Pre-trial custody in France: preventive or excessive?

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According to Article 11 of the Universal Declaration of Human Rights, “Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”. Under certain circumstances, this right might be upheld for security reasons, especially when calling for pre-trial custody, the practice of incarcerating a person while waiting for their judgement under specific motifs. Exposing evident issues, its use should remain exceptional. However, in France, it is used in 30% of cases. Is it really then possible to call this rate exceptional? This policy brief is exploring the ways in which pre-trial custody can be excessively used by the French justice system. Its goal is also to highlight pre-trial custody’s consequences on people affected by it, as well as for the entirety of the prison population, of such an intensive use. Lastly, this article is looking at portraying more clearly possible tracks for a truly exceptional use of pre-trial custody.

Introduction

As for June 1st, 2023, the French prison population was made up of 27.7% of defendants¹, people awaiting their judgement. They were placed under the prison system’s responsibility following their placement under “pre-trial custody”, a term institutionalised in the 1970s, even though it had already been a recurring practice. This measure consists in exceptionally incarcerating a person before their trial. Its use is governed and limited by different rules, progressively established as multiple accusations of unlawful measure arose and going against presumption of innocence.

It is important to note that pre-trial custody is a practice that is found in a majority of national judicial and penitentiary systems across the world. Its importance can be crucial, even vital, because it can play a key role in the correct development of a trial, or in the protection of people related to it. Meanwhile, because it represents a massive infringement of fundamental universal rights, especially the one of presumption of innocence, it is absolutely necessary for its use to be strictly framed.

French citizens in remand represent today more than a quarter of the imprisoned population, in a system already overloaded, because it is overcrowded. Does this data highlight an exception? This article analyses the way in which the French judicial system relies on pre-trial custody as an ordinary tool, which can be translated into an abusive use of this device. It also presents problems tied to the Human Rights of defendants that surround its use, from the logistics to the health of those subjected to it, as well as related discriminations.

Outlines of the pre-trial custody system

Pre-trial custody, heir of preventive detention, involves imprisoning people who are yet to be judged, and occurs thus before trial. Its beginnings, in the 1970s, are tumultuous and eventually end up with a series of reforms. In fact, since its creation, the device is controversial for its defining of the term “exceptional”: rates of pre-trial custody were of 42.94% in 1980 and of 42.22% in 1990², colossal rates as it is impossible to define close to half of the incarcerated population as “exceptional”. Furthermore, placements’ duration seem to be extending, going from an average of 2.9 months in 1980 to 3.8 months in 1990³. Already it is clear that the pre-trial custody device would need an enormous framework if it would want to exist, and if it would want to respect the ordinary rights of all.

Nowadays, its conditions of use are governed by article 144 of the Code of Criminal Procedure, which designs its purpose as such: 

“Pre-trial detention may be ordered or prolonged if it is demonstrated, in regard of the outcome of precise elements and circumstances of the procedure, that is constituting the only way to attain to one or more of the following objectives and that these cannot be achieved in the event of placement under judicial supervision or house arrest with electronic surveillance: 

• Preserve evidence or material clues that are necessary to establish the truth;

• Prevent pressure being put on witnesses or victims and their families;

• Prevent fraudulent collusion between the person under investigation and his or her co-perpetrators or accomplices;

• Protect the defendant;

• Ensure that the person under investigation remains at the disposal of the courts;

• Put an end to the offence or prevent its recurrence;

• Put an end to the exceptional and persistent disturbance of public order caused by the seriousness of the offence, the circumstances in which it was committed or the extent of the harm it has caused. This disturbance may not be the result solely of media coverage of the case. However, this paragraph does not apply to criminal cases.”⁴

The key element in this definition is evidently the fact that pre-trial custody must be unavoidable when used, as a sort of last resort solution to ensure that a trial’s development happens under the best circumstances. Its use is further limited by the fact that it is not a device that can be used against any person being charged. Indeed, according to article 143-1 of the Code of Criminal Procedure, only individuals charged for a crime, or for a misdemeanour risking longer than three years of imprisonment, can be placed under pre-trial custody⁵. 

