Police custody and questioning: what the Court of Cassation has decided for your protection

Imagine yourself, owner of a beautiful house in Mont-de-Marsan, summoned by the gendarmerie for a simple questioning regarding a neighbourhood dispute. You go voluntarily, without constraint, thinking it will be quick. But did you know that this time spent in questioning could potentially be used against you in subsequent proceedings? This is precisely the question that the Court of Cassation has decided in a fundamental ruling.

In the real estate world, conflicts can sometimes escalate into criminal proceedings: property damage, fraud in sales, or even co-ownership disputes that turn sour. When law enforcement intervenes, understanding your rights becomes essential. But how can you distinguish between police custody (a measure of deprivation of liberty decided by a judicial police officer) and voluntary questioning (an interview without constraint)?

The answer from France's highest court is clear: no legal provision requires counting the time of voluntary questioning towards the duration of police custody, even if they concern the same facts. In plain terms, your time spent voluntarily answering questions does not reduce the legal time limit for police custody. But what does this change concretely for you, a property owner in the Landes region?

The facts: a story that happens every day

The story begins like so many others in our region. Mr. Dubois, owner of a plot of land in Mimizan, finds himself involved in a case of damage to a neighbouring property. On 19 November 1997, around 3 p.m., the gendarmes place him in police custody for questioning. This measure, which deprives him of his liberty, lasts until 6 p.m., only three hours. He is then released, with the investigation continuing.

More than a year later, on 10 March 1999, the case resurfaces. Mr. Dubois is summoned again, but this time, he goes voluntarily to the police station for questioning. He answers the investigators' questions for several hours, thinking he is cooperating with the investigation. Yet, later that day, he is formally placed in police custody, with written notification of this coercive measure.

The dispute arises from the calculation of time limits. Mr. Dubois's defence challenges the regularity of the procedure, arguing that the time spent in voluntary questioning on 10 March should be deducted from the duration of police custody. In other words, if the questioning lasted 4 hours, police custody could legally only last an additional 20 hours (since the law generally limits police custody to 24 hours). The lawyers request the annulment of the procedural acts, considering that their client's rights have been violated.

The judicial process is classic: the criminal court of Mont-de-Marsan rules first, then the court of appeal of Pau examines the case. Each court must decide this technical but crucial question: how to precisely calculate the time of deprivation of liberty? The answer will directly influence the validity of the entire procedure, and potentially Mr. Dubois's fate.

The court's reasoning — dissected

The Court of Cassation, in its judgment of 31 October 2001, adopts clear reasoning. It first recalls the legal basis: the Code of Criminal Procedure strictly governs police custody, but contains no provision requiring deducting the time of voluntary questioning from its duration. In plain language: the law nowhere states that time spent voluntarily at the police station must be subtracted from the maximum time for police custody.

The judges carefully distinguish two legally different situations. On one hand, voluntary questioning: you go spontaneously or upon summons, you can leave at any time, you are not deprived of liberty. On the other, police custody: a coercive measure that deprives you of liberty, with specific rights (such as legal assistance) and a limited duration. Mixing these two regimes would blur distinct legal protections.

The Court rejects the defence's argument that, since the facts are the same, the questioning time should be counted. It considers that what matters is the legal regime applied, not the continuity of interrogations. An important confirmation: this decision fits within consistent case law that protects defence rights while allowing effective investigation.

Let's analyse the arguments of both sides. The defence argued for a protective interpretation: cumulating all interrogation times, regardless of their status, to prevent abuse. The public prosecutor defended the distinction: voluntary questioning is by definition non-coercive, so its time cannot reduce that of a coercive measure. The Court chose legal certainty: in the absence of clear text, it refuses to create a new obligation for investigators.

What this changes for you — concretely

If you are a landlord in Mont-de-Marsan, this decision directly concerns you. Imagine a conflict with a tenant who damages your flat. You file a complaint, and during the investigation, the tenant is questioned voluntarily for 5 hours before being placed in police custody. Thanks to this case law, these 5 hours do not reduce the 24-hour legal limit for police custody. The investigation can thus continue within the time limits, maximising the chances of establishing the facts.

