Prior to April 15 guards to view without a lawyer may be challenged

Prior to April 15 guards to view without a lawyer may be challenged



The Court of cassation ruled Tuesday for the annulment of the acts of many guards to view conducted without the presence of counsel before April 15, 2011.AFP/FRANCOIS GUILLOT





The Court of cassation found Tuesday 31 May that the guards to view conducted without assistance of counsel before April 15, 2011 could be cancelled. At this date, the Court of cassation had decided to authorize, with immediate effect, the presence of counsel during interrogation of the mis en cause. This decision means that in a statement, the persons concerned will be able to plead the nullity of the minutes of the hearing made in custody in the last six months if they could not be assisted by a lawyer.

Thousands of procedures could be questioned, which does not mean that all of the prosecution would be invalidated because there may be from a suspect to evidence that the actions from custody. Moreover, any request for cancellation is not automatically admissible, since criminal records already the subject of a removal order to the Court of Assizes are not affected.

Records already tried in first instance and to be reviewed on appeal are not affected either. In addition, direct cancellations are limited to the minutes of the hearing of the suspects and are not, for example, searches. But if elements of investigation result of the hearings, they can also be declared void.

"A DECISION OF CAPITAL IMPORTANCE"

This decision comes on the eve of the final implementation of the reform of custody making the presence of counsel, with presence mandatory interrogation and access to the file. So far he could not see his client only thirty minutes at the start of the custody without access to the folder. April 15, the plenary Assembly of the Court had decided an immediate application of the guarantees laid down by the European Convention of human for a "fair trial"rights, including the presence of a lawyer and the right to silence. This decision led to an immediate implementation of the main provisions of the act reforming custody "à la française", adopted by Parliament three days earlier.

For lawyers, all acts (statements, confessions...) recorded at guards to view prior to April 15 out of their presence are tainted void. This decision of the Criminal Chamber of the Court of cassation occurs after examination of two records on Narcotics Affairs.

Me Patrice spinosi, lawyer of one of the two records, had asked the Court to make a decision detailed, able "serve as a grid, guide, for the courts of the bottom" already seized of cancellation requests. Must be able to say "what acts may be subject to nullity, reject what acts, what actions keep", he pleaded. After the decision of the Court, Mr. Spinozi welcomed "a decision of vital importance" and "the culmination of the movement started for months to bring the law in custody".

REFORM ALREADY QUESTIONED

Coercive police detention which may be up to 48 hours in common law, four days for drug trafficking, organized crime and terrorism, custody unmarked these past ten years, from 336 000 in 2001 to more than 792 000 in 2010, excluding traffic offences. In a series of cases, the Court of cassation States that this police method, almost unique basis of more than 95% of criminal cases in France, is not in conformity with the European Convention on human rights.

From June 1, the presence of counsel will be theoretically compulsory, but reform is already questioning, so that the means are lacking for the poorest. Trade unions of magistrates and lawyers criticize the derogations which leave much latitude to prosecutors for lawyers, and the inadequacy of financial resources for aid to the poor litigants. The fact that the authority of custody control Prosecutor, magistrate linked to political power by its Statute, is also criticized.