Police custody and administrative detention: the judge must verify the arrest documents

Imagine for a moment: you are the owner of a flat in Mérignac, and you let it to a tenant in good faith. One day, you learn that your tenant has been arrested, placed in police custody, and then in administrative detention pending removal from the territory. You wonder: "But who checks that all this is legal?" This decision of the Court of Cassation answers precisely that question, by requiring the judicial judge to carry out a rigorous check of the documents justifying the arrest.

On 14 March 2018, the Court of Cassation issued an important judgment in the field of immigration law and criminal procedure. It held that the document establishing the conditions of the arrest which led to placement in police custody, prior to administrative detention, must imperatively be produced by the prefect in support of his application, on pain of inadmissibility. In other words, without this document, the application for detention is inadmissible. This decision strengthens the rights of foreign nationals and imposes greater transparency on the authorities.

But what does this change concretely for you, owner or tenant? Little in your daily life, certainly. But this decision illustrates a fundamental principle: any act depriving a person of liberty must be strictly controlled by the judge. And if you are involved in a tenancy dispute or an eviction procedure, knowing that the judges require precise evidence can help you defend your rights. Let's look at the details.

The facts: a story like any other

Mr X, a foreign national, is arrested by the police in the jurisdiction of Bordeaux. He is placed in police custody, then, at the end of that custody, the prefect of the Gironde decides to keep him in administrative detention with a view to his removal from the territory. To do so, the prefect applies to the liberty and detention judge (JLD) to obtain an extension of the detention.

However, in his application, the prefect produces various documents, but omits to attach the initial arrest report which led to the police custody. Mr X's lawyer then raises the inadmissibility of the application, arguing that Article R. 552-3 of the Code of Entry and Residence of Foreign Nationals and the Right of Asylum (CESEDA) requires the prefect to provide all relevant supporting documents, including the document establishing the conditions of the arrest.

The first instance judge rejects this argument and extends the detention. Mr X appeals. The Bordeaux Court of Appeal, in a judgment of 22 March 2017, reverses the decision and declares the prefect's application inadmissible for failure to produce the missing document. The prefect appeals to the Court of Cassation. The question put to the Court of Cassation is therefore: does the document establishing the conditions of the arrest form part of the relevant supporting documents required by Article R. 552-3 of the CESEDA?

The reasoning of the court — dissected

The Court of Cassation answers in the affirmative. It relies on Article R. 552-3 of the CESEDA, which provides that the prefect's application must be accompanied by "all relevant supporting documents". According to the Court, the document establishing the conditions of the arrest which led to placement in police custody is among these documents. Consequently, if this document is not produced, the application is inadmissible.

The Court clarifies that it is for the judicial judge (the JLD or the court of appeal) to ascertain whether this document has indeed been provided. If not, he must note the inadmissibility. In other words, the judge cannot turn a blind eye: he must verify of his own motion the presence of this document. This control strengthens procedural guarantees for the detainee.

The Court also dismisses the prefect's argument that this document is not necessary because it is an internal document of the investigation. The Court considers that the conditions of the arrest are crucial for assessing the lawfulness of the police custody and, consequently, of the detention. If the arrest is unlawful, the entire subsequent procedure may be annulled. In short, the Court sets the bar high: the prefect must prove that the arrest was legal from the outset.

Note, however, that the Court specifies that this requirement only concerns the document relating to the first measure of police custody that led to the detention. If the person has been subjected to several successive periods of police custody, the documents relating to the previous ones are not necessary, unless they are useful for assessing the lawfulness of the detention. What few people know is that this decision is part of a consistent line of case law since 2012 (Cass. civ. 1ère, 6 June 2012, n° 11-11.384) which already imposes strict control of acts prior to detention.

What this changes for you — concretely

If you are a landlord in La Teste-de-Buch, this decision does not directly concern you, but it illustrates the importance of documentary rigour in any procedure. For real estate professionals, especially those who manage furnished rentals or social housing, knowing that the authorities must provide precise documents can be useful in the event of a dispute with a foreign tenant who is the subject of an eviction procedure.

For foreign tenants, this decision is a protection: if you are arrested and placed in detention, your lawyer can demand that the prefect produce the arrest report. If he does not, the application is inadmissible and you must be released. undefined, I have come across cases where prefects forgot to attach this document, which made it possible to obtain the release from detention.

If you are a buyer or seller, remember that this principle of transparency also applies in property law: any request for an expert report, planning permission or easement must be accompanied by supporting documents. An incomplete file may be rejected. For example, if you sell a property and the notary omits to produce a document, the sale may be delayed.

In terms of time limits: the prefect's application must be filed within 48 hours of the end of police custody. If it is inadmissible, the judge must rule immediately. The cost of a lawyer to challenge a detention can range from €500 to €1,500, but a favourable decision can avoid removal.

Four tips to avoid this type of dispute

• Keep all documents relating to an arrest: if you are concerned, keep the arrest report, the police custody register and any official document safe. These documents are essential to verify the lawfulness of the procedure.
• Demand the disclosure of documents: if you are a lawyer or advisor, systematically request the production of the arrest document. If absent, raise the inadmissibility at the hearing.
• Anticipate appeals: if you are a prefect or a representative of the State, compile a complete file from the outset. An omission can lead to the nullity of the detention and the release of the person.
• Train officers: police officers must be made aware of the importance of correctly completing arrest reports, as any imprecision can be exploited before the judge.

Further reading: related case law and developments

This decision confirms previous case law of the Court of Cassation. In particular, the judgment of 6 June 2012 (n° 11-11.384) had already established the principle that the judicial judge must verify all acts prior to detention, including police custody. Since then, several courts of appeal, such as those of Bordeaux and Lyon, have applied this rule strictly.

Another important decision is that of the Council of State of 9 November 2016 (n° 393947), which specified that the illegality of police custody can lead to the annulment of administrative detention, even if the arrest was justified. The trend is therefore towards increased control of the conditions of deprivation of liberty, consistent with fundamental rights.

For the future, one can expect judges to demand even more transparency, particularly in relation to video surveillance or witness statements. Lawyers specialising in immigration law must therefore be vigilant and systematically check the documents provided.

Summary and next steps

FAQ:

• What is a document establishing the conditions of the arrest? This is usually the arrest report drawn up by the police, which mentions the circumstances, place, time and reasons for the arrest.
• What if the prefect does not produce this document? You must raise the inadmissibility of the application before the liberty and detention judge. If the judge notes the absence of the document, he must declare the application inadmissible and order your release.
• What are the time limits for action? Detention is limited to 48 hours before the first appearance. At the hearing, your lawyer must request the disclosure of documents. After this time, detention may be extended if the application is admissible.
• Does this decision apply to all police custody? Yes, to any police custody prior to administrative detention. But it does not concern police custody in criminal matters not followed by detention.
• Can I challenge a detention if the arrest was lawful but the report is missing? Yes, because the absence of the document renders the application inadmissible, regardless of the substantive lawfulness. It is a mandatory procedural requirement.

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