four questions on the new rules which come into force in France on July 1

From this date, a hearing cannot take place without the presence of a lawyer. The person in police custody will also have the possibility of informing a person of their choice. New provisions which apply in accordance with European law.

No hearing without the presence of a lawyer. This is the main measure of the police custody reform, which comes into force on Monday July 1 and results from the transposition of European provisions into French criminal law. To the great dismay of the police, the rules will therefore change a little more than three weeks before the opening of the Paris 2024 Olympic Games. Franceinfo looks back on this reform and its challenges in four questions.

1 What does this reform change?

Since 2011, any person could request, upon being placed in police custody, the assistance of a lawyer, authorized to attend all hearings, instead of a 30-minute interview previously. From now on, with the new law, which dates from April 22, the presence of the lawyer is obligatory: otherwise, the hearing cannot begin. If the appointed lawyer cannot attend “within two hours”or if the person does not have counsel, a court-appointed lawyer must be appointed.

Exceptions to this rule have been introduced. They are subject to conditions: it is necessary to “express waiver of [l]apart [de la personne en garde à vue] mentioned in the minutes” or a request from a public prosecutor, “either to avoid a situation likely to seriously compromise criminal proceedings, or to prevent a serious attack on the life, liberty or physical integrity of a person”.

Another change: the possibility for the person in police custody to warn “any person it designates”. Until now, she had the possibility of notifying her employer and a relative, in other words the person with whom she lives, her parents, grandparents, children, brother or sister. The third party accused may request a medical examination for the person in custody who has not done so.

2 Why should France apply this reform?

These new measures will be applied from July 1, a little over three weeks before the opening ceremony of the Olympic Games. But it is not a reform linked to the event. Nevertheless, the calendar provokes protests, in particular among members of the police, because the reform is put in place at a time when an increase in activity is expected, given the crowds expected during the Paris Games. .

However, France has no other choice but to apply it: it must comply with European Union law. In fact, the European directive which introduces the obligation to be assisted by a lawyer from the start of police custody and throughout its duration dates from October 22, 2013. But France has not translated it into national law . Consequently, the European Commission issued formal notice in 2016, then in 2021, to the French State to comply. Before raising your voice and sending him a reasoned opinion, “for incorrect transposition of the directive”, on September 28, 2023. From that moment, France had two months “to take the necessary measures to remedy the deficiencies”.

3 Why are police officers opposed to it?

Several police unions are speaking out against these new provisions. Alliance spokesperson, Eric Henry deplores, to franceinfo, a reform which “continues to unbalance the rights of those involved and investigators”. “Being obliged to wait for the lawyer to arrive if the person in custody requests it, without the possibility for the investigator to carry out a hearing or other action, is very damaging to the effectiveness of the investigation,” he points. As for the possibility of notifying a friend or colleague of his detention, it represents, according to him, “the increased risk of collusion and decay of evidence”.

“We must then imagine the investigator, within the three hours following the accused’s request, carrying out checks on the real identity of this third party and having to avoid any weakening of the procedure: risk of complicity, pressure on witnesses or victims, loss of evidence…”, falls into Le Figaro Jean-Paul Mégret, number two of the Independent Union of Police Commissioners. According to him, “for everything that concerns mass delinquency, if the lawyer does not come, the police will no longer be able to do anything. The lawyer will have the capacity to block the police custody system.”

4 How do the magistrates’ and lawyers’ unions react?

For their part, representatives of magistrates and lawyers welcome progress, even if it took time to arrive. “There is no reason why France should not be aligned with European standards of police custody, in order to guarantee the rights of defense,” notes the president of the Magistrates’ Union (SM), contacted by franceinfo. Kim Reuflet defends a “balance position” : “Statements in the presence of a lawyer help to better protect people from pressure, particularly for those who have never been in police custody.” “And then, it makes the statements collected more solid, which represents an interest for the procedure”she believes.

The president of the SM also considers legitimate the protests of investigators regarding the implementation and timing of the reform. “There is a lack of anticipation, even though we have known for years that this directive had to be transposed,” she emphasizes. On the other hand, the magistrate considers that the presence of a lawyer is not appropriate “hinder the possibility of carrying out investigations and collecting evidence urgently”, since a derogation regime is planned. “The criteria, which leave a margin of appreciation to prosecutors, could apply to experienced offenders and co-perpetrators of violence, for example,” highlights Kim Reuflet.

“Our presence does not hinder the manifestation of the truth and does not block the investigation,” assures franceinfo Thomas Fourrey, member of the French Lawyers’ Union (SAF). “Until now, we tried to come to police custody as quickly as possible when we were called. So there was pressure on us: the client found himself alone if we could not travel. With this reform, we have greater room for maneuver, because if this is not possible, an official must be called”, develops Thomas Fourrey. ““For people in police custody, it’s better: their rights are more respected”insists the lawyer.