Any person placed under formal investigation (mis en examen)—that is, a person against whom the investigating judge considers there to be serious and consistent evidence suggesting that they participated, either as a principal offender or as an accomplice, in the commission of a felony (crime) or a misdemeanour (délit)—is presumed innocent and, as a general rule, remains at liberty.

However, where required for the purposes of the investigation or as a security measure, the following measures may be imposed:

• Judicial supervision (contrôle judiciaire);
• If judicial supervision is insufficient, house arrest with electronic monitoring;
• If house arrest with electronic monitoring is insufficient, placement in pre-trial detention (see Article 137 et seq. of the French Code of Criminal Procedure).

Conditions for Placement in Pre-Trial Detention

Pre-trial detention may only be ordered as an exceptional measure by the Judge for Liberties and Detention (Juge des libertés et de la détention – JLD) where:

• The person under formal investigation faces a sentence of at least three years' imprisonment, or has deliberately failed to comply with the obligations imposed under judicial supervision or house arrest with electronic monitoring; and

• It has been established that pre-trial detention is the only means of achieving one or more of the following objectives, and that these objectives cannot be achieved through judicial supervision or house arrest with electronic monitoring:
  
  To preserve evidence or material proof necessary for establishing the truth;
  To prevent pressure from being exerted on witnesses, victims, or their families;
  To prevent collusion between co-offenders or accomplices;
  To protect the person under formal investigation;
  To ensure that the person remains available to the judicial authorities;
  To put an end to the offence or prevent it from being repeated;
  To bring an end to the exceptional and continuing disturbance to public order caused by the seriousness of the offence, the circumstances in which it was committed, or the extent of the harm it caused.

Any order placing a person in pre-trial detention or extending such detention must state the reasons on which it is based and may only be issued following a public adversarial hearing held in the presence of the Public Prosecutor and the person under formal investigation, who must be assisted by a lawyer.

Note: If a person is detained following a criminal conviction and lodges an appeal against that conviction, they remain detained under the legal regime governing pre-trial detention until the appeal hearing before the Court of Appeal. During this period, they may apply for release.

Duration of Pre-Trial Detention

Pre-trial detention may not exceed a reasonable period, having regard to the seriousness of the alleged offence and the complexity of the investigations required to establish the truth.

1. Duration of Pre-Trial Detention in Misdemeanour Cases

In misdemeanour (délit) cases, pre-trial detention may not exceed four months.

However, where the person under formal investigation has previously been convicted of a felony (crime) or sentenced to more than one year of unsuspended imprisonment, and the offence currently prosecuted carries a maximum sentence of five years' imprisonment or less, pre-trial detention may be extended for an additional period of four months. This extension may be renewed, but the total period of pre-trial detention may not exceed one year.

The total period of pre-trial detention may be extended to two years where the alleged offence was committed outside French territory or concerns certain specific offences, such as drug trafficking, terrorism, criminal conspiracy, or procuring. Where investigations must continue and the release of the person under formal investigation would create a particularly serious risk to the safety of persons or property, the Investigation Chamber may extend this two-year period by an additional four months.

2. Duration of Pre-Trial Detention in Felony Cases

In felony (crime) cases, pre-trial detention may not exceed one year.

However, upon expiry of that period, the Judge for Liberties and Detention may extend the detention for renewable periods of six months.

A person under formal investigation may not remain in pre-trial detention for more than two years where the maximum sentence is less than twenty years' imprisonment, or more than three years where the maximum sentence is twenty years' imprisonment or more. Where the offence was committed outside French territory, these limits are increased to three and four years respectively.

The maximum duration of pre-trial detention is four years where the person is prosecuted for certain offences, including drug trafficking, terrorism, procuring, extortion, or an offence committed by an organised criminal group.

By way of exception, where investigations must continue and the release of the person under formal investigation would create a particularly serious risk to the safety of persons or property, the Investigation Chamber may extend these time limits by an additional four months, renewable once.

Appeals Against Pre-Trial Detention Orders

Orders placing a person in pre-trial detention or extending such detention may be appealed before the Investigation Chamber within ten days of notification or formal service of the decision.

A person held in pre-trial detention may also apply for release at any time.

After the Proceedings: Compensation for Wrongful Pre-Trial Detention or Credit for Time Served

If the proceedings ultimately result in a dismissal of the case, a discharge, or an acquittal, the former detainee may apply to the First President of the Court of Appeal for compensation for the harm suffered. The decision may be appealed before the National Commission for Compensation for Pre-Trial Detention, attached to the French Court of Cassation (see Articles 149 et seq. of the French Code of Criminal Procedure).

If the proceedings result in a conviction, the entire period spent in pre-trial detention is credited against the sentence to be served (see Article 716-4 of the French Code of Criminal Procedure).

Your Criminal Defense with Maître Lois Pamela LESOT

Are you, or one of your loved ones, at risk of being placed in pre-trial detention, or already detained? Consult a lawyer: Maître Lois Pamela LESOT – +33 6 52 02 54 42 – lesot@loispamelalesot.com

The firm represents clients throughout every stage of criminal proceedings, from police custody to trial and any subsequent proceedings, including applications for the expungement of criminal records.

Article date: April 4, 2023 | By: Lois Pamela LESOT