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Judicial control, pre-trial detention: the preeminence of individual liberties over the powers of the prosecution during the pre-criminal trial phase.

The firm obtained a ruling before the Court of appeal of Paris (Chambre de l’instruction)  limiting the powers of the Public Prosecutor to request the placement under judicial control of a person indicted, or under pre-trial detention, before the criminal court trial.

In this case, Mr X was initially indicted and placed under judicial supervision in a criminal case, not for participation in or complicity with the crime, but for related “délits” (lesser offence)s which he contests.

By order of 8 December 2022, the investigating judge had ordered his arraignment to the Criminal Court for these délits and had mentioned in his order that “the judicial supervision of Mr. X remains enforceable“. He did not issue a separate order for the purposes of this continued judicial supervision. Neither the public prosecutor nor Mr. X appealed against the order of 8 December 2022.

However, if, in the case of accused persons referred to the criminal Court for a crime, the pre-trial detention or judicial control continue to have their effects as of right, in accordance with the provisions of Article 181 of the Code of Criminal Procedure (seventh and fifth paragraphs, respectively:  “If the accused is remanded in custody, the detention order issued against him or her shall remain enforceable and the person concerned shall remain in custody until his or her trial by the  Court…” and “Judicial control or house arrest with electronic surveillance to which the accused is subject shall continue to produce their effects” – this is not the case with regard to persons indicted for a délit. In such cases, the sixth paragraph of Article 181 of the Code of Criminal Procedure provides that “the pre-trial detention, house arrest with electronic surveillance or judicial supervision of persons referred for a related délit shall cease, unless the provisions of the third paragraph of Article 179 are applied” (i.e., if the investigating judge issues a separate, specially motivated order).

In the present case, in the absence of a separate order and a fortiori a specially motivated order maintaining him under judicial control, Mr. X was free, and not subject to any obligation of judicial control, even though the indictment order wrongly stated the opposite.

He therefore requested the return of his passport in order to visit his sick parents abroad, an intention of which he had already informed the courts in the context of a prior application for partial release from judicial control.

The passport was not returned. In contrast, the public prosecutor’s office submitted a request to the Court of appeal for a new placement under judicial control.

This request had the appearance of admissibility, based on the combination of Articles 139, 141-1 and 148-1 of the Code of Criminal Procedure, which means, in simple terms, that the court of appeal (chambre de l’instruction) is, pending the trial, vested with the power previously vested in the investigating judge to place the defendant under judicial control “at any stage of the investigation” or to impose new obligations “at any time“.

This was not to be the position of the Court of appeal. In a judgment of 9 January 2023 (Paris Court of Appeal, Pole 7, Dossier 2022/08056), it ruled that :

The admissibility of the application must indeed be examined.

Indeed, although the power conferred on the investigating judge by Article 139 of the Code of Criminal Procedure to order the placement of a person under judicial control in any state of the investigation belongs, under the terms of Article 141-1 of the said Code, in any case, to the competent court according to the distinctions of Article 148-1 of the Code of Criminal Procedure, it nevertheless appears in the present case that :

  • The investigation is no longer in progress since the indictment order is final, – the investigating judge is consequently relieved of jurisdiction,
  • if the accused or accused persons can refer to the chambre de l’instruction” after the indictment, for example for a request for release, modification or release from judicial supervision, this is only in order to guarantee individual freedoms,
  • if the public prosecutor can likewise submit a request to the “chambre de l’instruction”, it is only to sanction non-compliance with a judicial control order made before the end of the investigation, or to request an extension of detention on an exceptional basis, by virtue of a text that expressly provides for this,
  • On the other hand, while no text provides for such a referral to request placement under judicial control, granting such a request would be tantamount to giving the public prosecutor’s office the possibility of exceeding the time limit for appealing an indictment.

The application should therefore be declared inadmissible.

The practical applications of this judgment will be rare: in general, the investigating judge’s settlement orders (arraignment to the tribunal correctionnel or criminal court) leave no doubt as to the survival of security measures. When they do occur, they will nevertheless hold important consequences: this is naturally the case for Mr. X, whose judicial control has been lifted, and it would have been even more so for a person wrongly held in pre-trial detention.

Above all, in terms of principles, this ruling by the court of appeal has the immense merit of reminding us that individual freedoms, but also the balance of rights between the prosecution and the defense, a corollary of a fair trial, must remain cardinal principles of criminal laws.

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Alexandre-M. BRAUN receives clients at his law firm, by appointment only. He can be reached, preferably, through the form.