Key Benefits:
(Plenary Assembly - 25 April 2014)
1. Several laws have been passed in recent years in criminal investigations, the most emblematic being that of April 14, 2011 on custody (2). The legislative work has recently continued with the adoption of a law on geolocation (3) and is still ongoing with the filing of a bill on the transfer of the directive of 22 May 2012 on the right to information in criminal proceedings (4), even though the guard of the seals entrusted Jacques Beaume, Attorney General near the Court of Appeal of Lyon, a task of reflection on the criminal investigation. This reveals a disparate, segmented approach to the issues relating to the investigative phase of which the reforms, which take place as soon as the dates of the transposition of the directives and the evolution of European and constitutional jurisprudence (5), often appear unsuccessful or even insufficient (6). This entails a complexion of the provisions of Code of Criminal Procedure, whose "loss of coherence" was denounced as part of a symposium under the auspices of the Court of Cassation (7). In these circumstances, the CNCDH can only support the intervention of a major reform of the criminal investigation that reflects a comprehensive political vision and thus call for ambitious and thoughtful legislative work (8).
2. The scientific material is extremely rich in this field. The status of criminal cases has indeed given rise to reports that have undoubtedly been dated. At the end of the 1940s, the Donnedieu de Vabres commission already proposed a comprehensive reform of the preparatory instruction (9) not without having found that the principle of the separation of the prosecution and instruction was in fact not respected as the prosecutor, having a higher rank in the judicial hierarchy, had at the time a high hand on the instruction. Moreover, the examining magistrate, then deprived of power over the judicial police, and embarrassed by the contradictory nature of the information, did not have freedom of action. As Pierre Couvrat usefully specifies, the commission considered a reversal of roles or rather a shift in functions. It had a new principle, that of the separation of inquisition or information functions and purely judicial, police and prosecutorial functions on the one hand, judge on the other (10). The public prosecutor therefore saw his duties strengthened by being both a prosecution officer and an information officer. For his part, the examining magistrate lost his powers of instruction, but retained his jurisdiction by becoming "instruction judge", of an instruction made by the prosecutor. This "instruction judge" would have been called upon to resolve all contentious situations that may arise from the opening to the closing of the instruction. The commission Donnedieu de Vabres was aware that, in order to be able to play this role, the "instruction judge" should be at the same level as the prosecutor of the Republic and above his substitutes. The "instruction judge" was to be placed in an arbitrator's position. Some immediately argued that, limited to his role as arbitrator, the examining magistrate would be largely unoccupied in small courts. Others, on the other hand, raised the risk that the "instruction judge" would be the subject of ongoing disputes by the parties. For some, finally, the "instruction judge" would find himself unpunished in the face of "the police dictatorship" (11). The Donnedieu de Vabres report was a source of intense debate in doctrine and in judicial circles, but it did not reach consensus, mainly on the removal of the investigating judge. As Marguerite Arnal points out in her thesis: "It is on the instruction that the revolutionary ardour of the drafters of the project Donnedieu de Vabres" (12). Is it not also on the instruction that the "revolutionary zeal" of the Leger Committee, whose report was given to the President of the Republic on 1 September 2009 (13)?
3. Another famous report was delivered in 1991 in the custody of the seals, that of the "criminal justice and human rights" commission, chaired by Mireille Delmas-Marty (14). The latter, after two years of sustained work, did not wish to propose a new Code of Criminal Procedure "keys in hand" but it laid the foundations of the guiding principles of criminal procedure at the origin of thepreliminary article of the Code of Criminal Procedure introduced by the Act of 15 June 2000 (15). The Delmas-Marty report then presents the prerequisites and essential conditions for the removal of the investigating judge and a new way of thinking and organizing the preparation of criminal cases.
4. The Léger report borrows a lot from the Donnedieu de Vabres report and a little from the Delmas-Marty report without providing the necessary coherence for a criminal trial that must guarantee fundamental rights (16). Neither in the Donnedieu de Vabres report – but at its discharge it was written in 1949, even before the European Convention on Human Rights was signed – nor in the Léger report, the concern for respect for fundamental rights is first. We feel in the report Donnedieu de Vabres as in the report Léger a desire for effectiveness of the procedural system while the Delmas-Marty report focuses on a strengthened protection of individual freedoms, a harmony with European and international rules and a search for balance to make the criminal trial fair. However, the major common point between these three reports is that, on the one hand, the separation of the prosecution and instruction is no longer justified and on the other hand, the examining magistrate accumulates functions that appear incompatible. There stop the convergences because the answers to the observation are radically different in the Delmas-Marty report and in the reports Donnedieu de Vabres and Leger. In a few words, for the Delmas-Marty commission, the removal of the investigating judge is possible only on two unavoidable conditions: a new public ministry that would no longer be the public ministry of today in the hands of the executive power, and a judge of the statehood that would be much more than the judge of the investigation of the Donnedieu de Vabres report or the judge of the investigation and freedoms of the Leger report. He would be a judge of liberties, extended skills and redefinite status.