The placement under pre-trial custody can result from three distinct juridical status. Firstly, it is possible to be incarcerated as a defendant under an instruction’s frame, or the phase during which the examining magistrate investigates on the case and on the facts before being able to prosecute the said-defendant⁶. However, the defendants find themselves incarcerated in the case of being brought up for immediate trial. Immediate trial is defined as “a rapid procedure allowing the prosecutor to judge a person right after custody, the prosecutor may engage in this procedure if they estimate that the leads are sufficient and that the case may go to trial”⁷. In 2019, it was added to the list of appearance to delayed trial, used for cases where clues are considered sufficient, but some of the investigation’s results are missing. This procedure “allows to judge a person suspected of offence in a delay of two months from the moment they went into police custody”⁸. This last one seems to be able to have a non-negligible perverse effect on the rates of pre-trial custody, as within a year only, its use increased by 38%⁹. By creating yet another way to be placed under pre-trial custody, the French government shows its indifference towards the abusive use of this measure.

The placement under pre-trial custody is a regimen falling under article 5.3 of the European Convention of Human Rights, according to which “every person, arrested or detained, […] must be seen by a judge or magistrate within a reasonable timeframe, or freed during the procedure”¹⁰, refuting then any duration that would be judged unreasonable. How then can we understand the duration of pre-trial custodies in France? This duration, determined by the juge des libertés et de la détention (JLD, judge of freedoms and detention) in charge of the case upon a justified decision, varies according to the offence’s nature and complexity of necessary investigations, following the established norms by articles 145-1 and 145-2 from the Code of Criminal Procedure. If it concerns a misdemeanour, the regular duration of the pre-trial custody is four months, when the risked penalty is below or equal to five years. This duration can be extended exceptionally by four months, if the JLD considers it necessary for keeping the order as described in article 144¹¹. Concerning crimes, the norm seems to vary according to the different circumstances. Time spent in pre-trial custody is supposed to be generally one year, or two years when the penalty is below or equal to 20 years imprisonment. In the case of a crime committed outside of French territories or other specific types of crimes as described in article 145-2, pre-trial custody can be pushed back to 4 years. Just as in the case of misdemeanours, the JLD can take the decision to extend the duration of placement, for a time that cannot exceed six months¹².

It is important to underline that the time spent in pre-trial custody is deducted from the prison sentence if the defendant is found guilty and imprisoned following the trial. The mechanism of pre-trial custody presents mostly pitfalls in situations where the defendant is found innocent following the trial, notably through violating the presumption of innocence principle. The individual is then eligible for indemnities for any moral or physical prejudice that could have been caused by the pre-trial custody placement. This indemnity principle is, however, surrounded by multiple rules on eligibility, but also on the sums that can be compensated for, precising in particular that an individual put under trial to protect the person that committed the offence cannot receive reparations¹³. Therefore, 86% of reparation demands considered in 2022 were accepted by the Ministry of Justice¹⁴. Nonetheless, justice does not seem to be able to consider demands at the same speed as they arrive: against 547 demands dealt with in 2022¹⁵, 735 were still left by December 31, 2022. This can, without a doubt, point to a use of pre-trial custody by the French justice system that might be abusive. 

Therefore, if the right behind pre-trial custody establishes the exception as well as the rule, is it really relevant to consider its use as exceptional?

What use in reality?

From an exceptional to a general use

In 2019, in France, the detainees’ rate in pre-trial custody represented 29% of the total incarcerated population, within which 80% had their trial impending, and 20% had already been tried but were awaiting the examination of their appeal against their sentence. However, the average pre-trial custody rate amongst the Counsel of Europe member states rises to 25.9%¹⁶. Under such circumstances, France scores low, but it is still not last of the class: Switzerland’s penitentiary institutes’ pre-trial custody rate rises to 47.7%¹⁷, representing close to double the European average. Meanwhile, it appears interesting to underline that France’s situation does not seem to get better over the years. In 2011, it was already scoring poorer than average (a mean pre-trial custody rate of 27.7% in France compared to 24.7%¹⁸ in Europe), suggesting that the situation’s development regarding pre-trial custody’s mechanisms is at a standstill. This could also be justified by a French budget dedicated to Justice, when brought back per inhabitant, one of the weakest within the entire Council of Europe, while counting as one of the biggest budgets¹⁹.

