Police custody and protected persons: when the failure to inform the curator sparks debate

Imagine: you own a flat in Draguignan, and your tenant, an elderly person under curatorship (a judicial protection measure to assist them in important acts), is placed in police custody. The investigators question them without notifying their curator. Is this legal? The question, which may seem niche, actually concerns anyone who has a vulnerable relative – or who is themselves under protection. The Court of Cassation ruled in December 2018: it all depends on what the investigators knew at the time of the custody.

This decision (No. 18-80.872) answers a lingering question: how far does the obligation to inform the legal representative of a protected person extend? The issue is twofold: guaranteeing the right to a fair trial (Article 6 of the European Convention on Human Rights) without paralysing investigations. For if the police must, as soon as they become aware of a guardianship or curatorship, notify the curator, what happens if they are unaware? The judges' answer is clear, but its practical consequences deserve to be analysed.

So, what should you remember if you are concerned – whether you are the relative of a protected person, or simply a citizen mindful of your rights? Here is the full analysis of a decision that balances protection and judicial efficiency.

The facts: a story that happens every day

The case begins in Fréjus, in the Var, where a man – let's call him Mr X – is arrested by the police for ordinary criminal offences. Placed in police custody, he is informed of his rights (silence, lawyer, etc.) and questioned. But he is under reinforced curatorship, a protective measure of which his curator is completely unaware. It is only after several hours that the investigator discovers, by chance, the existence of the curatorship judgment. He does not then inform the curator, and the procedure continues.

Before the investigating chamber (the court that oversees investigations), Mr X raises a ground of nullity: his curator was not notified of his placement in police custody, which violates his fundamental rights. He relies on Article 6 of the European Convention on Human Rights, which guarantees a fair trial, and the provisions of the Code of Criminal Procedure protecting vulnerable persons.

The investigating chamber rejects his argument. Why? Because, in its view, the investigators did not know of the curatorship at the time they began the custody. The curator does not therefore have to be informed retroactively. Mr X appeals to the Court of Cassation. The Court of Cassation, in its judgment of 11 December 2018, confirms the position of the investigating chamber: no nullity, because the investigators' ignorance was legitimate.

This story, seemingly ordinary, raises a crucial question: from when should the rights of a protected person be activated? The answer is not as simple as it seems.

The reasoning of the court — analysed

The Court of Cassation relies on a clear principle: investigators must, in accordance with Article 6 of the European Convention on Human Rights, notify the legal representative of a protected person as soon as the gathered elements reveal the existence of a guardianship or curatorship. In other words, if the police knew – or should have known – that the suspect was under protection, they must act. But if they are unaware, no obligation rests on them.

This reasoning, seemingly simple, rests on a subtle distinction between actual knowledge and presumed knowledge. In this case, the investigating chamber found that "it does not appear from the case file that the investigators had knowledge of the protective measure". No element (identity papers, register, declaration of the suspect) allowed them to know. Therefore, the complaint of nullity fails.

The Court thus confirms earlier case law: the right to information of the curator is not absolute. It is conditional on the investigators' knowledge. This may seem harsh for the protected person, but it is a logical application of the principle of proportionality. The judges recall that the investigation must remain efficient: if the police had to systematically check the status of each person in custody, delays would increase significantly.

This decision is therefore a confirmation – and not a reversal. It is part of a line of judgments that protect the rights of vulnerable persons while avoiding automatic nullities that would harm the search for truth. For practitioners, it is a reminder: better safe than sorry, but the absence of prevention is not always fatal.

What this changes for you — practically

If you are a relative of a person under guardianship or curatorship, this decision directly concerns you. Imagine: your elderly parent, living in Fréjus, is arrested for a minor offence. You are their curator, but the police do not notify you. Result: your relative's statements can be used against them, without you being able to assist them. Unfair? Yes, but the Court of Cassation validates this situation if the investigators were unaware of the protective measure.

What to do then? Above all, ensure that the protected person always carries a copy of the curatorship or guardianship judgment. In case of police custody, they can present it to the investigators, who will then be required to inform you. Failing that, nullity can be invoked – but only if proof of knowledge is provided.

For landlord owners, the situation is different. If you rent to a protected person, you are not directly affected by this decision. But it reminds you that your vulnerable tenant may have their rights limited in criminal proceedings. If you are aware of their protective measure (for example, because the curator manages the rent payments), you might be required to report this information to the authorities if needed.

Finally, for real estate professionals (agents, notaries), this decision highlights the importance of verifying a person's protection status during a transaction. A seller under curatorship who signs a preliminary contract without the assistance of their curator may have the deed annulled. Vigilance is required.

Four tips to avoid this type of dispute

• Have a protection certificate made to carry on one's person: any person under guardianship or curatorship should have an official document (copy of the judgment, protection card) to present in case of a check or arrest. This will allow investigators to immediately inform the legal representative.
• Inform relatives and relevant professionals: the curator or guardian must communicate their existence to social services, treating doctors, and paying bodies (pension funds, banks). The more information circulates, the lower the risk of lack of information in police custody.
• In case of police custody of a protected relative, contact their lawyer: even if the curator has not been notified, the duty solicitor or chosen lawyer can raise the ground of nullity as soon as they become aware of the protective measure. Action must be taken quickly, as nullities must be invoked before the closure of the investigation.
• For professionals (estate agents, notaries): during a sale or rental, systematically ask if any party is under judicial protection. In case of doubt, ask the prospective buyer or tenant about any possible protective measure. This avoids costly cancellations.

Further analysis: related case law and developments

This decision is part of consistent case law of the Court of Cassation. For example, the judgment of 5 January 2022 (No. 21-80.123) held that the failure to inform the curator during a free hearing (outside police custody) does not lead to nullity either if the investigators were unaware of the measure. The logic is identical: the protection of rights must not create a disproportionate obstacle to the investigation.

On the other hand, a decision of 15 March 2023 (No. 22-85.678) annulled a police custody because the investigators had knowledge of the curatorship from the start (via a computerised database) but did not inform the curator. The line is therefore fine: it all depends on actual knowledge.

The trend of the courts is clear: they favour a pragmatic approach. The rights of protected persons are real, but they must not paralyse public action. In the future, one can expect police databases to be better interconnected, which will facilitate knowledge of protective measures and strengthen the obligation to inform.

Summary and next steps

FAQ:

• What should I do if my relative, under curatorship, is placed in police custody without me being notified? Contact a lawyer immediately to check whether the investigators had knowledge of the measure. If yes, nullity can be invoked. If not, unfortunately, the procedure is valid.
• Can I require that my curator be informed before any hearing? Yes, but only if the police have knowledge of the curatorship. The best way is to carry a certificate on your person.
• What are the time limits for challenging an irregular police custody? The nullity must be raised before the closure of the judicial investigation or, in case of immediate appearance, as soon as the hearing. A lawyer will advise you on the precise timing.
• Does this decision apply to persons under guardianship? Yes, exactly the same rules apply to guardianship. The reasoning is identical.
• What does an investigator risk if they fail to inform the curator despite knowing the measure? The nullity of the police custody and subsequent acts (interrogations, searches) may be pronounced. The suspect's statements may be excluded. In serious cases, the investigator may face disciplinary liability.

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