5. If, to date, the removal of the investigating judge is not envisaged, a large number of issues referred to in the above-mentioned reports are reflected in the investigation phase, which has not experienced the same evolutions as the preparatory instruction (17). The criminal investigation, contrary to the investigation, suffers from a real deficit in respect of the principle of conflict and the rights of defence, to which it must be absolutely remedied, in particular because of the requirements laid down by the European Court of Human Rights, under articles 5 and 6 of the EHRC (18). In addition, the progressive construction of a European Union criminal law following the Lisbon Treaty must not be neglected (19). By a resolution of 24 November 2009, the Council of the European Union adopted the "road map to strengthen the procedural rights of suspects or persons prosecuted in criminal proceedings" (20). The underlying motivations for this initiative are well presented in the considerations of the text. On the one hand, it must be recognized that the European Convention on Human Rights "is the common basis for the protection of the rights of suspects and persons prosecuted in criminal proceedings" and that it "is an important basis for Member States to nourish and strengthen mutual trust in their criminal justice systems". On the other hand, it is recognized that "the European Union could do more to ensure full implementation and compliance with the standards set out in the Convention, and, where appropriate, to ensure consistent application of applicable standards and to raise the level of existing standards." This innovative observation is based on the increase in the number of persons involved in criminal proceedings in a Member State other than that of their residence, as a consequence of the opening of borders: in favour of these individuals, it is a question of safeguarding the right to a fair trial. The conclusion is therefore that "in order to strengthen mutual trust in the European Union, it is important that, in addition to the Convention, there are European Union standards on the protection of procedural rights that are duly implemented and applied within the Member States". Accordingly, the Council of the European Union proposed a series of measures to strengthen the procedural guarantees of suspects and persons prosecuted (21). These measures were taken by the Stockholm programme (item 2.4) (22) before being declined in several directives (23). Against an overly abhorrent understanding of the requirement to transpose the directives, if it was to prove that certain provisions did not respect the fundamental right to a fair trial (24), the CNCDH recalls that the classical vigilance of the European Court of Human Rights is now in addition to the control of the EU Court of Justice, specifically called upon to ensure that this right derived from the Charter of Fundamental Rights entered into force in Lisbon, 2009
6. Finally, violations of fundamental rights and individual freedoms arising out of the implementation of measures of constraints or investigation for the effectiveness of the repression require not only to reflect on the status of the person involved, but also to rethink the status of the prosecutor and the procedure for the intervention of the judge during this initial phase of the trial, which became in practice the "current" procedure for the rehabilitation of criminal cases. In this regard, the Constitutional Council has very usefully found that "the proportion of the procedures submitted to the preparatory instruction has been steadily decreasing and represents less than 3% of the judgments and orders rendered on public action in correctional matters; that, after the law of 24 August 1993, the practice of the so-called "real-time" treatment of criminal proceedings has been widespread; that this practice leads to the public prosecutor's decision on public action being taken on the report of the judicial police officer before it is terminated in custody; that, if these new procedures for the implementation of public action have allowed a faster and more diversified criminal response in accordance with the objective of good administration of justice, it does not, however, result that, even in procedures relating to complex or particularly serious facts, a person is now most often judged on the basis of the evidence gathered before the expiration of his or her custody in view of the trial, in particular on the confessions that she has been able to make Obviously, the necessary reform of the investigation is inseparable from a total redesign of Code of Criminal Procedure (CPP) (27) that will not be able to save the following fundamental questions:
- the reform of the statute of the public ministry;
the jurisdictionalization of the criminal investigation;
- the reform of the statute of the judicial police;
the restriction of the exorbitant powers of common law of the judicial police;
the modernization of the criminal investigation.
I. ∙ Reforming the status of the Public Prosecutor ' s Office
7. Introductory title, the CNCDH intends to recall that, despite the coming into force of the Act No. 2013-669 of 25 July 2013 The statutory reform of the Public Prosecutor ' s Office in the area of criminal policy and the implementation of public action has not been completed, as long as it has been of the opinion that it is necessary to provide specific guarantees regarding the appointment and status of members of the Public Prosecutor ' s Office (28).
8. In recommendation (2000)19, the Committee of Ministers of the Council of Europe expressed its wish regarding the role of the Public Prosecutor in the criminal justice system (29). He has distinguished different legal traditions, each of which has its own characteristics. Some government departments are independent; others are hierarchically submitted to the Minister of Justice; some receive individual instructions, while others cannot receive them; some are part of the judiciary, others not (30). These different legal traditions may, if surrounded by sufficient guarantees, be as protective of human rights as one another. A hierarchical prosecution service to the Minister of Justice should have more limited prerogatives than an independent prosecutor's office, while important rights should be recognized to the parties involved in the case (the suspect and the person reporting to be a victim), including initiating the prosecution. Conversely, an independent prosecutor ' s office in the Ministry of Justice requires that it be recognized a proper authority to coordinate its criminal policy.