The trend of seemingly decreasing pre-trial custody rates (28.9% on 2021/03/01, 27.7% on 2022/03/01, and 26.8% on 2023/03/01²⁰) could lead to confusions regarding France’s situation. It appears though clearly that these are stagnating statistics, caused by a percentage of incarcerated defendants that seems to once again rise up (27.7% on 2023/06/01²¹). Moreover, when looking at the trend over the past decade, it is truly possible to establish a picture of the level of use of pre-trial custody in France: the only real decrease in percentage of defendants, attributed to 2020, corresponds to the COVID-19 period, during which the Direction of the penitentiary administration (Direction de l’administration pénitentiaire (DAP)) was forced to lower overpopulation rates in their penitentiary institutions for public health reasons. In fact, within a year, the French justice system managed to drop incarcerated defendants’ rates by 15.3%²², going from 70,651 on January 1st, 2020, to 58,695 on January 1st, 2021²³. This is a proof that a decreased use of provisional custody is feasible. These efforts appear to have been rapidly abandoned as no further than February 1st, 2021, detained defendants’ numbers increased again by 18,659 individuals²⁴. This drop also corresponds to the introduction of the status of “condamné.e-prévenu.e” (convicted defendant)²⁵, which allowed for the re-categorisation of the incarcerated in France. In a prison system where overpopulation is the game master, it is not possible to justify pre-trial custody rates that are that high, nor is it that they appear to not decrease. Indeed, by their incarceration itself, defendants’ presence put the French penitentiary system under pressure, contributing to the aggravation of imprisonment conditions for the entirety of the inmate population.

Surveillance of the pre-trial custody’s system had been placed in 2000, following the presumption of innocence’s law, in the hands of the Pre-trial detention follow-up commission (Commission de suivi de la détention provisoire, CSDP), who had then the responsibility to analyse data related to its mechanisms, in France and abroad. Expert in this domain, this organisation denounced “the extraordinary and persistent inability, which defies comprehension, of the statistical apparatus to grasp the phenomenon of pre-trial detention”²⁶. They explain that, with the Ministry of Justice being the sole source of data and information regarding detention, a complete mystery surrounds the concrete progression of defendants put under the bar²⁷. It is particularly complicated to estimate the number of defendants incarcerated for short periods²⁸, especially in the case of immediate trial: there would be 30,000 individuals who were immediately trial in 2021, spending then only a few days in pre-trial custody²⁹. Their time spent in custody being so short, and DAP’s statistics showing the habitation of its establishments at precise points in time, their inclusion in censuses remains a question that is impossible to answer.

Why so much mist surrounds the pre-trial custody phenomenon? CSDP’s President, Bruno Aubusson, finds an explanation: “For some years now, pre-trial detention has no longer been a subject to which the Chancellery pays attention.”³⁰. The abandonment of the pre-trial custody issue appears to be confirmed after the CSDP was dissolved, following the law of December 7th, 2020. The government considers that the role of the General Supervisor in places of liberty deprivation (Contrôleur général des lieux de privation de liberté (CGLPL)) as sufficient to answers issues previously mandated to the CSDP’s jurisdiction, adding on that the Ministry of Justice could fulfil the Commission’s missions as well³¹. However, since then, no place of authority seems to have tackled this question and all the challenges facing pre-trial custodies³², additional proof regarding the indifference of the public administration. Its inaction is also translated through its actual actions, which transpires through its discourse as “on the one hand, the legislator likes to point out that pre-trial detention must be exceptional, but on the other hand, he is constantly increasing the possibilities for imposing it”³³. A notable example is the hardening of sentences in the case of cigarettes’ trafficking, from which illegal selling was sentenced to one-year imprisonment, but which since December 2022, can be penalised by three-years imprisonment, rendering this misdemeanour an offence that can involve pre-trial custody³⁴. By becoming a more penalising justice, the French government only spreads the field open to pre-trial custody, in a permanent and increasingly open manner, turning it into a common tool rather than an exceptional one.

A provisional use without an end?

Efforts to reduce pre-trial custody rates are facing challenges regarding a phenomenon counter to it: its duration’s prolongation. Defendants’ categorization within the prison population is majorly by individuals confronted with instructions, immediate trial being much harder to quantify as much shorter. These are then also the individuals that are confronted with prolonged waiting times. Thus, although Justice seems to be using pre-trial custody at a reduced frequency, “the fall in the number of people being remanded in custody is accompanied by a steady increase in the length of remand, which wipes out the effects of the fall in the number of remand cases”³⁵. Then, why do defendants facing instructions are subject to pre-trial custodies without end?

