Police Custody and Drug Trafficking: 48-Hour Extension and Right to a Solicitor

Imagine for a moment: you are the owner of a property in Brignoles, rented to a tenant. One day, the police arrive, search your flat and place your tenant in police custody for drug trafficking. You wonder: "What about my rights in all this?" But the question that arises today concerns above all the rights of the person in custody: how long can they be held? When can they see a solicitor?

This decision of the Court of Cassation of 3 April 1996 answers a specific question: in the context of an investigation into drug trafficking, police custody may be extended by an additional 48 hours, beyond the usual durations. And the time limit for meeting with a solicitor can then reach 72 hours. But be careful: if the custody lasts less time, compliance with the legal time limits is imperative.

In short, this decision protects the rights of the defence while giving investigators the necessary time when dealing with serious offences. But what does it change for you, owner or tenant in Toulon? Nothing directly, but understanding the rules can save you from unpleasant surprises if you are involved in proceedings.

The Facts: A Story Like Many Others

Mr X, a resident of Brignoles, was placed in police custody on 10 April 1995 for alleged drug trafficking. He was held for 55 hours and 30 minutes, just over two days. During this period, he asked to see a solicitor. But the police only allowed him to meet his solicitor after the 20th hour, which is normal under the law for this type of offence. However, the Indictment Division of the Court of Appeal considered that this time limit had not been respected and annulled all investigative acts carried out after the 20th hour.

The question is simple: the custody lasted 55h30, which is less than 72 hours. But Article 706-29 of the Code of Criminal Procedure (CCP) allows an additional 48-hour extension, and in this case, the time limit for seeing a solicitor may be extended to 72 hours. However, here the custody did not reach 72 hours. The Court of Appeal deduced that the 20-hour limit applied, and since it was not established that Mr X had seen his solicitor within 20 hours, it annulled the subsequent acts.

The Court of Cassation quashed this decision: it recalled that when custody is authorised for a maximum duration of 72 hours (including extension), the time limit for the interview with the solicitor is 72 hours, regardless of the actual length of custody. In other words, as long as the maximum legal duration is not exceeded, the 72-hour limit applies. Consequently, the investigative acts are valid.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 706-29 of the Code of Criminal Procedure. This text provides that for drug trafficking offences, police custody may be extended by an additional 48 hours beyond the usual durations (24 hours in preliminary investigations, 48 hours in flagrante delicto). And in this case, the time limit for consulting with a solicitor is extended to 72 hours (Article 63-4, last paragraph of the CCP).

The reasoning is as follows: the law sets a ceiling. If custody can last up to 72 hours, then the time limit for seeing a solicitor is 72 hours, even if the actual custody is shorter. In this case, Mr X was held for 55h30, which is less than 72 hours. Therefore, the 72-hour limit for the solicitor applies. The Court of Appeal erred in applying the 20-hour limit.

What few people know is that this decision is a strict interpretation of the law: it does not create a new right, it merely reminds that special texts (for drugs) derogate from general rules. The lower courts must therefore check whether the maximum legal duration has been respected, not the actual duration.

undefined, I have come across cases where solicitors tried to have acts annulled by invoking non-compliance with the 20-hour limit, without taking into account the possible extension. This decision puts an end to these abusive challenges.

What It Changes for You — Practically

For landlord owners in Toulon: if your tenant is involved in trafficking, know that the police can hold them for up to 72 hours without it being abnormal. You cannot demand their release before this period. However, if the custody exceeds 72 hours without a special extension, there is a violation of the law.

For tenants: if you are placed in custody for drugs, you are entitled to a solicitor within 72 hours. Do not panic if you do not see them within 20 hours: it is legal. But insist on seeing a solicitor within 72 hours, otherwise the acts could be annulled.

For real estate professionals: if you are a witness or victim of trafficking in a property you manage, you may be heard as a witness. Your custody, if it occurs, will be subject to general rules (24 hours max), unless you are implicated.

A concrete example: an owner in Brignoles sees his tenant arrested. The custody lasts 55 hours. The solicitor intervenes at the 50th hour. This is valid. No point in challenging.

Four Tips to Avoid This Type of Dispute

• Know your rights in custody: if you are arrested, immediately ask to see a solicitor. Note the time of your request. If you have not seen one after 72 hours for a drug case, report it to your solicitor.
• Check the duration of custody: if you are close to a person in custody, note the time of placement. If it exceeds 72 hours without extension, contact a solicitor.
• Keep evidence: keep any document (custody record, police log). In case of challenge, they will be useful.
• Consult a lawyer solicitor: in Toulon or Brignoles, a criminal law solicitor can check whether the time limits have been respected and bring a nullity action if necessary.

Further Details: Related Case Law and Developments

Before this decision, some Courts of Appeal applied the 20-hour limit even in drug cases, creating inconsistencies. The Court of Cassation therefore unified the case law. Since then, several decisions have confirmed this position, particularly for other serious offences (terrorism, organised crime) where special extensions exist.

In 2011, the law amended Article 706-29 to extend these possibilities. But the principle remains the same: the time limit for the solicitor is aligned with the maximum duration of custody, not the actual duration.

However, note that this special regime only applies to listed offences (drug trafficking, terrorism...). For simple possession, the general rules apply. A solicitor will be able to tell you if you are concerned.

Summary and Next Steps

FAQ:

• Q: Can I be held in custody for 72 hours without seeing a solicitor? A: Yes, if it is for drug trafficking and the extension is authorised. You must see a solicitor before the end of 72 hours.
• Q: What if I have not seen a solicitor within 72 hours? A: Your solicitor can request the nullity of acts after the 72nd hour. But if the custody lasted less than 72 hours, the limit is still 72 hours.
• Q: Does this decision apply to my tenant? A: Yes, if your tenant is in custody for trafficking. But it does not directly concern you, unless you are involved.
• Q: What remedies are available if the custody is illegal? A: Apply to the judge of liberties and detention (JLD) or the Indictment Division to request the nullity of the acts.
• Q: Can I challenge a search if my tenant was illegally held in custody? A: Yes, if the custody is annulled, subsequent acts (search, seizures) can be annulled.

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