Police Raids, Searches and Garde à Vue: What Are Your Rights?

Assaults, searches and garde à vue

Today, amid general ignorance or indifference, individuals, families or associations suffer police or gendarmerie assaults of great brutality on the basis of the mere accusation of being a “cult”. Violent searches (perquisitions) are carried out early in the morning, in front of traumatised children, and irregularities occur every time (see the l’Essentiel case or Le Moulin des Vallées and other

police assaults on spiritual minorities in France)

The psychological consequences of this kind of barbaric assault (and most often unjustified) are one of the most painful aspects of these interventions. These shows of force have an intimidating effect within spiritual minorities. The effect is guaranteed, and the victims must then dress their wounds.

What are your rights in such situations? (based on extracts from the Guide juridique)

Searches

Types of investigation

Rules applicable to all searches

Body searches

Garde à vue (duration, course, conditions)

The signature

Raid testimonies

The attitude of victims of assaults, searches or garde à vue

Guide to legal self-defense (source) + the “complaint for calumnious denunciation”

In 2001, Mr Daniel Vaillant,

then Minister of the Interior, declared (in the wake of the September 11 attacks in the United States):

“(It is necessary to extend) the possibility for the police and the national gendarmerie to carry out searches. (…) Criminal procedure does not currently allow searches to be carried out in the course of a preliminary investigation without the person’s consent, even for particularly serious offences, contrary to what is possible in a flagrante delicto investigation or in the course of a judicial investigation. This current rule considerably weakens the effectiveness of repression, because prosecutors often hesitate to open a judicial investigation — a particularly cumbersome procedure — solely to make a search possible. It is therefore both logical and necessary to put an end to this situation, which hampers the effectiveness of our investigative services, at a time when immediate intervention is more than ever required to counter a serious threat linked to terrorism.”

On these foundations, which tend to legalise practices we had until then believed to be the preserve of dictatorships, the victims of such methods ought to know the legal framework governing such actions:

Searches

The law does not specify what a search is, but a ruling of the criminal chamber of the Cour de cassation (which gives an interpretation of the law) defines it as “the search, inside a normally closed place, in particular at the home of a private individual, for evidence making it possible to establish the existence of an offence or to determine its perpetrator” (j7 under art. 56 of the Code of Criminal Procedure, “CPP”).

Where searches are concerned, the law particularly protects “domiciles”, in particular by prohibiting (with exceptions) searches there at night. The notion of domicile is broad: it covers any possible place of residence (for example a hotel room or an office) where the person, “whether they live there or not, has the right to say they are at home, whatever the legal title of their occupancy and the use assigned to the premises” (j7 under art. 56 of the CPP). The following, by contrast, are not domiciles: a car, a craft or industrial workshop, premises reserved for sales…

Depending on the type of investigation

Searches are subject to a very different regime depending on the three types of investigation.

A) Flagrante delicto (art. 56 of the CPP). Police officers may search the homes of persons “who appear to have taken part” in the flagrant crime or offence, without their assent.

There are two common cases:

– a person in garde à vue (police custody) suspected of a flagrant offence, whose home the police search.

– a place with external signs suggesting that a flagrant offence is being committed inside (example: cannabis plants on the windowsill).

B) Preliminary investigation (art. 76 of the CPP, the most frequent case of searches in spiritual minorities, following a complaint for example). Searches may not be carried out without the assent of the person at whose home they take place. This agreement must be given in writing. The person’s assent is not necessary, however, when a liberty and custody judge (juge des libertés et de la détention) has authorised the search in writing in cases concerning the holding of weapons and explosives, narcotics (art. 76.1 of the CPP) and terrorism (art. 706.24 of the CPP)

C) Judicial investigation (art. 92 to 97 of the CPP). In principle, the investigating judge should travel with his clerk to carry out the search “in all places where objects useful to the manifestation of the truth may be found” (art. 94 of the CPP). It may therefore take place at the home of someone who has not been placed under formal investigation.

In practice, the investigating judge does not travel himself, but instructs the police to do so in his place under letters rogatory (commission rogatoire).

Rules applicable to all searches

The persons at whose home the search takes place must be present. Otherwise the police must call upon two witnesses “apart from persons under their authority” to attend (art. 57 of the CPP).

The objects and documents seized are inventoried and placed under seal in the presence of the persons or witnesses, who sign the search report. As with garde à vue, signing is not compulsory: a refusal will then be noted in the report. It will be easier to have the search annulled on procedural grounds if one has refused to sign the report.

Home searches may not “begin” before 6 a.m. or after 9 p.m. (art. 59 of the CPP). Outside domiciles, these time rules do not apply.

However, over the last fifteen years or so, a series of laws has widened the derogations so as to allow night-time home searches in all three types of investigation. For these night searches, a special authorisation from an investigating judge or a liberty and custody judge is necessary. (Note: with the new Perben 2 law, searches will be able to take place at night. The text also provides for the possibility of installing microphones and cameras in a private home, the extension of garde à vue up to 96 hours, and the normalisation of the use of infiltration and anonymous testimony!)

