Fédération des barreaux d’Europe
THE FRENCH SENATE AND POLICE CUSTODY : A COMPARATIVE STUDY
The French Upper House, the Senate, has just published a comparative study about the conditions of police custody in six Member States : Germany, England and Wales, Belgium, Denmark, Spain and Italy. Please find this report enclosed as an annexe.
It allows us to observe the different ways of treating suspects held in police custody in these six European Union countries.
The lawyer is present at all times in Germany. The Criminal Code lays down that the suspect has the right to silence and may consult a lawyer of his choice even before interrogation. Police interrogation may be suspended for this reason.
The period in police custody is limited to a maximum of 48 hours.
In England and Wales, a person held in custody may consult a lawyer at any moment. All the same, if the lawyer’s attitude upsets with the smooth course of the interrogation, they may be excluded. This implies specifically that the lawyer is replying on behalf of the person under interrogation. Of course, the police are required to justify the exclusion of the lawyer before a Judge.
The period of police custody is set at 24 hours but may be prolonged to 96 hours.
In Denmark, suspects held in police custody have the right not to answer police questions. The lawyer may be contacted straight away and may be present at interrogation after having spoken to his client.
However there is one very remarkable provision. The police may oppose the person held in custody’s choice of lawyer. In this case, the person concerned may choose another. This provision is rather astonishing in the light of the European Convention on Human Rights. In this way, the police might eventually choose the lawyer they prefer by refusing in turn all the lawyers chosen by the suspect.
The period for police custody is 24 hours. Its prolongation may be ordered by a Judge if the offense is punishable by a prison term of at least 18 months.
According to the Spanish Constitution and the Code of Penal Procedure, the lawyer should be present during interrogation. The lawyer may demand a medical examination for his client and may obtain the minutes of the procedural acts where they have been present.
The maximum period for police custody is 72 hours.
In Italy, somebody in police custody has the right to a lawyer from the time of his arrest and in all procedural acts.
However the Minister may in exceptional cases decide that the lawyer may not converse with his client from the time of arrest onwards.
The period in police custody cannot exceed 96 hours. The State Council’s Office may demand a prolongation within 48 hours.
In Belgium, no text allows for the presence of a lawyer during police custody. During preliminary interrogation prior to remand, the suspect may not enjoy the assistance of a lawyer either. It is only after being placed on remand that they can benefit from the services of a lawyer.
The period in police custody is laid down by the Constitution and is limited to 24 hours. However it is a special system.
Let us recall how in France the lawyer may intervene from the first to the twentieth hour in police custody. They are not present at the interrogation and cannot have access to the dossier. They may nevertheless hold confidential discussions with their client and may record their observations in the register provided for this purpose (state of health, maltreatment …).
The European Convention on Human Rights has ruled several times on these matters and has in particular laid down that confessions made by a person in police custody while his lawyer is absent may be debated and contested.
Lawyers should stand together so that this period in police custody does not fall outside legal constraints, and so they can act for people in police custody, talking to them, having access to proceedings, participating in interrogation sessions and obtaining a transcript, all in accordance with the rights guaranteed by the European Convention.
The rights of people in police custody and the period for police custody should be laid down in conventions so that we do not meet with constant flux as in certain countries, particularly France.
Michel BENICHOU, President of the European Bars Federation
Garde à vue Etude comparée - Sénat