(Update of 14 February 2023: > On DNA and biometric samples, CJEU judgment 26 Jan. 2023, case C-205/21)
The exercise of the right to silence by the detainee or respondent speeds up the management of the case, allows more time to prepare the defence, and avoids the production of a confession where there is no evidence or nothing else to say.
At a time when the fragmentation of society makes communication between individuals more difficult, the exercise of the right to silence by the person in custody enables him or her to guarantee the right of access to the case file, and thus to be better informed of the charges against him or her, and to avoid errors of assessment.
The remark is particularly relevant during police custody in police premises as part of a preliminary investigation or an investigation procedure, procedures which a priori concern cases of a certain complexity.
The lawyer does not have access to the file and does not know the evidence against him
Indeed, in the context of police custody, the person in police custody is informed of his rights and the qualification of the facts with which he is charged, but without any details on the evidence that has been collected.
The lawyer also does not have access to the evidence file and therefore cannot give specific advice to his client.
The latter can therefore invoke his right to silence and remain silent in front of the investigators, at least as long as his lawyer does not have access to the file, or has not had the time to have the file studied in depth (at least for files of a certain complexity).
This right to silence is a constitutional right deriving from the right not to incriminate oneself following coercive measures, and from the right to a fair trial.
The right to silence must be recalled by the investigators themselves.
A constitutional right
The right not to "self-incriminate" is grounded in Article 14.3 of the International Covenant on Civil and Political Rights, as well as in the case law of the European Court of Human Rights (ECHR) on 6 of the Convention (ECHR 25 Feb. 1993, No. 10828/84, Funke v. France) (ECHR 21 Dec. 2000, No. 34720/97, Heaney and McGuinness v. Ireland), and in the European Directive 2012/13/EU relating to the right to information in the context of criminal proceedings, and of course in the code of criminal procedure during the hearing of the suspect placed in police custody (art. 63-1) or heard freely (art. 61-1), during the investigation as regards the indictment (art. 116) or placement under the status of assisted witness (art. 113-4), during the presentation before the prosecutor of the Republic in application of article 393, as well as before the trial courts, in contraventional (art. 535), tort (art. 406) or criminal (art. 32) matters 8), as well as articles 396 (translation of a defendant before the judge of freedoms and detention in the context of an immediate appearance), 199 (appearance of the defendant before the investigating chamber), 148- 2 (hearing of a defendant or an accused within the framework of an application for release from judicial review or release), and 12 of the order of February 2, 1945 (hearing of a minor before the services of the Judicial Protection of Youth). The Constitutional Council sees in this a guarantee of the presumption of innocence provided for in article 9 of the declaration of the rights of man and of the citizen.
Investigators seek confessions
Placement in police custody is only possible if the person incurs a prison sentence.
The suspicion leveled against him is therefore necessarily serious, and the least you can do is for him to have access to the file.
Sometimes the suspect, caught in a Stockholm syndrome, will tend to want to please the investigators, especially if they have a sympathetic and reassuring attitude, in the hope of quickly escaping his misfortune, and even though he is in cell after having been able to undergo a muscular arrest.
He will think that cooperating will be able to release him more quickly from his suffering (custody is stressful), and that it would be unreasonable not to be sympathetic in turn towards the investigators "since he has nothing to reproach".
He will therefore make confessions which are not always appropriate, or even which do not concern the precise subject of the investigation, and may aggravate his case, even though the file of the investigators may be thin or relate to other facts.
It is therefore recommended to follow the advice of your lawyer, and to exercise your right to silence if necessary, even if it means making a statement admitting to the facts and then exercising the right to remain silent.
This can also help to shorten the length of police custody and lengthy stringy hearings (where the suspect speaks but without conviction, and where the investigators stall), at least if the other investigative acts are finished (hearings of the others kept in custody in the event of offenses in meetings, searches, telephone and video exploitation, etc.).
Indeed, these acts may possibly justify the extension of police custody until they are completed.
But investigators may be tempted to extend to sanction, to put pressure.
Police custody, a coercive measure, is subject to legal conditions
Police custody is in all cases only justified under certain conditions, set out in Article 62-2 of the Code of Criminal Procedure:
"Custody is a measure of constraint decided by a judicial police officer, under the control of the judicial authority, by which a person against whom there are one or more plausible reasons to suspect that he has committed or attempted to commit a crime or an offence punishable by imprisonment is kept at the disposal of investigators.
This measure must be the only way to achieve at least one of the following objectives:
1° To allow investigations involving the presence or participation of the person to be carried out;
2° Guarantee that the person is brought before the public prosecutor so that the latter can assess the follow-up to the investigation;
3° Prevent the person from modifying the evidence or material evidence;
4° Prevent the person from putting pressure on the witnesses or the victims as well as on their family or relatives;
5° Preventing the person from consulting with other persons who may be their co-perpetrators or accomplices;
6° Guaranteeing the implementation of measures intended to put an end to the crime or misdemeanor.”