9. The ambiguity of the statute of the Public Prosecutor's Office has not been lifted in French law (31), which does not choose between these different forms of legal traditions (32). Ambiguity is constitutional. The prosecutors are members of the judicial authority (33), and in this regard are independent (art. 64 of the 1958 Constitution). Some read in the jurisprudence of the Constitutional Council a recognition of the constitutional character of the principle of unity of the body (34). The Constitutional Council also considered "that under Article 20 of the Constitution, the Government determines and conducts the nation's policy, particularly in the field of public action"; and that the principle that "the Minister of Justice conducts the public policy determined by the Government. It ensures consistency in its application in the territory of the Republic" did not misunderstand "the French conception of the separation of powers, nor the principle that the judicial authority includes both the magistrates of the seat and the prosecutors, nor any other principle or rule of constitutional value" (35).
10. However, if the Constitutional Council sees no contradiction between the subordination of a prosecutor's office and the independence of justice, the European Court of Human Rights does not share this analysis. On the occasion of its decision Moulin v. France, confirming its decision by Grande chambre Medvedyev against France of 29 March 2010 (36), the Court considered "that, because of their status so recalled, members of the public ministry in France do not fulfil the requirement of independence with respect to the executive, which, according to a constant jurisprudence, counts, in the same way as impartimagi, among the inherent guarantees of the 3 senses At this point of reasoning, it is appropriate to point out that the criticisms of the European Court of Human Rights in the Moulin case are multiple, and do not relate only to the lack of independence of the public prosecutor's office vis-à-vis the executive and the parties, but also to the fact that he is a party pursuing the criminal trial. As it states: "The guarantees of independence with respect to the executive and the parties exclude, inter alia, that he [the public prosecutor] may then act against the appellant in criminal proceedings (38). »
11. CNCDH considers that two solutions can, in principle, be considered (39). The separation of the judiciary into two separate bodies is one: on the one hand, the public prosecutor, a hierarchical body, submitted to the Minister of Justice, who would abandon his independence; on the other, the judges of the seat, fully independent. To be acceptable in terms of rights and freedoms, this hypothesis should be accompanied by a significant evolution of the French criminal procedure; It would then be necessary to allow for the initiation of prosecutions that would not depend exclusively on the prosecutor ' s office, especially in cases involving the probity of elected officials, for which the constitution of a civil party might seem more difficult to implement. In addition, it would be necessary to transfer some of the prosecutor's powers to a magistrate at the office, to strengthen the defence rights, particularly during the preliminary investigation, and to increase the budget allocated to legal aid. The other solution is to recognize greater independence in the public prosecutor's office, for example by establishing, as is sometimes proposed, a Attorney General of the Nation (40). Such a reform would not solve all the problems, in particular it would not allow itself to respond to the preconizations of the Medvedyev and Moulin (41), because, even independent, the Public Prosecutor's Office could not be regarded as impartial: it remains a prosecuting party and is part of a hierarchy responsible for implementing criminal policy. In order to comply with European human rights law, independence should also be accompanied by a reduction in the prerogatives of the prosecutor's office in respect of violations of fundamental rights and freedoms. The independence of the prosecutor's office seems to be at least imposed in the light of the progressive developments in the French criminal procedure. As a result of successive reforms, including the enlargement of the powers of the public prosecutor during the preliminary investigation, his role has evolved (42), to gradually become that of a quasi-jurisdiction of instruction (43). In addition, the opportunity for prosecutions has been banished as prosecutions are only one of the many modalities of the criminal response. While the criminal response rate was 83.5 per cent in 2007, it is expected to reach 90 per cent in 2015 (44). This increase in the rate of the criminal response is due to the establishment of a quasi-judicial power of the prosecutor's office; for almost half of the offences (47% for adults, 51% for minors), the criminal response is only provided by him, with his jurisdiction over alternatives to prosecution exclusive. For other cases, the orientation towards derogatory procedures such as the immediate appearance produces such consequences on the defendants that it can be considered a sort of pre-judgment: in fact, it most often leads to the issuance of a filing warrant against the person prosecuted (45).
12. For the CNCDH, the right to an independent and impartial tribunal (art. 6 of the CESDH) implies that the judge of the siege sees restored his true place within the French criminal procedure, namely a central place compared to that of the prosecutor who, through successive transfers of competence without parallel transfer of guarantees for the suspect, has become a " quasi-judge" (46). However, the Public Prosecutor's Office, as the European Court of Human Rights recalls, is also a prosecutor in the criminal proceedings as it carries the charge and implements the Government's criminal policy (47). In these circumstances, by its natural position in the proceedings, it cannot be considered as an independent and impartial tribunal. This is why the new section 31 of the CPC (48) must be understood exclusively as devoting a deontological obligation that does not have the procedural meaning of impartiality (49), since the Public Prosecutor's Office is not "a judge who decides" (50). This text, combined with sections 30 and 33 of the CPC (51) devoting the principle of hierarchical subordination and submission to the Minister of Justice, reflects the duality of the Public Prosecutor's Office, which is at the service of both the law and the executive branch (52). Because of this duality, the appearance of impartiality is not preserved. The same is true for appearances of independence. In this regard, given the many prerogatives of the public prosecutor ' s office, it is necessary that new statutory guarantees be recognized (53), which implies a change in the status of the judiciary (54). The CNCDH notes that this issue is the subject of the first proposals of the Nadal Report (55) with regard to constitutional amendments, while recognizing that the issue of the independence of the prosecutor does not solve everything. The obvious need for a reform of the procedural system cannot be carried out in precipitation; it imposes a profound reflection and a debate involving jurists, professionals, elected and civil society. The recent national debate on the "Justice of the 19th Century" (56) is a first positive step in the sense that must be welcomed.
