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The right to be assisted by a lawyer when being freely interviewed by the Police

09/05/2023

You have been summoned to a free interview by the Police and wish to know if you can be assisted by a lawyer?

Law n° 1.533 of December 9, 2022 relating to the preliminary inquiry (« enquête préliminaire ») and the alternative measures to prosecution, recenty framed the conditions of the presence of the lawyer in the context of a free interview (« audition libre »).

The free interview differs from police custodygarde à vue ») as it is operated without duress on the part of the Police against the person being interviewed.

In this case, the person goes on their own to the place determined by the summons in order to be interviewed in the context of an ongoing investigation or inquiry.

According to the new provisions of the Criminal procedure code applicable as of March 1, 2023, the right to the assistance of a lawyer during a free interview depends on the existence of a suspicion and age of the person being interviewed.

If you are interviewed as a suspect

A suspect is a person against whom there are reasonable grounds for suspecting that they have committed or attempted to commit an offence (article 60-15 of the Criminal procedure code).

Pursuant to the provisions of the aforementioned article (3°), a suspect can only be subject to a free interview after having been previously informed « on the right to the assistance of a lawyer under the same conditions as those provided for police custody ».

In other words, the suspect has the right to be assisted by a lawyer as of the beginning of the interview.

If the interviewed person is unable to designate a lawyer or if the chosen lawyer cannot be reached, they may request from the President of the Court of first instance (« Tribunal de Première Instance ») to appoint a lawyer on the basis of a list prepared by the Chairman of the Bar Association of Monaco.

In any case, the appointed lawyer is informed by the police officer of the criminal qualification and circumstances of the offence. The police officer must establish a report of these diligences which has to be signed by the lawyer.

If the designated lawyer does not appear within one hour after being notified, the police officer can decide to begin the interview without them.

If the lawyer appears after the expiry of this time limit, while the interview is in progress, it is interrupted at the request of the person being interviewed in order to enable a meeting with the lawyer in accordance with the provisions of article 60-9 bis of the Criminal procedure code and to enable the lawyer to acquaint themself with the documents provided for in article 60-9 bis, paragraph 2, of the aforementioned code.

It is the responsibility of the police officer to inform the person being interviewed of their right to interrupt the interview. If the person does not request to speak with their lawyer, the latter may attend the interview in progress as soon as they arrive.

As soon as the interview begins, the lawyer may speak with the person being interviewed under conditions that guarantee the confidentiality of the interview, which cannot exceed one hour.

The lawyer may assist the person throughout the interview with a view to establishing the truth.

By reference to the provisions applicable to police custody, the lawyer should at least be able to consult the minutes of the interview of the person they are assisting.

Therefore, as soon as you receive the summons, it must be recommanded to ask the police officer in charge of the investigation to inform you of the status under which you will be interviewed so that you can assert your right to the assistance of a lawyer if necessary.

If you are interviewed as a witness

It results from article 125 of the Criminal procedure code that a witness is a person against whom there is no evidence making it likely that they may have participated, as a perpetrator or accomplice, in the commission of the offence.

Therefore, a witness can only be interviewed in a free interview without duress from the Police in the context of an investigation or an inquiry.

A witness can be interviewed by the investigating judge in accordance with the provisions of articles 125 and following of the criminal procedure code or by a police officer within the framework of an inquiry according to the provisions of articles 81-11 and following of the criminal procedure code.

The presence of a lawyer during the interview of a simple witness (as opposed to the interview of an assisted witness – « témoin assisté ») has not been specifically regulated by the legislature, which may consider for a witness to be assisted by a lawyer as useless given the absence of suspicions or evidence against them.

Nonetheless, article 81-11 of the Criminal procedure code broadly provides that in the context of a preliminary inquiry, the police officer may decide to place a person in custody, or proceed with the interview of any person under the free interview regime in accordance with Title IV bis of the code.

Title IV bis refers to the rules applicable to police custody and free interviews which provide for the right of any person subject to these measures to be assisted by a lawyer.

As a matter of principle, any statement made by a witness before a police officer is considered as an interview in criminal matters.

According to a literal interpretation of article 81-11, which refers to interviews in a non-restricted sense, it could be held that a witness has the right to benefit from the assistance of a lawyer for any type of interview, at least in the context of a preliminary inquiry.

In these circumstances, it is recommended to the person summoned as a witness to ask the police officer for permission to be assisted by a lawyer during their interview.

This request can be made by any means prior to the interview.

The police officer will decide what action to take on this request in light of the circumstances of the case.

In case of refusal, or in any other case, a witness should remember that they benefit from a specific protection ensured by caselaw which is the right of non-self incrimination. In this particular regard, the European Court of Human Rights considers that a person cannot be subject to any condemnation on the basis of incriminating statements held during a police interview operated without the possible assistance of a lawyer in violation of article 6 of the European Convention on Human Rights (see in particular in this sense, Decision Salduz c/ Turkey Nov. 27, 2008, n° 36391/92, n° 36391/92). 2008, n° 36391/92).

If you are a minor

New article 60-16 of the Criminal procedure code specifically provides that a minor under ten years cannot be interviewed by the Police in a free interview nor be put into custody (cf. article 60-13 of the Criminal procedure code).

As regards minors over ten years, article 60-16 specifies that they can only be interviewed in free interviews in the presence of a lawyer after informing, by all means, one of their legal representatives.

The provisions are sufficiently clear to leave no doubt on the obligation of the presence of the lawyer during free interviews of a minor over ten years of age in all cases.

Authors

Portrait ofGéraldine Gazo
Géraldine Gazo
Partner
Monaco
Sacha Nantas