For tenants, the protection is similar. If you are suspected in a case of damage in your co-ownership in Mimizan, know that your voluntary questioning time will not reduce your right to time-limited police custody. Concretely, if you spend 3 hours in questioning in the morning, then are placed in police custody at 2 p.m., it can last until 2 p.m. the next day, not until 11 a.m.

Real estate professionals must also integrate this rule. A developer in the Landes region involved in an investigation for breach of planning law benefits from this clarification. Preliminary questioning with investigating authorities does not encroach on the legal time limit for police custody in case of subsequent placement. This allows calm collaboration with authorities without fear of procedural prejudice.

undefined, I have encountered cases where this distinction made all the difference. A client, manager of a real estate agency in Mont-de-Marsan, had been extensively questioned about suspicions of misleading advertising. When police custody was decided, his lawyer could rely on this case law to ensure that the 24-hour limit began at the moment of formal placement, thus preserving the time necessary for defence.

Four tips to avoid this type of dispute

• Immediately consult a specialised lawyer as soon as you are summoned by law enforcement, even for simple questioning. Many think "it's not serious" as long as they are not in police custody, but early advice can prevent procedural errors.
• Scrupulously note the times of each interaction with the police or gendarmerie. The arrival time, the moment you are informed of your status (voluntary questioning or police custody), break times. These precious notes could be crucial in case of challenge.
• Systematically demand written notification when you move from voluntary questioning to police custody. This formality is your proof of the exact moment when the coercive measure begins, and thus the calculation of the legal time limit.
• Never presume the duration of a procedure. Even questioning that seems routine about a boundary or easement dispute can lead to police custody. Keep in mind that your rights differ radically depending on the regime applied.

Deep dive: related case law and developments

This 2001 decision fits within a consistent line of case law. Already in 1995, the Court of Cassation had affirmed in judgment No. 95-80.123 that "the duration of police custody must be assessed independently of time spent in voluntary questioning". It thus confirms an orientation protective of procedural rights while maintaining a clear distinction between regimes.

More recently, the law of 14 April 2011 strengthened guarantees during police custody, notably with earlier access to a lawyer. However, the principle described in our judgment remains valid: the legislator has not modified the rule of non-deduction of voluntary questioning time. The trend in courts remains constant on this point.

What few people know: this case law benefits both investigation and defence. For investigation, it allows not to restrict voluntary questioning for fear of reducing police custody time. For defence, it guarantees that the 24-hour limit (or 48, 72, 96 hours depending on cases) is a full time of deprivation of liberty, not reduced by periods when the person was free to leave.

For the future, this jurisprudential stability is reassuring. In a field where reforms are frequent, having a fixed point on this technical question allows litigants and legal professionals to secure their actions. However, be careful: this rule only applies to truly voluntary questioning, not to questioning disguised as police custody.

Frequently asked questions

Q: If I am questioned voluntarily for 6 hours, then placed in police custody, how long maximum can I stay there?
A: The 6 hours of voluntary questioning do not count. Police custody can last up to 24 hours from the moment you are formally placed under this regime, subject to possible legal extensions.

Q: How do I know if I am in voluntary questioning or police custody?
A: In voluntary questioning, you can leave at any time. In police custody, you are detained against your will and you must be notified of your rights in writing, including the right to a lawyer. In case of doubt, ask the investigators clearly.

Q: Does this rule also apply to witness questioning?
A: Yes, the distinction voluntary questioning/police custody applies to any person, whether suspect, witness, or assisted. The person's status does not affect the calculation of time limits.

Q: What to do if I think my "voluntary" questioning was actually disguised police custody?
A: Record all elements (you were not free to leave, you were prevented from contacting a lawyer, etc.) and consult a lawyer without delay. These facts could allow challenging the regularity of the procedure.

Q: Is this case law still valid after recent reforms?
A: Absolutely. The principle of non-deduction of voluntary questioning time from police custody duration has not been challenged by subsequent legislative modifications.

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