II. ― Legalizing the Criminal Investigation
13. The CNCDH has already had the opportunity to insist on the need for a real and effective control of the investigative operations by the judge, bearing in mind the practical inconveniences of a reform in this regard: "Isolated, with a heterogeneous litigation, sought urgently and intermittently, it risks having only an incomplete, fragmented and superficial vision of the case and having, in practice, limited access to the case. The judge of the investigation and freedoms will therefore be most often forced to register the acts of the prosecutor's office" (57). As a result, the CNCDH is in favour of strengthening the status of the current "judge of freedoms and detention" in order to establish an authentic "judge of freedoms" which would be a specialized judicial function within the meaning of article 28-3 of the statute of the judiciary (58), exercised by a magistrate of the first rank appointed by decree of the President of the Republic (59), having a competence of common law in the control of investigations and of legal guarantees of fundamental rights and freedoms This proposal organizes the following balance: the role of the Public Prosecutor's Office would be completely refocused on the investigative functions (A.), while the new Justice of Freedoms would be recognized with strengthened judicial powers in terms of guaranteeing fundamental rights and freedoms and monitoring the regularity of investigations (B.).
A. ― To focus the Public Prosecution Service on investigative functions
14. Following the proposed architecture, the Public Prosecutor's Office would have the authority to direct and control investigations conducted by the police or the gendarmerie. As such, it may require that any investigative action be taken that is not in a manner that disproportionately affects fundamental rights and freedoms such as the disclosure of documents not covered by a physical secret provided for by law, the initial placement in custody (60), the transport on the premises, the reported records, a screening of suspects, the hearing of a witness, the removal of an offence on the premises In his role as director of the judicial police, the prosecutor of the Republic could also order that he be terminated an investigation initiated by an OPJ.
15. On the other hand, for all acts that seriously affect fundamental rights and freedoms (prolongation of custody); technical or scientific expertise involving sampling of a person or bodily intrusion; searches; sampling of a person; seizures of property, geolocation measure, etc.), the Public Prosecutor's Office would have an obligation to refer the judge of freedoms to order the investigation measure.
16. The question is whether this balance is not likely to be disturbed by the fact that the responsibility of the investigation is assigned to an institution that, even if it is composed of magistrates and placed under the control of a judge, is still in some way under the dependence of the executive branch (61). In this regard, it should be recalled that article 30 of the CPC gives the seals a role in criminal proceedings (62), which is questionable under the principle of separation of powers. In the state, the law confers on the guard of the seals the mission of "driving", that is, defining and coordinating criminal policy. For the CNCDH, this power must in no way have the effect of corseting the discretionary power of the public prosecutor, in disregard of the principle of the opportunity of prosecutions (63). It therefore recommends that the extent of the powers of the Minister of Justice be clearly defined by law and that the terms "general instructions" contained in section 30 of the CPC be abandoned for the benefit of those of "general guidance circular" (64). It would then be up to the Attorneys General and Attorneys of the Republic to clarify, adapt, and implement these guidelines by taking into account the specific context of their jurisdiction, as the article 39-1 of the CPC is very timely.
17. Furthermore, it must be emphasized that article 30 of the CPC, in its version from the Act No. 2013-669 of 25 July 2013, prohibits individual instructions. While this prohibition is salutary, it may be doubtful whether it is effective in the absence of a transfer to the Supreme Council of the Judiciary (MCS) of the career management skills of prosecutors currently entrusted to the Ministry of Justice (65) and the maintenance of Article 5 of the statute of the judiciary. Indeed, three types of influences on the Public Prosecutor's Office in targeted cases must be distinguished:
- written instructions. If they exist, they are rare and to date prohibited;
- oral instructions. They are more common, and can take various forms. It is to be feared that Article 30 of the CPC does not allow to respond to such practices;
― in a number of situations, it is to be feared that the prosecutor's magistrate would not anticipate the wishes of the ministry, which would not have to take hold with him. The handing over of the guard of the seals on the career of prosecutors in particular may lead, or even incite to such behaviours (66).
