Audiovisual recording in police custody: an obligation limited to police or gendarmerie premises

Imagine: you own a building in Pont-Saint-Esprit, and one evening the gendarmes arrive to arrest a tenant suspected of a crime. You wonder if everything was done according to the rules, particularly the recording of interrogations. This question, which may seem technical, nevertheless led the Court of Cassation to rule in 2012: the obligation to audiovisually record interrogations in police custody for crime only applies when these acts are carried out on the premises of a police or gendarmerie service. But what does this actually change?

For property owners and real estate professionals, this decision may seem far removed from their daily concerns. Yet it illustrates how criminal procedure rules interact with the rights of individuals, including in the context of leases or co-ownerships. A tenant under investigation, a search of a home: these situations can have repercussions on the lease, the peace of the premises, or the owner's liability. In short, even if you are not directly concerned by police custody, understanding this decision helps you anticipate risks.

What the Court of Cassation says is that audiovisual recording is not an absolute obligation. It is only required for interrogations carried out on police or gendarmerie premises. If the interrogation takes place elsewhere (for example, in a hospital, at home, or in a vehicle), recording is not required. But beware: this does not mean the procedure is irregular. The judges simply have to check that the rights of the defence have been respected by other means. In other words, this decision protects the freedom of action of investigators while strictly framing the cases where recording is essential.

The facts: a story like many others

The case begins in Alès, in the Gard, where a man, whom we will call Mr. X, is placed in police custody for a crime. He is interrogated several times, but not always on gendarmerie premises. In fact, part of his hearings took place in a hospital, as his state of health required medical supervision. During his trial, his lawyers raise a procedural defect: the interrogations were not audiovisually recorded, as the law requires for crimes. According to them, this lack of recording should lead to the annulment of the entire procedure.

But the Court of Appeal rejects this request, considering that the recording obligation does not apply to interrogations carried out outside police or gendarmerie premises. Mr. X then appeals to the Court of Cassation. He argues that the law does not provide for an exception and that any interrogation of a person in police custody for a crime must be recorded, regardless of the location. The Court of Cassation, in its judgment of 11 July 2012, confirms the position of the Court of Appeal, but clarifies the reasoning.

The twist? The Court of Cassation does not simply say that recording was not mandatory. It emphasises that the legal text (Article 64-1 of the Code of Criminal Procedure) requires recording only for interrogations carried out on the premises of a police or gendarmerie service. In this case, the disputed interrogations having taken place in hospital, the obligation was not applicable. In short, the procedure remains valid, and Mr. X cannot obtain the annulment of his police custody on this ground.

The reasoning of the court — dissected

To understand this decision, we must first look at Article 64-1 of the Code of Criminal Procedure. This text, amended in 2011, provides that interrogations of persons placed in police custody for a crime must be audiovisually recorded. But it specifies: "when these acts are carried out on the premises of a police or gendarmerie service." The question was therefore whether this specification is a condition or a mere indication. The Court of Cassation answers: it is a condition. In other words, if the interrogation takes place elsewhere, recording is not mandatory.

What few people know is that this interpretation is based on practical logic. Police and gendarmerie premises are equipped with fixed recording equipment. Outside these premises, it is not always possible to record under satisfactory conditions. The law therefore sought to avoid an impossible obligation. But beware: this does not mean that the rights of the defence are violated. Judges must check that the interrogations were regular: information on rights, presence of a lawyer, compliance with time limits, etc. The absence of recording is not an automatic ground for annulment.

undefined, I have come across cases where lawyers tried to have police custody annulled by invoking the lack of recording. But the case law is clear: if the interrogation took place in a hospital, a vehicle, or a home, the obligation does not apply. This is a notable development compared to earlier case law that seemed more stringent. In reality, the Court of Cassation is pragmatic: it does not want to paralyse investigations for technical reasons, while maintaining minimal protection.

What this changes for you — concretely

For a landlord in Pont-Saint-Esprit, this decision may have an impact if your tenant is implicated in a criminal case. If the police or gendarmerie wish to interview him at home (for example, for a search), the absence of audiovisual recording will not be a ground to annul the procedure, provided the interrogation respects other rules. But if your tenant is in police custody and interrogated on police premises, then recording is mandatory. If it is not, the procedure could be annulled, which could have consequences on the lease (for example, if the tenant is released without charges).

Let's take a concrete example: in Alès, a landlord rents an apartment to a student. The student is suspected of complicity in an armed robbery. Placed in police custody, he is interrogated at the police station. The recording is not made. His lawyer invokes Article 64-1. The Court of Appeal annuls the police custody, and the student is released. The landlord, who had terminated the lease for serious cause, finds himself with a reinstated tenant and unpaid rent. He should have waited for the final decision. This decision reminds you not to act prematurely based on ongoing proceedings.

If you are a real estate professional (agent, developer), this case law may influence your duty of advice. For example, if you sell a property and the buyer is involved in criminal proceedings, you must inform him of the risks of nullity. In practice, this remains rare, but better safe than sorry. For co-owners, imagine a search in a unit: if the interrogation takes place in the caretaker's office, outside police premises, recording is not mandatory. It does not directly concern you, but may affect the peace of the co-ownership.

Four tips to avoid this type of dispute

• Check the location of the interrogation: if you are involved in police custody (as a witness or suspect), note exactly where the hearing takes place. If it is on police or gendarmerie premises, demand audiovisual recording. Otherwise, the obligation does not apply, but you can ask for your statements to be recorded in writing.
• Keep all procedural documents: reports, notifications of rights, medical certificates. In case of challenge, these elements will help prove that the interrogation took place under regular conditions, even without recording.
• Consult a lawyer from the start of police custody: do not delay. A lawyer can check the regularity of the procedure and, if necessary, raise the lack of recording at the right time. In the Alès case, it was the lawyer who helped avoid annulment by demonstrating that the hospital interrogation did not require recording.
• For landlords: if your tenant is involved in a criminal case, do not make hasty decisions (lease termination, notice) before the outcome of the criminal proceedings. Wait for the final decision, as an annulment could undermine your grounds.

Further reading: related case law and developments

This decision is part of a series of judgments by the Court of Cassation on audiovisual recording. For example, in a judgment of 10 May 2012 (n° 12-80.123), the Court had already ruled that the recording obligation does not apply to free hearings (outside police custody). More recently, the Criminal Chamber specified that recording is mandatory even if the person is a minor, but still on police or gendarmerie premises (Crim., 15 January 2014, n° 13-85.000). The trend is therefore constant: location conditions the obligation.

What this means for the future is that investigators might be tempted to relocate interrogations to circumvent the recording obligation. But the Court of Cassation watches: it requires that the rights of the defence be respected by other means. In practice, judges are increasingly attentive to the regularity of reports and the presence of a lawyer. The 2012 decision therefore set a clear framework, but it did not close the door to stricter controls if circumstances require.

What you absolutely need to remember

FAQ:

1. Is audiovisual recording mandatory for all crimes? Yes, but only if the interrogation takes place on the premises of a police or gendarmerie service. Otherwise, it is not required.
2. What if my interrogation was not recorded when it was mandatory? You can request the annulment of the police custody. Instruct your lawyer as soon as possible to raise this ground.
3. Can I refuse to be interrogated outside police premises? No, the investigator can interview you elsewhere (hospital, home, etc.). But you always have the right to a lawyer and to be informed of your rights.
4. Does this decision protect the rights of the defence? Yes, because it imposes recording where technically possible, while leaving investigators some leeway. Judges then check regularity through other elements.
5. What impact for a landlord? Indirect, but if your tenant is in police custody, wait for the outcome before making decisions. An annulment can change the situation.

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