-down is to check that the suspect in custody does not have any dangerous object on them.
• Full search if the pat-down is insufficient. It must be essential for the investigation. The suspect in custody may be asked to undress. This search must be decided by an OPJ and carried out by a person of the same sex as the person being searched, in a closed location.

Only a doctor can perform a body cavity search. It is used if the suspect in custody is suspected of hiding an object inside their body.

3. Investigation acts

• The suspect can be questioned and confronted as long as the custody is not over.
• They may be asked to participate in a crime scene reconstruction or a suspect identification session of which they are a part.
• They may be transported to the scene of the offense.

The police services have access to three automated files that contain certain information on people who have been subject to criminal or correctional proceedings. These files can be updated during custody:

• The Taj file (Judicial Background Processing created by the law of March 24, 2011 on orientation and programming for the performance of internal security) can thus be updated with information related to identity, date and place of birth, profession, or even a photograph
• The FAED (Automated Fingerprint File) allows for the recording of fingerprints of individuals in police custody; this file ensures the true identity of persons implicated in criminal proceedings or sentenced to prison.
• The FNAEG (National Automated DNA File): Article 706-55 of the Code of Criminal Procedure provides for the collection of genetic fingerprints in this file from persons implicated in criminal or correctional investigations, particularly for certain offenses.

The end of police custody:

At the end of police custody, the public prosecutor or the investigating judge decides whether the person in custody should be released or brought before the court.

If the person in custody is transferred from the judicial police premises to the court, it is called a referral. In this case, the person in custody must be presented to the public prosecutor or judge who decides on the judicial proceedings to be taken.

APPLICABLE REFERENCES:

Code of Criminal Procedure (CCP) Article 62-2 (Conditions for placement in police custody);
CCP, Articles 53 to 74-2 (Duration of police custody, rights of the person in custody, pat-downs and searches);
Code of Criminal Procedure: Articles 706-88 to 706-88-1 (Duration of police custody applicable to certain serious offenses); CCP: Article 803-2 (Referral before a magistrate); CCP: Article 803-3 (Referral before a magistrate with detention for a maximum of 20 hours); CCP: Articles 706-54 to 706-56-1-1 (FNAEG registration); Order of June 1, 2011, relating to security measures during police custody; Circular of May 23, 2011, on the application of provisions relating to police custody; Circular of May 23, 2014, on the right to information in criminal proceedings.
LAW No. 2023-22 of January 24, 2023, on orientation and programming of the Ministry of the Interior.