18. For the CNCDH, only a recognition of the independence of the public prosecutor and a strengthening of the powers of the MSC on the evolution of the career of all judges (67), could effectively combat such instructions (68). As a result, it highlights the risks of seeing individual instructions continue as long as the independence of the Public Prosecutor's Office is not fully guaranteed.
B. ∙ Strengthening the powers of the judge in the control of investigations and the protection of individual freedoms
19. The CNCDH is very committed to the "principle of judicial guarantee" based on article 66 of the 1958 Constitution, as well as on articles 5 and 6 of the ECHR (69) requiring the intervention of a judge, from the investigative phase, for all acts relating to fundamental rights and freedoms (freedom of going and coming, privacy, etc.) (70). In these circumstances, the judge of freedoms would have two main functions:
1. Authorize and monitor measures that seriously affect fundamental rights and freedoms
20. As part of the exercise of this first function, the Justice of Freedoms would be responsible for authorizing and controlling:
― in respect of violations of the freedom to go and come: extension of custody, search warrant, etc.;
― in respect of breaches of private and family life as well as the intimacy of the person: interceptions of correspondence emitted by the means of telecommunications, bodily searches, biological removals on a person, technical and scientific expertise involving physical sampling or intrusion, searches, geolocation, surveillance and infiltrations, communication of documents protected by a secret provided by law, communication of information contained in a secret
- in respect of infringements of private property: seizures of property or parts, searches and visits of vehicles, etc.;
– with respect to restrictions on defence rights: deferral of full access to the file, restrictions on full access to the file, etc.
21. In addition, in order to guarantee the right to appeal under article 13 of the EHRC, it would be desirable to submit the decisions of the "judge of liberties" to an accelerated remedy of the type referral of the presiding officer of the board of inquiry, ruling within 48 hours.
2. Control the regularity of the investigation procedure
22. In this capacity, the liberties judge would check, inter alia, the legality of the initial detention in custody and the legality of the use of the emergency procedure within 24 hours. More generally, it would ensure the regularity of the investigative activity conducted under the direction of the Public Prosecutor's Office by:
― granting or refusing an extension of the statutory investigative deadlines;
― ruling on the nullities of proceedings raised before him or her;
∙ deciding on appeals against the prosecutor's refusal to conduct an investigation action requested by the suspect or his lawyer;
― finding the inaction of the Public Prosecutor's Office or the impediments to the proper conduct of the investigation, it could therefore refer the matter to the Board for divestiture.
23. In this regard, it must be specified that, when the liberties judge decides on an application for an act or an extension of the period of investigation, he shall, above all, conduct a one-time review of their proportionate character, in the same way as an administrative judge controlling the manifest error of appreciation. He does not directly decide on the appropriateness of an investigation, provided that he does not have the task of conducting and directing investigations as an investigating judge or prosecutor at the stage of the investigation. Indeed, this new "Liberal Justice" is not designed to be designed as a "investigation judge" similar to the "Ermittlungsrichter" (literally "investigation judge") German, who is authorized to carry out particularly serious investigative acts because of their scope (71).
III. – Making the judicial police justice
24. Preventing violations of the independence of justice requires preventing possible pressures that could come from the Ministry of Interior. However, if "the judicial police is exercised, under the direction of the public prosecutor, by officers, officials and designated officers" (article 12 of the CPC), and if the activity of judicial police officers and judicial police officers is "controlled" by the board of the investigation, and supervised by the Attorney General, officers, officials and agents are subject to the administrative authority of the Ministry of the Interior. This submission is further reinforced by the very hierarchical structure of the judicial police initially under the sole judicial police officers, judicial police acts are now delegated to judicial police officers and deputy judicial police officers. As a result, the reality of the direction and control of the judicial police is essentially the responsibility of the Ministry of Interior and the control exercised by the prosecutor of the Republic and the board of investigation is only very partial (72).
25. The problem is particularly important with regard to human resources management. A possible solution would be to make available to police officers who devote themselves exclusively to the judicial police; they should be managed jointly by the General Prosecutor's Office and by the Investigation Board at an appropriate level at each appeal court (73). Judiciaries of the Judiciary would have a " right of draw " on the staff so assigned. At the national level, a joint internal commission, justice, chaired by a magistrate of the Court of Cassation, would determine the number of police officers assigned to each jurisdiction and ensure the advancement of these police officers and their right to be reintegrated into their original bodies. It would be appropriate for this commission to ensure that these police and gendarmes enjoy the same statutory and financial guarantees as in their original employment.
26. The CNCDH regrets the extreme timidity of the Nadal report on this point (74) and recommends that a consultation be conducted with the police unions and representatives of the gendarmerie to determine the conditions under which a number of police officers could be made available to the Investigation Chambers and the Attorney General (75). In this way, the prosecutor of the Republic should, as director of the judicial police, play an essential role with members of the law enforcement agencies, in order to enforce both the rules of ethics and the norms of behaviour that concern individual freedoms.