On the extension of police custody
II. – The duration of police custody may not exceed twenty-four hours.
However, police custody may be extended for a further period of up to twenty-four hours, with the written and reasoned authorisation of the public prosecutor, if the offence that the person is suspected of having committed or attempted to commit is a felony or a misdemeanour punishable by a prison sentence of one year or more and if extending the measure is the only way to achieve at least one of the objectives mentioned in 1° to 6° of Article 62-2 [...].
The public prosecutor may make his or her authorisation conditional on the person's appearance before him or her. This presentation may be carried out by the use of an audiovisual means of telecommunication.
What happens next? What is the direction of the case?
If the maximum term of imprisonment provided for by law is at least two years, the public prosecutor, when it appears to him or her that the charges are sufficient and that the case is ready for trial, may, if he or she considers that the elements of the case justify an immediate appearance, bring the accused before the court immediately.
In the case of a flagrant offence, if the maximum term of imprisonment provided for by law is at least six months, the public prosecutor, if he or she considers that the elements of the case justify an immediate appearance, may bring the accused before the court immediately.
The defendant is held until his appearance in court, which is scheduled for the same day; he is taken under escort to the court.
An “information” is an investigation procedure carried out by an investigating judge
The rate of opening of investigation procedures (known as “information”) on the procedures for the elucidation of offenses is very low.
The investigation is compulsory only for crimes and can only be opened for misdemeanors for which the penalty incurred is equal to or greater than three years.
Any person charged, presumed innocent, remains free.
However, because of the needs of the investigation or as a security measure, he or she may be subject to one or more obligations of judicial supervision or, if these prove insufficient, to house arrest with electronic surveillance.
Exceptionally, if the obligations of judicial supervision or house arrest with electronic monitoring do not allow these objectives to be achieved, he or she may be remanded in custody.
Subject to the provisions of Article 137, pre-trial detention may be ordered or extended only in one of the following cases
1° The person charged incurs a criminal penalty;
2° The person under investigation is liable to a correctional sentence of three years' imprisonment or more.
Pre-trial detention may also be ordered under the conditions set out in Article 141-2 where the accused person voluntarily evades the obligations of judicial supervision or house arrest with electronic surveillance.
The pre-trial investigation is supposed to complement the evidence and the study of personalities in complex cases.
Under what conditions can the right to silence be exercised before the investigating judge? In the context of an investigation or an examination at first appearance, exercising the right to silence, possibly accompanied by a statement of acknowledgement of the facts, may also make it possible to speed up the processing of the case or to obtain more time to prepare the defence.
In the case of an investigation procedure (still called "information"), it is Article 144 of the Code of Criminal Procedure that is pleaded before the liberty and custody judge, possibly with an incursion on the substantive debate on the facts:
"Pre-trial detention may be ordered or extended only if it is shown, in the light of the precise and detailed elements of the proceedings, that it is the sole means of achieving one or more of the following objectives and that these objectives cannot be achieved by placing the person under judicial supervision or by assigning him or her to house arrest with electronic surveillance :
1° Preserve the proofs or material indices which are necessary for the manifestation of the truth;
2° To prevent pressure on witnesses or victims as well as on their families;
3° Prevent fraudulent consultation between the person charged and his co-authors or accomplices;
4° Protect the person under investigation;
5° Ensure that the person under investigation is kept at the disposal of the justice system;
6° To put an end to the offence or prevent its recurrence ;
7° Put an end to the exceptional and persistent disturbance of public order caused by the seriousness of the offence, the circumstances in which it was committed or the extent of the damage it caused. This disturbance may not be the result of the media coverage of the case alone. However, this paragraph shall not apply in criminal cases.
“[…] the liberty and detention judge cannot immediately order detention when the person under investigation or his lawyer requests time to prepare his defence.
In this case, he may, by means of an order reasoned by reference to the provisions of the preceding paragraph and not subject to appeal, prescribe the incarceration of the person for a specified period which may in no case exceed four working days. Within this period, the judge shall summon the person to appear again and, whether or not he or she is assisted by a lawyer, shall proceed as described in the sixth paragraph. If the court does not order that the person be remanded in custody, the person shall be released automatically.
In order to allow the investigating judge to carry out verifications relating to the personal situation of the accused or to the acts of which he or she is accused, when such verifications are likely to allow the person concerned to be placed under judicial supervision, the liberty and custody judge may also decide ex officio to prescribe, by reasoned order, the provisional imprisonment of the accused for a specified period which may not exceed four working days until the hearing of the parties. In the absence of a debate within this period, the person shall be released automatically. The order referred to in this paragraph may be appealed against in accordance with Article 187-1. [...]"
On data encryption: https://roquefeuil.avocat.fr/les-mots-de-passe-et-le-conseil-constitutionnel-lavocat-en-droit-informatique-analyse/
See also: The framework for the processing of personal data by telephone operators