Property-related police custody: when the police summons you without constraint

Imagine you are the owner of an apartment in Grasse, in the Old Quarter. One morning, you receive a summons from the police to "clarify certain facts" concerning a rental you manage. You voluntarily present yourself at the police station, without being arrested or constrained. But here's the thing: for several hours, you are questioned about suspicions of property fraud before being officially placed in police custody (a measure depriving liberty during an investigation). You wonder: is this procedure regular? Have your rights been respected?

This situation, although stressful, is more common than one might think in the property sector. Between co-ownership disputes, neighbour conflicts, suspicions of illicit works, or rental problems, many owners and professionals can be summoned by law enforcement. The fundamental question is simple: from what moment must your rights be clearly stated?

The Court of Cassation, in a 1998 decision still relevant today, has provided a precise answer that balances the needs of the investigation and the protection of individual rights. This case law (body of judicial decisions) directly concerns any property owner, tenant, estate agent, or developer who might be heard as part of a preliminary investigation (police investigation before formal charge).

The facts: a story as happens every day

Let's go back to 1997. Mr. Dubois, owner of several properties in the Cagnes-sur-Mer region, is suspected of having carried out works without authorisation in a listed building. The gendarmes conduct a search (domiciliary visit authorised by the court) and discover concerning elements. They summon Mr. Dubois for a hearing at the police station.

On 8 October 1997, Mr. Dubois voluntarily presents himself at 9:30 am. He is not arrested, nor subjected to any physical constraint. For nearly two hours, the investigators question him about the works carried out, invoices, declarations to the planning services. It is only at 11:25 am, almost two hours after his arrival, that an official report is drawn up to place him in police custody. At that precise moment, his rights are notified to him: right to remain silent, right to a solicitor, right to a doctor, right to notify a relative.

Mr. Dubois and his solicitor subsequently contest the regularity of the procedure. They argue that the notification of rights should have occurred at the beginning of the hearing, at 9:30 am, and not at 11:25 am. According to them, the entire phase of questioning prior to official placement in police custody would be tainted by irregularity and should be annulled (declared null and void).

The case goes up to the Court of Cassation, the highest French judicial court. The question put to the magistrates is technical but crucial: in a preliminary investigation, when a person voluntarily presents themselves to a police summons, at what exact moment must their rights be notified? And above all, should the duration of police custody be calculated from arrival at the police station or only from official placement?

The court's reasoning — dissected

The judges of the Court of Cassation meticulously analysed the applicable texts. They based themselves on Articles 77 and 78 of the Code of Criminal Procedure (set of rules governing judicial procedures in criminal matters). These provisions provide that, within the framework of a preliminary investigation, a summoned person can be heard before being placed in police custody, provided they present themselves without constraint.

The reasoning is subtle but logical. The Court clearly distinguishes two phases: first, the free hearing of the voluntarily summoned person; second, the actual placement in police custody when suspicions become clearer or stronger. During the first phase, the person is not deprived of their liberty in the strict sense: they came of their own accord, they could theoretically leave. It is only when they are officially placed in police custody that they are deprived of liberty.

In other words, the notification of rights provided for in Articles 63-2, 63-3, and 63-4 of the Code of Criminal Procedure (right to silence, right to a solicitor, right to medical care, right to notify a relative or employer) is only obligatory from the moment the person is effectively deprived of liberty. In Mr. Dubois's case, this notification at 11:25 am was therefore perfectly regular, since it was at that precise moment that he was officially placed in police custody.

The Court also specifies an important point: the duration of police custody must be calculated from the time of arrival at the police service, and not from the notification of rights. This clarification is essential as it prevents abuses: an investigator could not "drag out" a free hearing for hours before officially placing in police custody to unduly prolong the duration of the measure.

What few people know: this decision represents a confirmation of prior case law rather than a revolution. It fits within a logic of balance between the efficiency of the investigation (allowing police to gather initial elements before taking a constraining measure) and the protection of fundamental rights (ensuring that any deprivation of liberty is accompanied by legal guarantees).

What this changes for you — concretely

But what exactly does this change for you, a property owner in Grasse or a tenant in Cagnes-sur-Mer? This decision has very concrete practical implications depending on your situation.

If you are a property owner-landlord and are summoned by the police for suspicions of undeclared rental, know that your initial hearing, if you present yourself voluntarily, can perfectly take place without your rights being notified immediately. It is only if the investigators decide to place you in police custody that this notification becomes obligatory. undefined, I have encountered cases where owners, panicked by a summons, thought the entire procedure was irregular because their rights had not been read to them upon arrival. This decision clarifies things: no, this is not an irregularity.

If you are a tenant suspected of illicit subletting of an apartment in Cagnes-sur-Mer, the same logic applies. Your voluntary presence at the police station does not equate to police custody. The police can question you, gather your explanations, before possibly deciding to place you in police custody. Only at that moment must your rights be notified.

For property professionals (agents, developers, managing agents), this decision is also important. Imagine you are summoned as part of an investigation into misleading commercial practices. Your initial hearing can take place without particular formalities. But be careful however: as soon as the measure becomes constraining (police custody), the 24-hour clock (maximum initial duration of police custody, extendable to 48 hours in certain cases) starts from your arrival at the police station, not from the notification of rights.

In short, this case law creates a sort of "airlock" between voluntary summons and deprivation of liberty. An airlock that allows investigators to quickly verify whether police custody is justified, while protecting individuals' rights as soon as the measure becomes truly constraining.

Four tips to avoid this type of dispute

• Never ignore a police summons: If you receive a summons for a free hearing, present yourself with a solicitor. Even if you are not yet in police custody, having advice from the start can avoid many setbacks.
• Note times precisely: From your arrival at the police station, note the exact time. If you are placed in police custody, also note the time of this notification. These elements could be crucial if the regularity of the procedure is contested later.
• Demand written notification of your rights: When you are placed in police custody, ensure that the notification of your rights appears in the report and request a copy. This formality is not optional.
• Immediately consult a specialised solicitor: As soon as you are placed in police custody, exercise your right to the assistance of a solicitor. In property matters, favour a solicitor who knows both criminal law and property law.

Deepening: related case law and evolutions

This 1998 decision fits within a coherent case law line. Already in 1993, the Court of Cassation had considered that the hearing of a voluntarily summoned person was not subject to the formalities of police custody (Cass. crim., 3 November 1993). It has been confirmed by many subsequent decisions, notably in 2005 (Cass. crim., 12 July 2005) and 2010 (Cass. crim., 9 June 2010).

The trend of the courts is clear: carefully distinguish the free hearing (where the person comes voluntarily and can leave) from police custody (where they are deprived of liberty). This distinction allows not to paralyse preliminary investigations while guaranteeing fundamental rights as soon as constraint appears.

For the future, this case law remains relevant despite legislative evolutions. The legislator has strengthened the rights of those in police custody over the years (extending the deadline for access to a solicitor, possibility of medical observations), but the fundamental principle remains: notification of rights is linked to actual placement in police custody, not to the simple hearing.

In practice: what to do

If you receive a police summons:
1. Immediately contact a solicitor specialised in property and criminal law
2. Present yourself at the agreed time with your solicitor
3. Note the exact time of your arrival
4. If you are placed in police custody, demand written notification of your rights
5. Exercise without delay your right to the assistance of a solicitor

If you are already in police custody:
1. Immediately request to contact your solicitor
2. Have any health problems noted by a doctor
3. Notify a relative or your employer if necessary
4. Use your right to remain silent if you wish
5. Do not sign any document without your solicitor's advice

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