Assistance of a Lawyer in Police Custody: A Right at Any Time

Imagine: you own a villa in Cassis, and a dispute with your neighbour escalates into a criminal complaint. You are taken into police custody. You are notified of your rights; you do not ask for a lawyer at the time. But as the hours pass, the pressure mounts, the questions become more technical. You realise you could use some advice. Is it too late? This question, any owner or tenant may ask themselves one day. The decision of the French Court of Cassation of 5 November 2013 (No. 13-82.682) provides a clear answer: the right to the assistance of a lawyer is permanent and may be requested at any time during police custody, even after the initial notification. This principle, fundamental in criminal procedure, has concrete repercussions for litigants, including in real estate disputes.

The facts: a story like any other

Mr X, a resident of Gemenos, is implicated in a case of property damage. Placed in police custody, he is notified of his rights, including the right to benefit from the assistance of a lawyer (Article 63-3-1 of the French Code of Criminal Procedure). At the time, he declines this offer. But during the hearing, the situation becomes more complex: the questions become more specific, the legal stakes heavier. Mr X then requests to be assisted by a lawyer. His request is refused on the grounds that he had already waived this right at the initial notification and that this choice was only open to him again at the time of the extension of police custody, which occurred later. Dissatisfied with this response, Mr X, after being charged, applies to the investigating chamber to request the annulment of his hearings. The investigating chamber dismisses his application based on the same reasoning. Mr X then appeals to the Court of Cassation.

The reasoning of the court — in detail

The Court of Cassation quashes the decision of the investigating chamber. It recalls that Article 63-3-1 of the French Code of Criminal Procedure, which governs the assistance of a lawyer in police custody, provides that "from the beginning of police custody as well as from the extension of police custody", the person must be able to benefit from the assistance of a lawyer if they request it. The Court specifies that this right is continuous: it can be exercised at any time, and not only during the notifications provided for (beginning and extension). In other words, the person in police custody can change their mind and request a lawyer during the hearing. This is not a definitive choice. In other words, the investigating chamber made an error in considering that Mr X's initial refusal blocked any subsequent request until the extension. This decision confirms a broad interpretation of defence rights, already outlined in previous decisions. It is part of a jurisprudential trend aimed at strengthening procedural guarantees for litigants. In short, the Court of Cassation favours substance (effective access to a lawyer) over form (compliance with a procedural timetable).

What this changes for you — practically

For a landlord owner in Gemenos, a tenant in Cassis, or a property developer, this decision has immediate practical scope. If you are involved in criminal proceedings (for example for rental damage, a neighbourhood dispute, or a planning offence), you can request a lawyer at any time during your police custody, even if you initially said no. Do not remain alone facing the investigators: a simple "I wish to see a lawyer" suffices, and the hearings must be suspended pending the lawyer's arrival. undefined, I have come across cases where owners, underestimating the complexity of the facts, waived the assistance of a lawyer at the outset and then found themselves in difficulty. This decision offers them a lifeline. Practically, if you are in police custody, you should know that this right is reversible. Must investigators inform you of this possibility? The law does not explicitly require it, but case law tends to require that the person be able to exercise their right. If in doubt, systematically request a lawyer, even if you have refused previously. The consequences of an unassisted hearing can be severe: annulment of statements, or even the entire proceedings.

Four tips to avoid this type of dispute

• Never waive a lawyer without thinking. Even if the matter seems simple to you, the presence of a lawyer can avoid mistakes and guarantee your rights. Always take the time to consult a lawyer before making a statement.
• Know that you can change your mind. If you initially refused assistance, you can request it at any time. Investigators must suspend the hearing. Insist if necessary.
• Note the times and refusals. If investigators refuse your request, note the circumstances (time, names of officers). This can be used to challenge the proceedings later.
• Consult a lawyer as soon as you are summoned. Even before police custody, a lawyer can prepare you and advise on how to proceed. In Gemenos or Cassis, several lawyers specialised in real estate and criminal law can assist you.

Further reading: related case law and developments

This decision is part of a line of Court of Cassation decisions favourable to defence rights. For example, in a decision of 15 February 2011 (No. 10-87.480), the Court had already held that the right to the assistance of a lawyer is exercised from the beginning of police custody and that hearings conducted without that lawyer, when the person had requested to benefit from one, are void. The 2013 decision goes further by specifying that this right is continuous and can be exercised at any time, even after an initial refusal. This jurisprudential trend is consistent with the case law of the European Court of Human Rights (ECtHR), which requires effective guarantees for persons deprived of their liberty. In the future, we can expect courts to be even stricter regarding respect for this right, particularly by requiring investigators to actively inform the person of the possibility of requesting a lawyer during police custody.

Checklist before acting

• Q: Can I request a lawyer during the hearing if I refused at the beginning? R: Yes, this is a continuous right. Insist that the hearing be suspended.
• Q: What if the investigators refuse my request? R: Do not give in. Ask for the refusal to be recorded in the official report. You can challenge the proceedings later.
• Q: Does this right also apply in case of extension of police custody? R: Yes, at any time, including during the extension.
• Q: Can I change my lawyer during police custody? R: Yes, you can request another lawyer, but this may delay proceedings. It is preferable to choose one from the outset.
• Q: Is there a cost for the assistance of a lawyer in police custody? R: The duty solicitor is free. If you choose your own lawyer, their fees are your responsibility, but you may benefit from legal aid subject to means testing.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →