French Code of Criminal Procedure
In forceThe liberty and custody judge to whom an order is referred by the investigating judge seeking the detention of the person under investigation shall cause that person to appear before him, assisted by his lawyer if one has already been appointed, and shall proceed in accordance with the provisions of this article.
In the light of the information in the case file and after having, if he or she considers it useful, taken the observations of the person concerned, this magistrate shall inform the person under investigation whether he or she intends to place him or her in pre-trial detention.
If he or she does not intend to remand the accused person in custody, the investigating magistrate, after ordering that the accused person be placed under judicial supervision, shall proceed in accordance with the last two paragraphs of Article 116 relating to the declaration of address.
If the court is considering ordering that the person be remanded in custody, it shall inform the person that its decision may only be made after an adversarial hearing and that the person has the right to request time to prepare his or her defence.
If the person does not already have a lawyer, the judge will inform them that they will be defended at the hearing by a lawyer of their choice or, if they do not choose a lawyer, by a court-appointed lawyer. The chosen lawyer or, in the case of a court-appointed lawyer, the President of the Bar Association, is notified by any means without delay. If the chosen lawyer is unable to attend, he will be replaced by a court-appointed lawyer. Mention of these formalities is made in the minutes.
The liberty and custody judge rules after an adversarial debate during which he hears the public prosecutor who develops his submissions made in accordance with the third paragraph of article 82 followed by the comments of the person under investigation and, where applicable, his or her lawyer. If the person under investigation, who has been notified of his or her right to remain silent about the charges against him or her, is of age, the adversarial debate takes place and the judge rules in open court. However, the Public Prosecutor, the person under investigation or their lawyer may object to this public hearing if the investigation relates to acts mentioned in articles 706-73 and 706-73-1 or if it is likely to hinder the specific investigations required by the inquiry, to undermine the presumption of innocence or the serenity of the proceedings or to harm the dignity of the person or the interests of a third party. The judge rules on this objection in a chambers hearing by means of a reasoned order, after having heard the observations of the public prosecutor, the person under investigation and his or her lawyer. If this objection is upheld or if the person under investigation is a minor, the debate takes place and the judge rules in a cabinet hearing.
However, the liberty and custody judge may not immediately order detention when the person under investigation or their lawyer requests time to prepare their defence.
In this case, he may, by means of an order stating the reasons with reference to the provisions of the previous 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 again and, whether or not the person is assisted by a lawyer, shall proceed as described in the sixth paragraph. If he does not order the person to be remanded in custody, he shall be released automatically.
To enable the examining magistrate to carry out checks on the personal situation of the person under investigation or on the facts of which he or she is accused, where these checks are likely to enable the person concerned to be placed under judicial supervision or under house arrest with electronic surveillance, the liberty and custody judge may also decide of his or her own motion to prescribe, by reasoned order, that the person under investigation be remanded in custody for a specified period, which may not exceed four working days, until the adversarial hearing has taken place. If there is no discussion within this period, the person is automatically released. The order referred to in this paragraph may be appealed in accordance with Article 187-1.
Pre-trial detention is, where applicable, deducted from the duration of pre-trial detention for the purposes of Articles 145-1 and 145-2. It is treated as pre-trial detention within the meaning of article 149 of this Code and article 24 of the Criminal Code (article repealed, cf. article 716-4 du code de procédure pénale).
