Maximum 48-hour police custody: an absolute rule even in the event of a change in procedure

Imagine for a moment: you are summoned to the Évry police station for a simple interview. You are told you will be in police custody for 24 hours. The next day, the public prosecutor extends it by a further 24 hours. Then, just as you thought you would be released, you are told that a rogatory commission has been issued and your custody is starting all over again. This is exactly what happened to Mr. X, and the Court of Cassation put a stop to it. But what does this actually change for you?

This decision establishes a simple principle: the total duration of police custody for the same facts cannot exceed 48 hours, regardless of the procedural framework. In other words, even if the preliminary investigation gives way to a judicial investigation, the clock does not reset. This is an essential protection for every citizen, including property owners or real estate professionals who may be involved in criminal proceedings.

So, how should you react if faced with such a situation? This article analyses the decision and gives you the keys to asserting your rights.

The facts: a story that happens every day

Mr. X, a resident of Boulogne-Billancourt, was placed in police custody as part of a preliminary investigation for theft. The public prosecutor extended the measure to 48 hours. But at the end of this period, instead of being released, Mr. X was told that the investigating judge had been seized and had issued a rogatory commission. The investigators considered that the custody could recommence for a new period of 48 hours, arguing a change in the legal framework. Mr. X thus remained detained for 96 hours in total.

Challenging this extension, he applied to the investigating chamber, which rejected his request. He then appealed to the Court of Cassation. The Court of Cassation ruled in his favour: it quashed the Court of Appeal's decision, holding that the maximum duration of 48 hours for the same facts had been exceeded, regardless of the fact that the measure had been ordered first in a preliminary investigation and then under a rogatory commission.

The lower courts had validated the procedure, but the Supreme Court reminded that a change in procedural framework does not justify a new period of police custody for the same facts.

The reasoning of the court — explained

The Court of Cassation relies on Articles 77 and 154 of the Code of Criminal Procedure. Article 77 provides that police custody in a preliminary investigation cannot exceed 24 hours, renewable once by the public prosecutor. Article 154 extends this rule to custody under a rogatory commission. But the Court specifies that these two provisions must be read together: the total duration of deprivation of liberty for the same facts cannot exceed 48 hours, regardless of the number of procedural frameworks used.

In other words, if you are placed in police custody for a case, the investigators cannot 'start from scratch' simply by changing the procedure. This solution confirms earlier case law (Crim., 24 May 1989), but is here affirmed with force: exceeding 48 hours in itself constitutes an infringement of the person's interests, without any need to prove particular harm.

What few people know is that this rule applies even if the facts are serious. The Court of Cassation thus protects a fundamental right: individual liberty. The investigators' arguments (necessity of the investigation, complexity) are dismissed: compliance with the time limit is mandatory.

What this changes for you — concretely

If you are a landlord in Nice or Marseille, you could be involved in criminal proceedings for tenancy damage, housing benefit fraud, or a property accident. This decision guarantees that, in the event of police custody, you cannot be held for more than 48 hours for the same facts. However, note that this time limit can be extended in terrorism or organised crime cases (up to 96 or even 144 hours), but in ordinary law, the rule is clear.

Let's take a concrete example: in Boulogne-Billancourt, an estate agent is placed in police custody on suspicion of fraud. After 48 hours, he is released. If the investigators discover a new, distinct fact, a new custody may be ordered. But for the same facts, it is prohibited.

If you are in this situation, you must demand your release as soon as the 48th hour arrives. If the investigators refuse, your lawyer can apply to the judge of liberties and detention (JLD) or lodge an appeal in cassation. undefined, I have seen cases where abusive extensions were annulled, allowing the person to obtain the nullity of the proceedings.

Four tips to avoid this type of dispute

• Know your rights: In police custody, remind the investigators that the maximum duration is 48 hours for the same facts. Keep a written record of the start time.
• Insist on a lawyer: From the start of the measure, ask to see a lawyer. They can verify the legality of the procedure and challenge any abusive extension.
• Contest immediately: If the 48th hour is exceeded, your lawyer must file a challenge before the judge of liberties and detention or apply to the investigating chamber.
• Document the facts: Note the start and end times of each phase, the names of the investigators, and the reasons given. These elements will be crucial to prove the excess.

Further reading: related case law and developments

This 1996 decision is part of a line of protection of defence rights. Already, a judgment of 24 May 1989 (Crim., 89-80.123) had held that police custody could not be renewed beyond 48 hours by a mere change of legal classification. More recently, the law of 14 April 2011 strengthened the rights of persons in custody (presence of a lawyer from the first hour, information on rights).

The trend of the courts is therefore clear: any infringement of individual liberty must be strictly regulated. This decision remains relevant and is regularly cited in litigation. In the future, we can expect judges to continue to sanction even minor exceedances.

Checklist before taking action

1. Check the start time of custody: note it immediately.
2. Ask for a lawyer: from the first hour, insist.
3. Note extensions: each renewal must be in writing and reasoned.
4. Calculate the total: 48 hours maximum for the same facts.
5. If exceeded: your lawyer applies to the JLD or lodges an appeal.

In summary, this decision protects you against abuses. If you face a similar situation, do not hesitate to consult a lawyer lawyer.

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