The father of little Kamilya, who died after being hit by a motorcyclist in the Alpes-Maritimes, was moved to see the suspect free and not in pre-trial detention.
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“No respect for our daughter or for ourselves”wrote on Facebook on Sunday, September 1st, the father of Kamilya, the 7-year-old girl hit by a motorbike on Thursday evening in Vallauris (Alpes-Maritimes) and who died three days later in hospital. Kamilya’s father then spoke on Facebook on Sunday, regretting that the 19-year-old motorcyclist, who was under investigation, had been placed under judicial supervision and not in pretrial detention. What does the law say about these different procedures?
What is the difference between pre-trial detention and judicial supervision?
The purpose of pretrial detention is to protect the proper conduct of the investigation and consists of incarcerating a person presumed innocent who has not yet been convicted according to the definition of the site Service-public.fr. Its duration is limited to four months for misdemeanors, two years for felonies and three years for sentences of more than 20 years. Pre-trial detention is ordered if it is previously established that judicial supervision or the wearing of an electronic bracelet will not prevent the destruction of evidence, the suspect’s escape or pressure on witnesses or the family.
Judicial supervision is ordered in cases where the accused person is awaiting trial following a preliminary investigation or if he or she is under indictment. Judicial supervision ends with the trial and therefore has no maximum duration.
Unlike pretrial detention, judicial supervision allows the suspect to be free in the sense that he is not detained in a remand center. But he is subject to judicial constraints that differ depending on the individual. In the case of the suspect who hit little Kamilya, the 19-year-old motorcyclist is required to “report once every two weeks to the Antibes police station”. He can’t “get in touch” with the victim’s family and is also unable to travel to the town of Vallauris (Alpes-Maritimes). His driving licence has been confiscated and he is also prohibited from leaving the Alpes-Maritimes department.
Who decides on pre-trial detention or judicial supervision?
It is the judge of liberties and detention (JLD) who has jurisdiction over pretrial detention, and not the investigating judge. The investigating judge, on the other hand, questions the person under investigation after their police custody and can then refer the matter to the JLD in order to request the pretrial detention of the person under investigation. The latter, after being questioned by the investigating judge, is brought to a hearing before the JLD, with the mandatory assistance of a lawyer.
An adversarial debate takes place during which the public prosecutor, the accused and his lawyer each have the floor in turn. The JLD issues an order following this adversarial debate. The JLD may order the person to be placed in provisional detention or refuse this detention. In this case, it orders either placement under judicial supervision detention or house arrest with electronic surveillance.
What if the prosecution, the investigating judge and the JLD do not agree on the decision of the judicial review?
There are cases where the JLD’s decision is not unanimous. This is the case of the little Kamilya case, who died on Sunday from her injuries after being hit by a motorcyclist: the Grasse public prosecutor’s office (Alpes-Maritimes) and the investigating judge who indicted the motorcyclist wanted her to be placed in provisional detention while the investigation continued. However, the JLD decided to place her under judicial supervision, as the 19-year-old was not under the influence of alcohol or drugs at the time of the events and was not known to the police. “The JLD’s decision seems legally completely well-founded. Even if for the civil parties it is necessarily incomprehensible because emotion sweeps everything away, in a completely legitimate way,” comments Marion Ménage, criminal lawyer at the Pontoise bar.
The prosecution has also appealed this decision. The appeal will be examined “as soon as possible” according to the investigating chamber of the Aix-en-Provence Court of Appeal. “The risk of flight or repetition of the facts seems low, the loss of evidence is irrelevant, the risk of collusion is zero. All that remains is the objective seriousness of the facts and the disturbance of public order” which could lead to provisional detention, explains the lawyer. Also, the media pressure of a case can in certain cases influence the notion of disturbance of public order but “fortunately it is not sufficient to result in pre-trial detention”the lawyer believes.
Why is pre-trial detention not automatic?
As mentioned above, pre-trial detention can only be ordered when judicial supervision or the wearing of an electronic bracelet do not prevent the destruction of evidence, the suspect’s escape or pressure on witnesses or the family. The detention of an individual not tried must therefore remain exceptional since “we are in the field of the pre-sentence” says Marion Ménage.On paper, we should never put a person in prison until a court has found them guilty and sentenced them. Detention before any judgment must remain very strictly regulated,” she adds. “This does not prevent this young man from being incarcerated when he is sentenced. It will then be as a punishment.”
Another argument put forward to defend the exceptional use of pretrial detention is prison overcrowding. Around 26% of incarcerated prisoners are awaiting trial in France according to the website Vie-publique.fr.