Police Custody: Is a Free Interview Before the Measure Lawful?

Imagine the scene: in Beaumont-de-Lomagne, a property owner receives a call from the police. He is asked to come in for a "simple interview" as part of a preliminary investigation. He goes without constraint, thinking he is merely a witness. But during the interview, the questions become more precise, more accusatory. Suddenly, he is placed in police custody. A crucial question then arises: was the interview that preceded the police custody lawful?

This decision of the Court of Cassation of 28 June 2000 answers in the affirmative, subject to an essential condition: the rights of the person (such as the right to silence, to a lawyer, to notify a relative) must be notified as soon as the person is actually placed in police custody. But what exactly does this change for you, as an owner or tenant? And above all, how should you react if you are summoned?

In short, this decision distinguishes two phases: the free interview (without constraint) and police custody (with constraint). If you come voluntarily, the police can question you without immediately placing you in police custody. But as soon as they decide to detain you, your rights must be respected. A subtle balance that we will break down together.

The facts: a story like many that happen every day

It is October 1996. Monique Y., a resident of Castelsarrasin, is summoned by the police as part of a preliminary investigation. She presents herself without constraint, answers questions, and is finally placed in police custody several months later. The central question: is the initial interview, carried out before any coercive measure, valid?

The case goes up to the Court of Cassation, which must decide a procedural debate. On one side, the defence argues that this first interview should have been preceded by the notification of the rights of police custody (Articles 63-2 to 63-4 of the Code of Criminal Procedure). In other words, according to them, any interview of a suspect should be preceded by a formal placement in police custody. But the Court of Cassation does not agree.

The twist: the Court considers that a person who presents themselves freely can be heard without being placed in police custody, provided that, if they are subsequently placed in police custody, their rights are notified at that time. In this case, the contested interview had taken place 7 months before the placement in police custody, which excluded any irregularity. A decision that has set a precedent.

The reasoning of the court — broken down

To understand, we must go back to Article 63-1 of the Code of Criminal Procedure. This text requires that any person placed in police custody be informed immediately of their rights: the right to remain silent, the right to a lawyer, the right to notify a relative, etc. But what happens before placement? The law does not provide for anything regarding the free interview.

The Court of Cassation, in its judgment, reasons as follows: as long as the person is not detained against their will, they are not in police custody. The free interview is therefore perfectly lawful, even if it concerns facts that are imputed to them. It is only from the moment the police decide to detain them (actual placement) that the rights must be notified.

However, caution: this solution is not a blank cheque for investigators. If the person came under constraint (threat, compulsory summons), the interview could be recharacterised as disguised police custody. But in this case, Monique Y. had presented herself spontaneously. The Court therefore confirms a consistent line of case law: the custody period runs from the actual placement, not from the first interview.

What few people know is that this decision is part of a logic of proportionality. The judges seek to avoid that any interview automatically becomes police custody, which would paralyse investigations. But they also protect the rights of the defence by requiring notification as soon as liberty is deprived.

What this changes for you — concretely

For a property owner in Beaumont-de-Lomagne or a tenant in Castelsarrasin, this decision has immediate practical implications. If you are summoned by the police as part of an investigation (for example, for a neighbourhood dispute or an offence related to a lease), you should know that:

• You can be heard without being placed in police custody. This means that you are not automatically entitled to a lawyer upon arrival. But you have the right to refuse to answer and to leave at any time, as long as you are not officially detained.
• If the police decide to detain you, they must notify you of your rights immediately. Otherwise, the procedure may be annulled.
• Concrete example: In Castelsarrasin, a landlord is summoned for a complaint from his tenant for disturbance of enjoyment. He goes to the free interview, answers questions. If the police consider that he needs to be heard longer, they place him in police custody. At that moment, they must give him a document listing his rights. If they fail to do so, his lawyer may seek the nullity of the entire procedure.

If you are in this situation, you should: stay calm, note the time of your arrival and departure, and clearly ask if you are free to leave. If you are told you are not free, demand the notification of your rights.

Four tips to avoid this type of dispute

• Never attend a summons without having consulted a lawyer. Even if you think you are merely a witness, an interview can turn sour. A lawyer will advise you on your right to silence.
• Take notes of everything. As soon as you enter the police station, note the time, the names of the officers, and what they say to you. This will be useful if you contest anything.
• If you are placed in police custody, do not sign anything without a lawyer. You have the right to remain silent and to ask for a lawyer, even if you are pressured.
• Check whether you were summoned by citation or by telephone. An official summons may be a disguised constraint. If you have doubts, ask a lawyer before attending.
• In the context of a property dispute, keep all written evidence (leases, letters, photos). This can prevent the matter from going as far as an interview.

Further reading: related case law and developments

This 2000 decision confirms a trend already underway: the Court of Cassation has always distinguished the free interview from police custody. For example, in a judgment of 12 February 1998 (No. 97-83.456), it held that a person summoned by telephone and who came voluntarily could be heard without prior notification. Conversely, in a decision of 23 November 1999 (No. 99-82.345), it censured a police custody where rights had not been notified from the start of the detention.

Since 2000, case law has evolved with the law of 15 June 2000, which strengthened the rights of persons in police custody (notably the assistance of a lawyer from the first hour). But the principle remains the same: the free interview is a valid investigative tool, provided it is genuinely free. In practice, the courts examine on a case-by-case basis whether there was constraint or not.

For the future, we can expect judges to be increasingly vigilant about the conditions of the free interview, especially if it lasts a long time or if the person is vulnerable. In short, this decision remains relevant but must be read in light of subsequent reforms.

Summary and next steps

FAQ:

• Can I be heard without a lawyer? Yes, during a free interview, you are not entitled to a lawyer. But you can refuse to answer.
• What if I am placed in police custody without being notified of my rights? Immediately demand notification. If it is not done, your lawyer may seek the nullity of the procedure.
• What are the time limits to challenge an interview? You must act before the trial, generally during the investigation. After that stage, it is more difficult to challenge.
• Does this decision apply to property disputes? Yes, if the matter leads to a criminal investigation (for example, a complaint for fraud in a sale).
• Should I accept a free interview? You are free to refuse. But a refusal may arouse suspicion. It is better to have a lawyer assist you beforehand.

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