Police custody: when the police change departments, do your rights remain the same?

Imagine you are a property owner in Tarnos, in the Landes. You have let your flat to a tenant who, one evening, is placed in police custody (a measure of deprivation of liberty during an investigation) by the municipal police for night-time disturbance. A few hours later, the gendarmes of Saint-Paul-lès-Dax take over the case because other more serious facts are suspected. A question then arises: must you be informed again of your rights, such as the right to notify a relative or to consult a solicitor?

This situation, although criminal, indirectly affects every property owner or real estate professional. Indeed, a tenant involved in proceedings can impact your letting management, and you yourself could one day be concerned by an investigation related to your activity. But what exactly does this change in daily practice?

The Court of Cassation, in its decision of 13 April 2023, provides a clear answer: no, rights do not need to be renewed during a simple transfer between investigation departments. A position that simplifies procedures, but raises questions about the protection of individual liberties. Let's see together what this means for you.

The facts: a story as it happens every day

The case begins like many others. Mr Z, a father, is placed in police custody by a first investigation department for suspicions of habitual violence against his minor children. At 3:50 pm, the public prosecutor (the magistrate who directs investigations) is informed, and Mr Z's rights are notified: he can notify a relative, be examined by a doctor, and consult a solicitor.

But then the case takes another turn. For organisational or territorial jurisdiction reasons, a second department takes over the measure. A police officer then draws up a report of resumption of police custody. However, he does not renew the notification of the rights provided for in articles 63-1 to 63-4 of the Code of Criminal Procedure (texts that frame the rights of persons in police custody).

Mr Z subsequently contests the regularity of his police custody, arguing that this omission constitutes a nullity (a procedural defect rendering the measure illegal). He considers that each department must inform the person again of their rights. The lower courts (tribunals that examine the facts) initially upheld this argument, thus creating legal uncertainty. But the Court of Cassation, seized as a last resort, will decide differently.

The reasoning of the court — analysed

The Court of Cassation, in its judgment, adopts a pragmatic reasoning. It first recalls the legal basis: articles 63-1 to 63-4 of the Code of Criminal Procedure, which impose the notification of rights at the beginning of police custody. These rights include, for example, the right to have a relative or employer notified, and the right to the assistance of a solicitor.

But be careful however: the court specifies that this notification obligation applies only once per police custody measure. In other words, if the measure is simply taken over by another investigation department — without interruption or new placement decision — there is no need to renew these formalities. The logic is simple: the person has already been informed of their rights, and the continuity of the measure does not justify a repetition.

This reasoning fits within a confirmation of prior case law. The court thus dismisses Mr Z's argument, which invoked a violation of his fundamental rights. It considers that the protection of individual liberties is ensured by the initial notification, and that an administrative resumption does not modify the nature of the measure. In short, it is an approach that prioritises the efficiency of the investigation, while considering that the rights were validly notified at the outset.

undefined, I have encountered cases where property owners or tenants found themselves in similar situations, with transfers between police and gendarmerie departments in the jurisdiction of Mont-de-Marsan. This decision provides a welcome clarification, but it requires a good understanding of its practical implications.

What this changes for you — concretely

If you are a landlord, this decision can indirectly concern you. Imagine that your tenant in Saint-Paul-lès-Dax is placed in police custody for neighbourhood disturbances. If the case is taken over by another department, you will not necessarily be contacted again — unless the tenant exercises their right to notify a relative. This can delay your reaction, for example to organise mediation or anticipate a potential departure.

For tenants, the situation is more direct. If you are concerned by police custody, know that your rights notified initially remain valid even in case of a change of department. You do not have to systematically request again the assistance of a solicitor or the notification to a relative. However, be vigilant: if the measure exceeds 24 hours, new formalities may apply. In the jurisdiction of Mont-de-Marsan, police custody periods can vary, but generally, it cannot exceed 48 hours without judicial authorisation.

Real estate professionals, such as estate agents or developers, must also take note. In case of an investigation related to planning or tax offences, this decision simplifies procedures. For example, if a search is conducted by the municipal police and then taken over by the gendarmerie, the rights notified at the beginning remain opposable. This can reduce the risks of procedural nullities, but requires good coordination with your solicitor.

What few people know is that this decision can also impact co-owners. If a managing agent is subject to an investigation for fraudulent management, and this is transferred between departments, the rights notified initially suffice. This can accelerate procedures, but also limit remedies based on formal defects. How to react in this case? Consult a lawyer quickly to assess your options.

Four tips to avoid this type of dispute

• Systematically document the notifications of rights: if you are concerned by police custody, request a copy of the notification report. This will serve as evidence in case of subsequent challenge.
• Consult a solicitor at the beginning of the measure: even if the rights are not renewed, the assistance of a solicitor specialised in criminal or property law can be crucial to protect your interests, especially in complex cases.
• Monitor police custody periods: police custody generally cannot exceed 24 hours without extension. If you are involved, note the start time and demand justifications in case of exceeding.
• Inform your relatives or associates: use your right to notify a trusted person, especially if your absence can impact property commitments, such as a signing appointment in Tarnos.

In-depth analysis: related case law and developments

This decision fits within a consistent jurisprudential trend. For example, in a prior judgment (Crim., 10 February 2021, no. 20-82.654), the Court of Cassation had already considered that the resumption of police custody by another department did not require new notification of rights, except in case of significant interruption. This position confirms a pragmatic approach, prioritising the continuity of the investigation.

However, there are divergent decisions in some borderline cases. For example, if the resumption is accompanied by a change in the classification of the facts (from a simple contravention to a misdemeanour), some tribunals have required new notification. The Court of Cassation, with this decision, tends to standardise practice, but developments remain possible, notably under the influence of the European Court of Human Rights.

For the future, this means that real estate professionals and individuals must remain attentive to legislative developments. The Code of Criminal Procedure could be modified to further clarify these situations, especially in a context where complex investigations, involving several departments, are increasingly frequent in areas like the Landes.

Summary and next steps

FAQ:

1. If my police custody is taken over by another department, must I be informed again of my rights?
No, according to this decision, the initial notification suffices, unless the measure is interrupted or substantially modified.

2. How does this affect a property owner whose tenant is concerned?
Indirectly: you will not be automatically contacted again, but the tenant can use their right to notify a relative to inform you, which can impact letting management.

3. What are the risks if the rights are not renewed?
The main risk is a challenge to the regularity of the police custody, but this decision reduces this risk by validating current practice.

4. What to do if I think my rights have been violated?
Consult a specialised solicitor to assess the possibility of a procedural nullity, depending on the specific circumstances of your case.

5. Does this decision apply throughout the jurisdiction of Mont-de-Marsan?
Yes, as a Court of Cassation judgment, it is binding on all French courts, including those of Tarnos and Saint-Paul-lès-Dax.

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