Late Custody: How a 1h15 Delay Annuls the Procedure

Imagine: you are a property owner in Grasse, and you rent a flat to a tenant who, one evening, is stopped during a roadside check on the A8, near Cagnes-sur-Mer. Placed in police custody, he calls you to tell you that he will not be able to pay his rent on time. But what seems anecdotal hides a fundamental legal question: when does police custody actually begin? And if the police are late in informing the public prosecutor, what happens?

This decision of the Court of Cassation of 20 March 2007 answers a precise question: is a delay of 1 hour 15 minutes in informing the public prosecutor at the start of police custody acceptable? The judges say no, unless there are insurmountable circumstances. Here, practical difficulties (busy roadside check, distance of 30 km) were not considered sufficient. In short, the protective formalism of the rights of the person in custody prevails over operational constraints.

But what does this actually change for you, owner or tenant in the south of France? Simply that if one day you are involved in criminal proceedings (even indirectly, as a witness), non-compliance with these time limits can lead to the entire procedure being annulled. And that is a massive defence weapon.

The facts: a story that happens every day

Mr X, a driver stopped on 16 May 2006 during a roadside check on the motorway near Grasse, was placed in police custody at 9 pm. The problem? The public prosecutor was not informed of this placement until 10:15 pm, i.e. 1h15 later. The investigation chamber, however, validated this procedure, considering that the delay was justified by the difficulties of managing the check (several vehicles, three people placed in custody at the same time) and the distance of 30 km between the place of arrest and the gendarmerie premises.

But Mr X, through his lawyer, raised a plea of nullity: under Article 63, paragraph 1, of the Code of Criminal Procedure, the judicial police officer must inform the public prosecutor as soon as police custody begins. This is not an option, it is an immediate obligation. The case went up to the Court of Cassation, which quashed the decision of the investigation chamber. Why? Because the constraints invoked (crowding, distance) are not insurmountable circumstances. In other words, the police should have organised themselves differently.

What is striking in this case is the contrast between the daily reality of law enforcement (a busy Saturday evening, calls to manage) and the absolute legal requirement. undefined, I have come across cases where police custody was annulled for much shorter delays, because the judges are uncompromising on this point.

The reasoning of the court — dissected

The Court of Cassation relies on Article 63, paragraph 1, of the Code of Criminal Procedure, in its version resulting from the law of 15 June 2000. This text requires the judicial police officer (OPJ) to inform the public prosecutor as soon as police custody begins. No grace period, no margin of appreciation. The only exception? Insurmountable circumstances, i.e. an event totally unforeseeable and independent of the will of the police.

In this case, the investigation chamber had considered that the 1h15 delay was justified by: (1) the difficulties of managing a major roadside check, (2) the fact that three people had been placed in custody simultaneously, and (3) the distance of 30 km between the place of arrest (near Grasse) and the gendarmerie premises (probably in Cagnes-sur-Mer or nearby). The Court of Cassation dismisses these arguments with a wave of the hand: these are not insurmountable circumstances. A busy roadside check is foreseeable. The distance is known in advance. As for the number of people, that is a matter of internal organisation.

The reasoning is therefore clear: the lower courts must verify whether the obstacle was truly insurmountable, not simply inconvenient. And in this case, the police could, for example, have informed the public prosecutor by telephone from the roadside, even before returning to the premises. What few people know is that this case law has been constant since 2000: the judges strictly protect the right to immediate information of the public prosecutor, which is the cornerstone of the rights of the defence.

Note, however: this decision does not call into question the validity of the police custody itself, but it leads to the annulment of all subsequent acts (interviews, searches, etc.) if the delay is not justified. In Mr X's case, all subsequent proceedings were therefore annulled.

What this changes for you — concretely

For a landlord in Grasse, this decision may seem remote. But if your tenant is involved in criminal proceedings, non-compliance with this formality may allow him to obtain the nullity of the charges against him. And if he is convicted, you risk no longer receiving rent. In short, a procedural defect can have indirect economic consequences on your assets.

For a tenant in Cagnes-sur-Mer, it is even more direct: if you are placed in police custody, insist that the public prosecutor be informed immediately. If you notice a delay, note it (precise time, reasons given). This can be used by your lawyer to request the nullity of the proceedings.

For a property professional (agent, developer), this case law reminds us that criminal law sometimes intrudes into your files. For example, if you witness an offence during a viewing, or if a client is implicated for fraud. Knowing that a procedural defect can annul everything is an asset.

If you are in this situation, you must contact a lawyer immediately. The time limit for raising a plea of nullity is very short: before any discussion on the merits. In Mr X's case, the plea was raised at the opening of the judicial investigation.

Four tips to avoid this type of dispute

• Note the precise time of your arrest and placement in police custody: as soon as you are arrested, ask to see the report and check the time mentioned. Any discrepancy is a potential nullity.
• Insist that the public prosecutor be informed immediately: if you sense a delay, politely remind them of the legal obligation. The police know they risk nullity; this may encourage them to act faster.
• Keep a record of everything: if you have a phone, note the time of events, the names of officers, the exchanges. These elements will be valuable for your lawyer.
• Contact a lawyer as soon as possible: do not delay, even if you think the matter is minor. A procedural nullity can bring down serious charges.

Further reading: related case law and developments

This decision is part of a constant line of the Court of Cassation. For example, in a judgment of 13 December 2005 (No. 05-84.123), it had already annulled a procedure for a delay of 45 minutes, the judges considering that the mere fact of having to draft a report did not constitute an insurmountable circumstance. Conversely, in a 2008 case (No. 07-88.765), a delay of 2 hours was validated because the person in custody had been injured and required emergency hospitalisation: there, the obstacle was truly insurmountable.

The trend is therefore clear: the judges are increasingly strict. The law of 15 June 2000 was reinforced by the law of 14 April 2011, which now requires audiovisual recording of police custody for certain offences. This means that the control of compliance with time limits is even greater. For the future, expect the courts to continue to sanction any delay, however minor, except in cases of proven force majeure.

Frequently asked questions

What is an insurmountable circumstance? It is an unforeseeable, irresistible and external event, such as a natural disaster, a general telephone outage, or a medical emergency. Organisational difficulties (crowding, distance) are not considered as such.

Can I request the nullity of police custody if the public prosecutor was informed 30 minutes later? Yes, if this delay is not justified by an insurmountable circumstance. Every minute counts. In practice, judges are sensitive to delays of even 20 minutes if no valid reason is given.

What are the time limits for acting? The plea of nullity must be raised before any defence on the merits, i.e. at the first appearance before the investigating judge or the criminal court. After this stage, it is inadmissible.

What is the cost of a nullity procedure? Lawyer's fees vary: expect between €500 and €2,000 for a consultation and drafting of submissions, depending on complexity. A well-founded nullity can save you from a much more costly conviction.

Does this decision apply to all police custody? Yes, since the law of 2000, the obligation to immediately inform the public prosecutor is general, regardless of the reason for the custody (misdemeanour or crime).

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 →