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(Update of 14 February 2023: > On DNA and biometric samples, CJEU judgment 26 Jan. 2023, case C-205/21)

Exercising the right to silence of the person in custody, of the defendant, makes it possible to speed up the management of the case, to ensure better preparation time for the defence, not to produce a confession where there is no yet no proof or that there is nothing else to say.

At a time when the atomization of society makes inter-individual communication more difficult, the exercise of the right to silence by the person in custody allows him to guarantee his right of access to the file, and therefore to better know the charges brought against him. him, 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.

He 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 until he has not had 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 declaration of admission of acknowledgment of the facts, then exercising his right to silence.

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 offense punishable by imprisonment is kept at the disposal of the investigators.

This measure must be the only way to achieve at least one of the following objectives:

1° Allow the execution of investigations involving the presence or participation of the person;

2° Ensure the presentation of the person before the public prosecutor so that this magistrate can assess the follow-up to be given 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° Prevent the person from colluding with other people likely to be his co-authors or accomplices;

6° Guaranteeing the implementation of measures intended to put an end to the crime or misdemeanor.”


On the extension of police custody

Section 63

II. – The duration of police custody may not exceed twenty-four hours.
However, police custody may be extended for a further period of twenty-four hours at the most, with the written and reasoned authorization of the public prosecutor, if the offense that the person is suspected of having committed or attempted to commit is a crime or misdemeanor punishable by a prison sentence of at least one year and if the extension of the measure is the only way to achieve at least one of the objectives mentioned in 1° to 6° of the article 62-2 […]
The public prosecutor may make his authorization subject to the appearance of the person before him. This presentation can be made by using an audiovisual telecommunication means.

What happens next? What is the orientation of the file?

Section 395

If the maximum term of imprisonment provided for by law is at least equal to two years, the public prosecutor, when it appears to him that the charges brought together are sufficient and that the case is ready to be judged , may, if he considers that the elements of the case justify an immediate appearance, bring the defendant immediately before the court.

In the event of a flagrant offence, if the maximum term of imprisonment provided for by law is at least equal to six months, the public prosecutor, if he considers that the elements of the case justify an immediate appearance, may bring the immediately charged to court.

The defendant is detained until his appearance, which must take place the same day; he is escorted to 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.

Section 137

Any person charged, presumed innocent, remains free.

However, because of the requirements of the investigation or as a security measure, he may be subject to one or more obligations of judicial control or, if these prove to be insufficient, be placed under house arrest with electronic surveillance.

Exceptionally, if the obligations of judicial control or house arrest with electronic monitoring do not allow these objectives to be achieved, she may be placed in pre-trial detention.

Section 143-1

Subject to the provisions of article 137, provisional detention may only be ordered or prolonged in one of the cases listed below:
1° The person charged incurs a criminal penalty;
2° The person under investigation incurs a correctional sentence of a duration equal to or greater than three years' imprisonment.
Pre-trial detention may also be ordered under the conditions provided for in Article 141-2 when the person under investigation voluntarily evades the obligations of judicial review 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 one assert one's right to silence before the investigating judge? In the context of an investigation procedure, a first appearance interrogation, the exercise of the right to silence, possibly accompanied by a declaration of acknowledgment of the facts, can also make it possible to speed up the processing of the file or to get better defense preparation time.

With regard to an investigation procedure (also called "information"), it is article 144 of the code of criminal procedure which is pleaded before the judge of freedoms and detention, possibly with an incursion on the debate of based on the facts:

“Pre-trial detention may only be ordered or extended if it is demonstrated, in the light of the precise and detailed elements resulting from the procedure, that it constitutes the only means of achieving one or more of the following objectives and that these cannot be achieved in the event of placement under judicial supervision or house arrest with electronic monitoring:

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° Put an end to the infringement or prevent its recurrence;

7° Put an end to the exceptional and persistent disturbance to public order caused by the seriousness of the offence, the circumstances of its commission or the extent of the harm it has caused. This disturbance cannot result from the media repercussions of the affair alone. However, this paragraph is not applicable in correctional matters. »


Section 145

“[…] 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 fixed period which may in no case exceed four days. open. Within this period, he has the person appear again and, whether or not the latter is assisted by a lawyer, proceeds as stated in the sixth paragraph. If he does not order the placement of the person in pre-trial detention, the latter is automatically released.
To enable the investigating judge to carry out checks relating to the personal situation of the accused or to the facts of which he is accused, when these checks are likely to allow the person concerned to be placed under judicial supervision, the judge of freedoms and detention may also decide ex officio to prescribe by reasoned order the provisional imprisonment of the accused for a fixed period which may not exceed four working days until the adversarial hearing is held. In the absence of a debate within this period, the person is automatically released. The order mentioned in this paragraph may be the subject of the appeal provided for in 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


Update 14 February 2023: On DNA and biometric samples, the CJEU judgment 26 Jan. 2023, Case C-205/21

Article 10 of the Police-Justice Directive (EU) 2016/680 of 27 April 2016 provides:

Article 10

Processing of special categories of personal data

The processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning the sex life or sexual orientation of a natural person shall be permitted only in case of absolute necessity, subject to appropriate safeguards for the rights and freedoms of the data subject, and only:


where they are permitted under Union law or the law of a Member State;


to protect the vital interests of the data subject or another natural person; or


where the processing relates to data which are manifestly made public by the data subject.