IV. • Restricting the exorbitant powers of common law of the judicial police
27. The powers of the judicial police have been considerably strengthened (76) in recent years, especially within the framework of the exceptional regimes relating to "bis criminal proceedings" (organized crime, etc.) (77), to which the CNCDH is radically opposed (78). It is now more than necessary to break definitively with the security criminal policy since then (79) and to reflect serenely on a better division of competence between judicial police officers, the prosecutor ' s office and the liberties ' judge in order to ensure at best the principle of separation of powers (art. 16 of the DDHC).
28. For the CNCDH, judicial police officers should have the task of conducting investigations, under the supervision and direction of the prosecutor's office, by being empowered to carry out all investigative acts themselves, which are limited and proportionate to fundamental rights and freedoms (80), namely:
- initial custody;
identification of a telephone call (81);
replenishment (82);
- controls and identity records;
- reported surveys;
- taking prints;
- transportation at the scene;
• Identification of suspects;
- hearing of witnesses;
external sampling;
technical and scientific expertise (not involving a person or body intrusion);
- communication of documents (other than those protected by a secret provided by law);
- communication of data contained in a computer system (other than those protected by a secret provided by law), etc.
29. In the event of a serious breach of fundamental rights and freedoms, the strengthening of the judge's powers of intervention must not lead to obstructing or paralysing the action of the judicial police in situations where no delay in completely compromising the effectiveness of investigations cannot be tolerated. For this reason, the CNCDH considers that the distinction between a common law regime (of the "preliminary investigation" type) and a derogatory regime (of the "floor investigation" type) must be maintained in such a way as to allow the prosecutor of the Republic and, if so, to the OPJ (under the direction and control of the prosecutor's office) to carry out investigations that are usually authorized by the judge of freedoms without delay.
30. CNCDH proposes a rewriting of Article 53 of the CPC in order to define, in an extremely rigorous manner, the conditions of the use of such a derogatory investigation procedure. Rather than maintaining flogging, several of which are now obsolete (e.g., the notion of "person prosecuted by public clamor") and the excessive duration (e.g., eight days, even a further extension of eight days in certain cases defined by law), it seems more appropriate to dedicate the concept of emergency, as it had already been proposed by the criminal justice and human rights commission (83): Such a definition would have the advantage of clearly highlighting the derogatory nature of the investigation procedure and not preventing the control of the liberties judge who would not intervene upstream, but downstream within 24 hours. A posteriori control would thus replace a prior authorization procedure.
31. With regard to the criteria for the use of the derogatory investigation procedure, it would be urgent to specify that it should be motivated:
- where a person's life or physical integrity is in danger;
- where indices are about to disappear and an investigation measure (search, geolocation, etc.) is, without delay, necessary;
- when a crime or offence is committed or about to be committed;
- where the alleged perpetrator of an offence is likely to escape the police or gendarmerie services and it is necessary to carry out his immediate arrest (84).
V. ― Modernizing the conduct of the criminal investigation
32. The investigation could include two phases: an initial, non-adversarial phase, and a contradictory phase.
A. ― The non-adversarial investigation phase
33. The opening of the initial investigation would either be by decision of the Public Prosecutor's Office or on the initiative of the Judicial Police (e.g., on the basis of a complaint from a person who claims to be a victim). During the initial phase, investigations would be conducted by the police and gendarmerie under the direction of the Public Prosecutor ' s Office. The Justice of Freedoms would, for his part, be responsible for authorizing and controlling acts that violate fundamental rights and freedoms (see above). In the event of an emergency, such acts could be carried out by the Public Prosecutor's Office or the Judicial Police before being controlled by the Freedoms Judge within 24 hours (see above). In order not to jeopardize the exercise of the rights of the defence, the secret investigation phase should absolutely meet the requirement of reasonable time. Therefore, a legal period of non-adversarial investigation could be fixed to six months renewable by the liberties judge at the request of the prosecutor of the Republic, being specified that the adversarial phase of the investigation must necessarily begin upon notification of suspicion (cf. infra) (85).
B. ― The conflicting investigation phase
34. The French criminal procedure must guarantee the contradictory nature of the investigations, as provided for in the preliminary article of the CPC (86). The organization and protection of the principle of the adversarial must be ensured by a judge of the siege, not the sole responsibility of the prosecutor. The implementation of this principle also involves the consecration of a suspect's status and the recognition to the suspect of rights guaranteeing effective and concrete defence.
1. Declaring a suspect's status
35. To date, one of the essential and persistent differences between the investigation and the investigation is that, during the investigation, the respondent does not fully enjoy the rights of the defence: it is not entitled to the assistance of a lawyer outside the custody, has no access to the file, cannot intervene in the course of the investigation to request such an investigation or challenge the regularity of an act (87). There is therefore a real "dissymmetry between investigation and investigation into the rights of the person prosecuted" (88), even though article 6 of the EHRC is intended to apply to the entire preparatory phase of the criminal trial (89).
