What decisions can the prosecutor make after police custody?

Depending on the evidence gathered by investigators and the seriousness of the alleged offence, several decisions may be taken following police custody. Each of these decisions carries significant legal consequences for the person concerned.

Pursuant to Article 40-1 of the Code of Criminal Procedure, the Prosecutor may decide to:

• To dismiss the case without further action, in particular if the evidence is insufficient or the offence is not established
• To request a “défèrement”, i.e. to have the person brought before the Prosecutor and, where applicable, before a judge (in particular the Judge of Freedoms and Detention or the Investigating Judge), in accordance with the procedure set out in Article 393 of the Code of Criminal Procedure
• To request the opening of a judicial investigation, which entails bringing the person before an Investigating Judge and, potentially, their formal indictment (mise en examen) in accordance with Articles 80 and 80-1 of the Code of Criminal Procedure.
• To initiate proceedings, that is to summon the person before a court, either through immediate appearance under Article 395 of the Code of Criminal Procedure, or by summons by official report provided for in Article 394 of the Code of Criminal Procedure.
• To implement an alternative procedure to prosecution, such as criminal mediation, a penal composition, or a formal warning (where still applicable), on the basis of Articles 41-1, 41-1-1 and 41-2 of the Code of Criminal Procedure.
• To continue the investigation
• To release the person pending a decision on further action, with the possibility of subsequent summons (either for a new period of police custody or for a hearing or an alternative measure to prosecution), or to end police custody without immediate prosecution, without however closing the investigation

What should you do if the Prosecutor decides to place you in detention?

The legal situation may vary considerably depending on the Prosecutor’s decision, but certain principles remain constant.

Following police custody, and as long as no judicial decision has been made, the person remains presumed innocent. No conviction is recorded on their criminal record, and they may refuse to make any statement about the facts if they are heard again in connection with the same case.

As during police custody, the person may benefit from the assistance of a lawyer throughout the entire proceedings.

If no proceedings are initiated, the person may request the return of personal belongings seized during police custody.

If proceedings are initiated, the person has the right to be informed of the allegations against them, to access the case file, and to prepare their defense. In the event of a summons before a court or a judge, they must be notified of the terms of that appearance within a reasonable time.

In the event of a formal investigation (mise en examen), the person is protected by this status, which grants them a number of specific rights, in particular the right to request investigative acts or to challenge the measures taken against them.

If the person is placed under judicial supervision, under house arrest, or in pre-trial detention, they have the right to challenge these decisions or request their modification before the Investigating Chamber.

What should you do if the Prosecutor decides to place you in detention?

This decision to place a person in pre-trial detention is never taken directly by the Prosecutor, but by the Judge of Freedoms and Detention (JLD), following an adversarial hearing in the presence of the person’s lawyer.

He may also resort to other, less severe liberty-restricting measures:

• Placement under judicial supervision
• House arrest with electronic monitoring

When the judge orders pre-trial detention, the lawyer may immediately lodge an appeal against this decision. This appeal is brought before the Investigating Chamber, which re-examines the grounds for detention within a short timeframe. The detained person may also subsequently submit applications for release at any stage of the proceedings, if new elements justify it.

When another type of coercive measure is ordered, such as judicial supervision or house arrest, these decisions may also be challenged. The judge who orders them must justify their necessity, and the person concerned may request their modification or lifting.

It is therefore important to emphasize that any restrictive measure taken as part of criminal proceedings may be subject to appeal, provided that the applicable time limits are respected and that the request is well-founded. This is why the assistance of a lawyer is not only useful but often essential.

Your Criminal Defense with Maître Lois Pamela LESOT

You have been placed in police custody and are wondering about the next steps in the procedure?
Consult a lawyer: Maître Lois Pamela LESOT – 06.52.02.54.42 – lesot@loispamelalesot.com

Article date: May 26, 2025 | By Lois Pamela LESOT