The rights of the person in police custody

Law n°1.533 dated 9th December 2022 notably modified article 60-9 bis of the criminal procedure code relating to the rights of the person in police custody and specified that the person in police custody can benefit a new interview with a lawyer in case of extension of the custody.

This very expected codification gives us the opportunity to recall the rights of the person in custody.

The right to be informed immediately of one's rights by the judicial police officer (article 60-5 of the criminal procedure code)

Once the person is in custody, the judicial police officer informs them of rights provided by articles 60-6 to 60-9 of the criminal procedure code.

In this regard, the police officer gives a copy of these articles, which may be translated, if necessary, into a language the person understands.

A record of the completion of this formality is signed by the judicial police officer and the person concerned. If the latter is unable or unwilling to sign, this is duly noted in the report.

The judicial police officer immediately puts the person concerned in a position to exercise their rights.

The right to be informed immediately of the alleged facts (article 60-6 of the criminal procedure code)

Any person held in custody is immediately informed by the judicial police officer of the facts under investigation and the nature of the offence alleged.

A record of the completion of this formality is signed by the judicial police officer and the person concerned. If the latter is unable or unwilling to sign, this is noted in the report.

The right to inform a third party of the custody measure in progress (article 60-7 of the criminal procedure code)

The person placed in police custody has the right to immediately inform by telephone of the measure to which they are subject :

• the person with whom they usually live,
• one of their relatives by direct line of descent,
• one of their brothers or sisters or their employer.

If the judicial police officer considers that such communication is likely to prejudice the investigation, they refer the matter to the general prosecutor or the investigating judge, who decides whether or not to grant the request.

A record of the completion of this formality is signed by the judicial police officer and the person concerned. If the latter is unable or unwilling to sign, this is noted in the report.

The right to be examined by a physician (article 60-8 of the criminal procedure code)

The person placed in police custody has the right, at their request or at the request of the person whom they have been able to notify in accordance with article 60-7 of the criminal procedure code, to be examined by a physician designated by the General Prosecutor, the investigating judge or the judicial police officer.

In the event of prolongation of the custody, the person has the right to be examined a second time.

At any time, the general prosecutor, the investigating judge or the judicial police officer may ex officio designate a physician to examine the person in custody.

In the absence of a request from the person in custody, the general prosecutor, the investigating judge or the judicial police officer, a medical examination shall be operated if a member of the family requests it; the physician shall be designated by the general prosecutor, the investigating judge or the judicial police officer.

The physician should examine the person in custody without delay and appreciate the compatibility of their health status with the measure of custody. The related certificate is placed in the file.  

Pending the arrival of the physician, the interview of the person concerned is continued; the request for an examination cannot have the effect of suspending the procedure.

A minute of the completion of this formality is signed by the judicial police officer and the person concerned. If the latter is unable or unwilling to sign, this is noted in the minutes.

The right to remain silent (paragraphs 1 and 2 of article 60-9 of the criminal procedure code)

The person in custody is informed of the right not to make any statement. This is mentioned in the report.

The person is also informed that in case of waiving this right, any statement made during police custody may be used as evidence.

The right to the assistance of a lawyer (paragraphs 3 and following of article 60-9 of the criminal procedure code)

The person in police custody has the right to be assisted by a lawyer as of the very beginning of the custody period.

However, the person may expressly waive this assistance at any time, provided that the person has previously been informed of the right not to make a statement. This is mentioned in the minutes.

The person is informed of this right from the beginning of the custody.

If the person in custody is unable to appoint a lawyer or if the appointed lawyer cannot be reached, they may request that one is appointed for them by the President of the Court of First Instance (« Tribunal de Première Instance ») on the basis of a roster established by the Chairman of the Bar Association of Monaco.

The lawyer is informed by the judicial police officer of the legal qualification and circumstances of the offence. A minute is set by the judicial police officer and signed by the lawyer.

If the lawyer does not appear within one hour from the notification, the judicial police officer may decide to begin the interview.

If the lawyer appears after the expiry of this period, while the interview is in progress, it is interrupted at the request of the person in custody to enable him having a confidential interview with the lawyer under the conditions provided by article 60-9 bis and to enable the lawyer to acquaint himself with the documents mentioned in article 60-9 bis paragraph 2 of the criminal procedure code.

It is the responsibility of the judicial police officer to inform the person in custody of the right to interrupt the interview. If the person in custody does not request any interview with their lawyer, the latter may attend the interview in progress upon arrival.

The right to a maximum one-hour interview with the lawyer (article 60-9 bis of the criminal procedure code)

From the beginning of the police custody, the lawyer may meet with the person in custody under conditions that guarantee the confidentiality of the meeting, which must not exceed one hour.

When police custody is extended, the person in custody can have a new confidential interview with their lawyer under the same conditions and for a period not exceeding one hour.

The person in custody is informed of this right as soon as the extension is notified.

If the lawyer does not appear within one hour as of the notification, the judicial police officer may decide to begin the interview without them.

If the lawyer appears after the expiry of this time limit, while an interview is in progress, it is interrupted at the request of the person in custody to enable them to have a confidential interview with their lawyer under the conditions provided by article 60-9 bis of the criminal procedure code and to enable the lawyer to acquaint themself with the documents provided by article 60-9 bis, paragraph 2.

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

The lawyer may assist the person in custody throughout the interview with a view to establishing the truth. They can see the minutes of the interview of the person they are assisting, as well as the minutes set in accordance with article 60-5 of the criminal procedure code and ask for a copy of this minute.

In the event of a clear breach of the proper conduct of the interview, the police officer may, at any time, put an end to it. They shall notify the General Prosecutor or the investigating judge, who may, if necessary, refer the matter to the President of the Court of First Instance for the immediate appointment of a new lawyer, chosen or assigned.

If the victim is faced with the person in custody, they may be assisted by an appointed or assigned lawyer under the conditions of article 60-9 of the criminal procedure code.

Without prejudice to the exercise of the rights of the defense, no information gathered during police custody may be disclosed to anyone.

The minutes of the interview referred to in article 60-11 of the criminal procedure code shall mention the presence of the lawyer at the acts in which they are present.

The right to an interpreter (article 60-12 of the criminal procedure code)

If the person placed in police custody does not understand or speak French, the notifications and interviews provided for in the previous articles must take place in a language they understand.

If necessary, an interpreter is requested by the judicial police officer.

If the person in custody has a disability that prevents them from communicating, they must be assisted by any qualified person who masters a language or method that enables them to communicate with the person.