36. This dissymmetry is technically explained by the fact that the criminal chamber has decided that section 105 of the CPC, requiring the person to open the rights of defence against whom serious and consistent evidence is gathered, does not apply to the investigation phase (90). As a result of this solution, the rights of the defence are "variable geometry", even though section 6.3 of the EHRC imposes the guarantee on any person on whom there is suspicion (91). The same is true of the provisions of the Directive of 22 May 2012 on the right to information in criminal proceedings (art. 2) and those of the Directive of 22 October 2013 on the right of access to a lawyer in criminal proceedings (arts. 2 and 3), which will require, at the time of their transfer, to develop a real status of the suspect in the criminal proceedings. French Code of Criminal Procedure (92).
37. In the light of the above, the CNCDH considers that the European requirements require no longer to condition the implementation of the defence rights to the sole existence of a measure of constraint as is done to date on the Code of Criminal Procedure (93), the Court of Cassation (94) and the Constitutional Council (95). It therefore favours the consecration of a suspect's status (96). In these circumstances, the conflicting phase of the investigation would be mandatory upon notification of suspicion by a judicial police officer or the prosecutor's office, in the event of plausible reasons to assume that a person has committed or attempted to commit a crime or offence (97). The lateness of the notification of suspicion, which would have an unfortunate consequence of deferring the exercise of the rights of the defence, could be sanctioned by a textual nullity.
38. The consecration of a suspect's status will involve a real revolution in defence rights at the stage of the investigation in that the person being freely auditioned (see CPC 62, 73 and 78), but nevertheless suspected, must be notified of all his rights, without exception (98). Thus framed, the free hearing will lose its specificity so described (99) in that it will no longer be a measure to hear a person suspected by depriving it of the guarantee of rights recognized in custody on the pretext that it is not held against its will (100).
39. For the CNCDH, the notification of suspicion should necessarily be accompanied by the notification to the suspect of all his rights, i.e. and independently of any deprivation of liberty:
- the right to be informed of the date and place alleged of the facts and their qualification, within the meaning of the provisions of the Directive of 22 May 2012 on the right to information in criminal proceedings (101);
― the right to be assisted by an interpreter if the suspect is a foreign national (102), and this is derived from Article 2 of the Directive of 20 October 2010 on the right to interpretation and translation in criminal proceedings;
- the right to be immediately assisted by a lawyer (see infra), if necessary retributed through legal aid;
- the right to silence and the right not to incriminate themselves (art. 6 of the EHRC) (103);
- right to be assisted by a sign language interpreter.
40. In the event of deprivation of liberty, the suspect should also be notified:
the right to be informed of the reasons for deprivation of liberty (104) and its concrete terms (duration, extension, etc.);
― the right to free access to the documents of the file (see infra) allowing the regularity of the deprivation of liberty to be monitored (105);
the right to prevent a close person and his employer;
- the right to prevent, communicate and correspond with the consular authorities of the State of which he is a national (106);
the right to be examined by a doctor;
– the right to request that a deprivation of liberty be terminated (in the case of an extension) or to challenge its legality.
41. In accordance with the provisions of the Directive of 22 May 2012 on the right to information in criminal proceedings, suspects deprived of their liberty must be given a statement of rights, written in an understandable manner, "to help them to seize their rights" (art. 4 and considering No. 22).
2. Guarantee concrete and effective defence rights to any suspect
42. The CNCDH intends to insist on the fact that most of the criminal cases are now being reviewed, at the stage of the investigation, according to a somewhat contradictory procedure, in which the rights of persons are reduced and the defence represented in special measures such as custody (107). However, as well as the Constitutional Council usefully clarifies, custody has in practice become the main stage of the constitution of the case file for the judgment of the person involved, including for complex or particularly serious facts (108).
43. In these circumstances, it is imperative that the provisions of Code of Criminal Procedure with respect to the criminal investigation, the European minimum standards are specified that, according to the European Court, "the fairness of the procedure requires that the accused be able to obtain the wide range of interventions that are specific to the council. In this regard, the discussion of the case, the defence organization, the search for evidence in favour of the accused, the preparation of interrogations, the support of the accused in distress and the control of conditions of detention are fundamental elements of the defence that the lawyer must freely exercise" (109). Thus, the rights of defence must be fully guaranteed as long as the fundamental reason for the effective assistance of a lawyer at this procedural point lies in the guarantee of the right not to contribute to his own criminality (110).
44. For the CNCDH, in order to fully realize the balance of the rights of the parties, the suspect must, upon notification of suspicion, have immediate access to a lawyer, as outlined in the Directive of 22 October 2013 on the right of access to a lawyer in criminal proceedings (111). The lawyer must immediately be able to exercise the fullness of his prerogatives (112), mainly:
- the possibility of a confidential pre-custodial interview (113) and its presence during all of this coercive measure, including during interrogations or hearings, with the possibility of taking notes, asking to intervene and asking questions (114);
- its active participation in all investigative acts (searches, trips to the premises, identification sessions of suspects, witness hearings, confrontations, various expertise, etc.) (115) with the possibility, to take notes, to ask to intervene and to ask questions;
― full access to the investigation file (116), being recalled that the European Court considers that the opportunity for the human rights defender to consult the documents of the proceedings takes part in the right of the custodian to the effective assistance of a lawyer, except to significantly hinder the possibility that he is given to advise his client (117);
― the possibility of requesting the prosecutor to carry out additional investigations (118) and to file with the judge of freedoms in case of refusal;
- the possibility of requesting the release of the suspect during the extension of the custody.