Note also that computer equipment is often seized when it would suffice to make copies of the hard drives. You can suggest that copies be made, and that your equipment not be taken away, if the equipment is indispensable to your professional activity.

Body searches

– Security pat-down (see details on the Guide juridique site)

– Strip search

The “strip search” (fouille à corps) can be very thorough and lead the person searched to end up naked. Bags and luggage carried by the person are searched in the same way, by the police officers themselves.

“Internal body investigations” (finger in the anus, in the vagina) must be carried out by a doctor (art. 63-5 of the CPP). The doctor may also choose to take an X-ray.

Garde à vue

Definition

Garde à vue (GAV, police custody) is a measure decided by the police, “under the supervision” of the prosecutor or of the investigating judge in the case of a judicial investigation. The police may place in custody a person against whom there exist “one or more plausible reasons to suspect that they have committed or attempted to commit an offence” (art. 63 and 77 of the CPP). The “plausible reasons” are terms vague enough to allow the police to place whomever they wish in custody.

The few articles of law that detail garde à vue are precise as regards procedure, but very evasive as to the actual conditions of detention: these therefore vary considerably. The Sarkozy circular of 11 March 2003 gives certain instructions to improve the treatment of persons held in custody, but a circular does not have the force of law, and the police can always invoke material or security difficulties in order not to apply them.

Duration of the garde à vue (art. 63 and 77 of the CPP)

Garde à vue is decided by the police for a period of twenty-four hours (it may last less). If it was preceded by an identity check, the custody is considered to have begun at the start of that check (art. 78-4 of the CPP).

Its renewal for a further twenty-four hours is decided by the prosecutor, sometimes after he has interviewed the person in custody. It can therefore last forty-eight hours in total. For acts of terrorism or drug trafficking, the GAV can be extended by a further forty-eight hours, i.e. ninety-six hours in total (art. 706-23 and 706-29 of the CPP).

Course of the garde à vue

The police are required to do a certain number of things from the start of the GAV, and at the latest within three hours: inform the prosecutor, inform the person of their rights, have their relatives notified, the doctor (for a medical certificate, in case of violence for example) and the lawyer if the person so requests.

In certain cases (criminal conspiracy, procuring, aggravated extortion, and crimes or offences committed by an organised gang), the lawyer may not be seen before the 36th hour. In cases of terrorism or narcotics (custody lasting up to ninety-six hours), the lawyer may only be seen at the 36th hour, and at the 72nd in the event of an extension.

If the person knows a lawyer’s contact details, the police cannot refuse to call that lawyer. If the person does not know one, they can choose to ask for a court-appointed lawyer (“commis d’office”)

The interview with the lawyer is confidential (the police are not present) and may not last more than thirty minutes. The lawyer is the only person from outside the police station whom the person in custody may meet and from whom they may receive advice

At this stage, the lawyer has no access to the file, and has no information about the investigation other than what the person in custody tells him. He can check the conditions in which the GAV is being conducted and make written observations which will be added to the proceedings.

Living conditions in custody

As already noted, the conditions of a garde à vue can vary considerably. The law does not specify how persons in custody must be fed, what rest periods they may benefit from, or how the cells must be fitted out. The Sarkozy circular of 11 March 2003 instructs that hot meals be distributed at mealtimes.

It happens that persons arrested at the same time find themselves isolated, or are forbidden to communicate with one another.

Psychological pressure

Garde à vue causes a destabilisation that makes it possible to exert psychological (sometimes physical) pressure on people.

To “make people talk”, the police often bluff. They can lie about everything: about what they know or do not know, about the evidence they might hold, about denunciations, about what one risks criminally, about the next steps in the proceedings… Police pressure can be felt at any moment during the custody: the aim is to make suspects crack during questioning.

The interviews

This is the moment when the police ask questions and write down everything one says on a document called the “interview report” (procès-verbal d’audition). During this questioning, there is no obligation whatsoever to answer the questions. “The person has the choice of making statements, answering the questions put to them, or remaining silent”: this formula remains legal even though, since the Internal Security Law (LSI) of 18 March 2003, the police are no longer obliged to recall it when notifying the person of their rights. One can say “I have nothing to declare” (and not “I don’t know anything”, which amounts to declaring something), and this is noted as such in the report. The only question it is compulsory to answer concerns identity: surname, first name, date and place of birth, parents’ names.

One can choose not to answer the questions, but to make statements. One can then ask the officer to write down what one has said, even if he is reluctant, and stick strictly to those statements without being drawn into answering the questions.

It is not the police officer who has the power to charge, but the prosecutor: the point is not to be credible or likeable in front of the police. What counts after questioning is not the officers’ opinion, but what is written in the interview report, and whether or not it was signed.

