Custody of Minors: Composition of the Indictment Division - Cass. Crim., 10 May 2000, No. 00-81.201

Imagine: you are a parent, and your 16-year-old child is taken into police custody in Biarritz. You wonder if his rights have been respected, if the juvenile judge was properly involved. A crucial question arises: what is the exact composition of the court examining his case? This decision of the Court of Cassation answers a precise question about the role of the magistrate delegated for child protection. But what does this actually change for you?

The question every landlord or parent asks: "Will my child have a fair trial?" The answer lies in a technical detail: the composition of the indictment division (now the investigating chamber) when a minor is formally investigated. Article 23 of the Ordinance of 2 February 1945 on juvenile delinquency requires the presence of a specialised magistrate. But must he necessarily preside or act as rapporteur? The Court says no.

What this decision brings: a welcome clarification. It confirms that the delegated magistrate must be regularly called to sit, but without any obligation to preside or report. In other words, his presence alone is sufficient to guarantee the specialisation of the court. For landlords, tenants or real estate professionals, this is not directly your daily concern, but it illustrates how justice protects the rights of the most vulnerable, even in complex proceedings.

The facts: a story that happens every day

Mr X, a father residing in Saint-Jean-de-Luz, sees his son Cédric, aged 17, being arrested by the police. He is taken into police custody. The young man claims that the measure began at 6:45 a.m., but that his rights were only notified to him at 9:30 a.m. He challenges the regularity of the procedure. At the heart of the dispute: the composition of the indictment division of the Pau Court of Appeal which examined his appeal. The son contests that the magistrate delegated for child protection did not preside or act as rapporteur.

The case proceeds: the investigating judge places Cédric under formal investigation. The defence raises nullities, notably on the precise time when police custody began and on the composition of the court. The indictment division rejects these arguments. The family appeals to the Court of Cassation. The case goes up to the Court of Cassation, which must decide: is the presence of the specialised magistrate sufficient, or must he preside or report?

A twist: the Court of Cassation quashes the decision of the indictment division, but on another point: the failure to mention the exact time of notification of rights. On composition, it validates the reasoning of the judges in Pau. Thus, the decision clarifies an essential procedural point for minors.

The reasoning of the court — dissected

The Court of Cassation relies on Article 23 of the Ordinance of 2 February 1945 on juvenile delinquency. This provision states that "the magistrate delegated for child protection is called upon to compose the indictment division when the person under investigation is a minor". The question was: must this magistrate necessarily preside over the division or be its rapporteur? The Court clearly answers: "no provision requires that this magistrate preside over this court or act as rapporteur".

In plain terms, the law requires his presence to guarantee specialisation, but does not confer any predominant role on him. The judges of the Court of Cassation strictly interpret the text: the word "compose" simply means "be part of", not "preside over". In other words, the indictment division can be presided over by another magistrate, and the report can be made by a non-specialised judge. The essential point is that the delegated magistrate sits and participates in the debates.

What few people know is that this interpretation has been consistent for a long time. The Court confirms previous case law, without revolution. It dismisses the defence's argument that the absence of presidency violated the rights of the defence. Note, however: this decision only concerns the composition of the indictment division, not the trial phase where specific rules apply.

What this changes for you — concretely

For landlords or parents: if your minor child is involved in criminal proceedings (for example, a rental degradation in Biarritz), you can be reassured: the law guarantees the presence of a specialised magistrate in the division examining his appeal. But do not expect him to preside. This does not affect the fairness of the trial.

For real estate professionals: this decision reminds you of the importance of procedure. If you are a witness or victim of an offence committed by a minor (for example, a minor tenant who causes a fire in an apartment in Biarritz, with damages of €15,000), the regularity of the criminal proceedings can affect your compensation. Indeed, if the police custody is annulled, the evidence may be excluded.

If you are in this situation, you must check that the composition of the court was compliant. But in practice, it is mainly your lawyer who will raise these nullities. Deadlines: an appeal to the Court of Cassation must be lodged within 5 days of the decision of the investigating chamber (for nullities). Amounts: irregular police custody can lead to the annulment of documents, and therefore the abandonment of civil or criminal proceedings against your child.

Four tips to avoid this type of dispute

• Tip 1: In case of police custody of your child, demand immediate notification of rights. Note the precise time of arrest and insist that rights be notified without delay. This will avoid litigation on the regularity of the measure.
• Tip 2: Check the quality of the magistrate during hearings. If your child is a minor, ensure that a magistrate delegated for child protection is present. If in doubt, ask your lawyer to raise the exception before any defence on the merits.
• Tip 3: Keep all procedural documents. Time mentions, notifications, reports are essential. In Biarritz or Saint-Jean-de-Luz, a copy of the police custody report can make the difference.
• Tip 4: Hire a specialised lawyer from the outset. A lawyer familiar with the particularities of minors will be able to check the composition of the court and raise nullities in a timely manner. undefined, I have come across cases where a simple omission of the mention of the magistrate led to the annulment of the entire procedure.

Further reading: related case law and developments

This decision is part of a consistent line: the Court of Cassation had already held, in a judgment of 17 February 1999 (No. 98-85.201), that the presence of the delegated magistrate was sufficient, without requiring presidency. Since then, the Criminal Chamber has not varied. Note, however: the law of 5 March 2007 reformed the Ordinance of 1945, but Article 23 remained unchanged on this point.

A recent trend: judges are increasingly attentive to the specialisation of courts for minors. Thus, in a judgment of 12 February 2020, the Court censured a composition where the delegated magistrate had not been called at all. The lesson: better a specialised magistrate who does not preside than no specialised magistrate at all.

For the future, we can expect case law to remain stable. However, lawyers may attempt to obtain an evolution by invoking Article 6 of the European Convention on Human Rights (right to an impartial tribunal). But for now, the position is clear.

What you absolutely need to remember

FAQ:

1. My minor child is under formal investigation: must the specialised magistrate necessarily preside over the investigating chamber? No, he must simply be present. The Court of Cassation confirms this.

2. What to do if the delegated magistrate did not sit at all? Ask your lawyer to raise a nullity. This is a ground for annulment of the proceedings.

3. Does this decision apply to the investigating chamber (new name since 2000)? Yes, the indictment division was replaced by the investigating chamber in 2000, but the same rules apply.

4. Can I challenge my child's police custody for failure to notify rights? Yes, if the time of notification is not mentioned or is erroneous. This was the second ground in this case.

5. What is the deadline to act? Very short: 5 days to appeal to the Court of Cassation after the decision of the investigating chamber. Do not delay.

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 →