45. With respect to the suspect who refuses (119) or is unable to be assisted by a lawyer, the latter two prerogatives should also be recognized in the same procedural conditions. On the other hand, it cannot be the same for full access to the file (120), an extremely controversial issue since the Criminal Chamber found that the lack of communication of all documents of the record provided for in section 63-4-1 of the CPC is not inconsistent with the provisions of section 6.3 of the EHRC (121). As for Article 7.1 of the Directive of 22 May 2012 on the right to information in criminal proceedings, it provides that the suspect without a lawyer must be able to consult "the documents relating to the case in question held by the competent authorities which are essential to effectively challenge in accordance with national law the legality of arrest or detention". In this regard, it should be recalled that the record of persons held in police custody includes three kinds of minutes: those relating to the hearings of the suspect, those relating to the investigation operations (searches, etc.) and those relating to the conduct of the police custody, which detailedly describe the implementation of the various rights of the guard in custody. The suspect who, unlike the lawyer, is not subject to any legal or ethical obligation of secrecy (122) cannot, for obvious reasons of security and effectiveness of the investigation (123), have direct access to the first two categories of minutes that relate to the merits of the case, except, of course, his or her own hearings that he must sign. But it must be able to consult those in the third category that relate to the conduct of a custodial measure and which allow for the regularity of the measure (art. 64 of the CPC) (124). This restriction is not likely to affect the right to a fair trial (art. 6 of the EHRC), whose requirements are the subject of a "global assessment" of the entire trial in question (125), recalling that the person prosecuted has direct access to the entire case at the trial stage (126) and that a bill under discussion extends this possibility to the trial phase. In addition, Article 7.2 of the Directive of 22 May 2012 on the right to information in criminal proceedings clearly states that the access of the suspect to the case must be "unlesson a court is required to rule on the merits of the charge." In these circumstances, in order to strike a balance between the guarantee of the rights of the suspect and the effectiveness of the criminal response, the CNCDH considers that the suspect should be able to access only the documents relating to the conduct of the deprivation of liberty measure.
46. With regard to the principle of effectiveness of investigations, temporary restrictions on one or more of these prerogatives may, at the request of the public prosecutor, be authorized by the liberties judge for compelling reasons strictly defined by law. The concept of emergency referred to above could serve as a framework for such limitations. It is still very close to the provisions of Article 3.6 of the Directive of 22 October 2013 on the right of access to a lawyer in criminal proceedings that limit two compelling grounds for temporary restriction on this right (128). However, the CNCDH considers that any restriction on the effective assistance of the lawyer from the outset of the custody, and before the commencement of the interrogation, necessarily affects the substance of the fundamental right to defence and cannot, for this reason, be admitted. It therefore wishes to repeal paragraphs 1st, 3, 4, 5 and 6 of Article 63-4-2 of the CPC, whose implementation, which may be in practice the obtaining of confessions, is likely to violate Article 6 of the EHRC. In fact, the European Court had the opportunity to clarify that it "is in principle impermissible to the rights of defence when criminal statements made during police interrogation without possible assistance from a lawyer are used to base a conviction" (129). The same is truer in relation to article 706-88 of the CPC, which provides for a postponement of the assistance of the lawyer after the 48th hour (organized crime), or even 72nd hour (terrorism and drug trafficking) (130). This same article, which limits the free choice of a lawyer in the field of terrorism, is problematic in relation to article 6 of the EHRC which proclaims the freedom of choice of the human rights defender (131). In this regard, the CNCDH must recall that, in its view, the more serious the offence is, the more the protection of the alleged innocent suspect is imposed and the reiteration of its firm opposition to the maintenance of such derogatory regimes (132), whose constitutionality is still questionable (133).
3. Allow the police to effectively conduct the conflicting investigation
47. On the one hand, the adversarial phase of the investigation should also be subject to the principle of celerity, i.e. a legal period of six months renewable by the liberties judge upon request of the public prosecutor. On the other hand, the CNCDH is well aware of the fact that the consecration of a suspect's status is likely to result in a considerable overload of work for the police and gendarmes responsible for drafting the minutes and for forming the procedures. Under these conditions, a reflection must be initiated in the sense of a simplification and modernization of the modalities for the formation of investigation files. Therefore, it may be considered to conduct sound recordings of procedures relating to simple cases (susceptible to give rise to a non-response or third-track classification), with the possibility of a written transcript upon request from the prosecutor, the suspect or the person who claims to be a victim.
(Adoption: 22 votes "for", one vote "against", 9 abstentions.)