According to the above-mentioned judgment :

The systematic collection of biometric and genetic data from any defendant for the purpose of police registration is contrary to the requirement to ensure greater protection against the processing of sensitive personal data

French law provides for the feeding of several files, which can be checked against this case law; only a few provisions are cited here for reference:

Article 706-56 of the Criminal Procedure Code provides:

II -Refusing to submit to the biological sample provided for in the first paragraph of I is punishable by one year's imprisonment and a fine of 15,000 euros.

The first paragraph of I provides:

I.-The judicial police officer may take a biological sample, or have it taken under his supervision, from the persons mentioned in the first, second or third paragraphs of Article 706-54, in order to analyse their genetic fingerprint. Prior to this operation, he or she may check or have checked by a judicial police officer under his or her control or by a specialised officer, technician or forensic engineer under his or her control, that the genetic fingerprint of the person concerned is not already registered, solely on the basis of his or her civil status, in the national automated genetic fingerprint database.

The first three paragraphs of 706-54 provide:

The automated national DNA database, placed under the control of a magistrate, is intended to centralise the genetic fingerprints from biological traces as well as the genetic fingerprints of persons convicted of one of the offences mentioned in Article 706-55 with a view to facilitating the identification and investigation of the perpetrators of these offences. The genetic fingerprints of persons prosecuted for one of the offences referred to in Article 706-55 who have been found not criminally responsible pursuant to Articles 706-120, 706-125, 706-129, 706-133 or 706-134 shall be stored under the same conditions.

The genetic fingerprints of persons in respect of whom there is serious or corroborating evidence making it likely that they have committed one of the offences referred to in Article 706-55 shall also be kept in this file on the decision of a judicial police officer acting either ex officio or at the request of the public prosecutor or investigating judge; this decision shall be noted in the file of the proceedings.

Judicial police officers may also, on their own initiative or at the request of the public prosecutor or investigating judge, have the fingerprint of any person against whom there are one or more plausible grounds for suspecting that he or she has committed one of the offences referred to in Article 706-55 matched against the data in the file, without, however, the fingerprint being kept in the file.

Finally, 706-55 provides:

The National Automated DNA Database centralises DNA traces and fingerprints relating to the following offences

1° The sexual offences referred to in Article 706-47 of the present Code as well as the offence provided for in Article 222-32 of the Criminal Code and the offences provided for in Articles 222-26-2, 227-22-2 and 227-23-1 of the same Code;

2° Crimes against humanity and crimes and offences of deliberate attacks on human life, torture and acts of barbarism, deliberate violence, threats to harm people, drug trafficking, attacks on personal freedoms, trafficking in human beings, pimping, exploitation of begging and endangering minors, as provided for in Articles 221-1 to 221-5, 222-1 to 222-18, 222-34 to 222-40, 224-1 to 224-8, 225-4-1 to 225-4-4, 225-5 to 225-10, 225-12-1 to 225-12-3, 225-12-5 to 225-12-7 and 227-18 to 227-24 of the Criminal Code, as well as the offences provided for in Articles 221-5-6 and 222-18-4 of the same Code;

3° The crimes and offences of theft, extortion, fraud, destruction, degradation, deterioration and threats of damage to property provided for by articles 311-1 to 311-13, 312-1 to 312-9, 313-2 and 322-1 to 322-14 of the Criminal Code;

4° Attacks on the fundamental interests of the Nation, acts of terrorism, counterfeiting of money, criminal conspiracy and war crimes and misdemeanours provided for in Articles 410-1 to 413-12, 421-1 to 421-6, 442-1 to 442-5, 450-1 and 461-1 to 461-31 of the Criminal Code;

5° The offences provided for in Articles 222-52 to 222-59 of the Criminal Code, Articles L. 2339-2, L. 2339-3, L. 2339-4, L. 2339-4-1, L. 2339-10 to L. 2339-11-2, L. 2353-4 and L. 2353-13 of the Defence Code and Articles L. 317-1-1 to L. 317-9 of the Internal Security Code ;

6° Offenses of receiving or laundering the proceeds of one of the offenses mentioned in 1° to 5°, provided for in Articles 321-1 to 321-7 and 324-1 to 324-6 of the Criminal Code.