The signature

Signing means acknowledging what the document reports. One must therefore read everything very attentively before signing anything, whether the statements, the search, the notifications, etc. One can ask to have corrected whatever does not seem right. Some advise signing as close as possible to the written text, in order to avoid possible later additions.

Signing is not compulsory. Anything that is not signed is easier to contest at trial. This applies to the statement as much as to the notification of the end of custody.

Testimony:

“I was pushed violently back onto my bed and screamed at while a woman in uniform forcibly tore my daughter from the bed she was clinging to.”

Milcah is a mother. Her seven children were taken from her for several weeks.

“As Christian missionaries of The Family, we have been led to travel in many countries and we have sometimes been through difficult things in countries more or less welcoming. But I must say, as a French citizen, that it is on French soil that I lived through my most traumatic experience.

It was in June 93 and that morning, at 6 a.m., we were startled awake because our house was surrounded by fifty gendarmes, armed to the teeth, with bulletproof vests and police dogs. They pounded violently on our door. Within seconds, and in every room, all the occupants were subdued and threatened with a semi-automatic weapon. The police were evidently expecting to find us armed and dangerous, whereas we are against violence in all its forms. I wanted to rush to comfort my little 4-year-old girl who, sitting in her bed, was holding out her arms to me and crying. I was pushed violently back onto my bed and screamed at while a woman in uniform forcibly tore my daughter from the bed she was clinging to. All this time, our daughter could see us under the threat of weapons and with handcuffs on our wrists. All the children in the house were taken away in their pyjamas to the gendarmerie van.

During the forty-eight hours of custody and questioning, we were accused of the worst things. They lied to us to weaken us and make us confess to things we were not guilty of. I was insulted, humiliated, spoken to coarsely, and it was barely after eight hours under arrest that we were given a sandwich and a coffee. During the questioning, I could not find out what was happening with my children. I was worried because I had a son who had had a very high fever the night before. The children, for their part, underwent several examinations by paediatricians, gynaecologists, psychiatrists and psychologists. My daughters were then 6, 11 and 13 years old. These humiliating examinations remain within them to this day like a nightmare. They were told all sorts of horrors about their parents: that they were never going to see them again, that they were not loved, and that no one would even try to see them again. They were placed in institutional care with the DASS, and it took us a month to get them back.”

The Senate’s legal studies department produced a comparative-law study on garde à vue. Countries studied: Germany, England and Wales, Belgium, Denmark, Spain and Italy. The Senate states that the comparative analysis it carried out “highlights in particular three specific features of French legislation: the possibility of placing a person in garde à vue for a minor offence, the absence of constitutional provisions on garde à vue, and the limited nature of the lawyer’s involvement during garde à vue”.

Read also the “posts” of Maître Éolas on garde à vue: Garde à vue 1 Garde à vue 2

Note that, according to some sources, from the point of view of European law, French-style garde à vue, as it is conducted in practice, may be illegal. That is the view of several lawyers, in any case, some of whom call for “raising the nullity of gardes à vue contrary to Strasbourg case law”. Indeed, if a court declares a garde à vue null and void, the proceedings could be annulled. (source)

The attitude of victims of assaults or searches

CICNS has been able to note, through the testimonies it has gathered, that members of spiritual minorities experience genuine trauma in these brutal situations. The disproportion between the resources deployed by the forces of order and the everyday reality of the victims of these assaults produces shocks with persistent after-effects. Police and gendarmerie services are prepared to encounter terrorists and criminals, whereas they have before them harmless and peaceful people. This mismatch, a direct consequence of disinformation and the witch hunt, is the source of many dramatic excesses.

However, it is useful to point out that police and gendarmerie officers, and by extension most of the officials involved in such situations, do not always have a personal opinion on the question of “cults” and are, most often, simply doing their job, even if they are often themselves victims of the collective psychosis.

It is therefore desirable to receive their visits by recognising that they are not to blame, and to engage in a calm dialogue with them. In some testimonies, human contact with these people revealed that such a welcome made it possible to defuse the event, whereas reactions of panic, shouting and anger had no effect other than to increase hostilities.

CICNS invites members of spiritual minorities to receive these situations, should they arise, as opportunities to affirm without fear and without excessive reaction the value of their life choices (as well as their rights — read this page attentively to understand them). Generally speaking, the “victim” attitude and the tendency to lose one’s composure in revolting situations never produce anything but an aggravation of the conflict (an unplanned garde à vue can result from a search experienced confrontationally, for example).

Complaint for calumnious denunciation and the prohibition of defamation

There is a remedy against the complaints so easily filed with the gendarmerie today, and for which the informers believe they enjoy immunity: the complaint for calumnious denunciation. Such a denunciation is punishable by 5 years’ imprisonment and €45,000 in fines. A template letter is available here.

A piece of information that could have practical use: the Hadopi law is open to criticism on more than one count but, as it stands, it nevertheless makes the prohibition of defamation on the Internet much stricter, in particular in “discussion forums” (+ another link)

Read also “Police assaults on spiritual minorities in France”