The French justice system is lagging behind with instruction time getting longer and longer. In fact, while in 2010 an instruction was taking 6.5 months on average for a misdemeanour and 24.3 months for a crime, for the same actions, in 2018 the instruction was taking 8 months and 30.5 months respectively³⁶. Behind that hides a real overload of the investigation system that benefits from less means than necessary to guarantee fast and efficient trials. According to the Ministry of Justice, some magistrates were traditionally supposed to manage 72 trial cases, and they point out this system’s overstimulation that leads them to having to work on over 130 cases at the same time³⁷. Even though cases involving defendants in pre-trial custody are placed as priorities, their handling can take up to two years. This overload can notably be attributed to the justice’s budget dedicated mostly to order preservation issues according to labour unions, but that also forgets to provide for the tools to investigate further after the arrest. Allocating more money to the better handling of trial cabinets could also palliate their understaffed issue, and by doing so, lower down pre-trial custody duration. Nonetheless, the guilt does not reside solely on trial cabinets. Within the frame of their investigations, it is frequent that magistrates require a psychiatric expertise to establish the capacity for discernment of the defendant. However, they report “a nationwide shortage of expert psychiatrists, with catastrophic delays”³⁸. In the face of such disregard towards the DAP health system’s situation, expertise’s waiting times continue to be expanded, going for longer than 12 months at a time, a state of affairs that freezes completely the trial process and therefore, the ending of pre-trial custody. 

Unfortunately, the lack of resources and budgeting does not impact trial cabinets only. The Regulatory and programming authority for judicial extractions (Autorité de régulation et de programmation des extractions judiciaire, ARPEJ), depending on the DAP and indirectly on the Ministry of Justice, also desperately suffers from a lack of resources, being notably understaffed. However, since 2019, it is within their scope and their responsibility to organise the detainees’ extraction that are summoned by the court. As such, though before 2019 this process had never really represented a challenge, extractions are now cancelled repeatedly, prolonging further pre-trial custody periods by a couple of months³⁹. To compensate for it, judges and magistrates are constrained to make use of “video-hearing”, a practice already in use in the 1990s, but largely popularised during the COVID-19 health crisis. It is important here to underline that it causes specific issues in the case of defence. The lawyer must make a decision regarding the place. They can choose to plead in front of the court in the middle of the magistrates, in which case it is frequent that communication between lawyers and their client becomes complicated and leads to lame answers. For this reason, a majority chooses to plead from the prison, next to the defendant, a delicate situation as well, as the lack of contact, and through that of understanding, with the magistrates can render the defence more difficult. It is also possible to establish the defence in duo, in a fashion to have a foot in each court and to maximise chances, but the corresponding fees are of course at the defendant’s own expenses, a weight that only few can afford⁴⁰.

The CSDP admits that “the increase in investigation times may have been the source of the lengthening of pre-trial detention, but it is the management of the hearing of cases, in particular for the assize courts, which has been the most sensitive issue since the beginning of 2010”⁴¹. If once again defendants’ files are treated first, the waiting times before the granting of an audience are on average between twelve and eighteen months⁴². Therefore, it is usual that the time spent in pre-trial custody doubles while waiting for a hearing. In response to this issue, the Ministry of Justice has introduced the establishment of the “departmental criminal courts’” (Cours criminelles départementales, CCD) through the law on justice programming from March 23rd, 2019 and generalising it through the law on trust in the judiciary institution from December 22nd, 2021. The CCDs have the possibility to judge people accused of committing crimes who face punishments equal or below 20 years of imprisonment without a public jury, but only in presence of five magistrates. The goal of this reform was to reduce audience times by having exclusively professionals participating and, through this mechanism, increasing hearings’ capacity. However, it was rapidly established that CCDs did not really allow more time: a case takes on average 2.23 days to be treated in a CCD, compared to 2.54 days in regular courts⁴³. Therefore, it is clear that CCDs do not allow to reduce rates and duration of pre-trial custodies by allowing faster trials, as the difference does not allow the introduction of significant changes. Additionally, a lack of resources can be felt once again. By requiring no less than five magistrates (which is, notwithstanding, two more than for a regular court hearing), it is difficult to organise an audience through CCDs. Moreover, the CCD process can cause in some courts the delaying of collegiate hearings, precisely because of a lack of resources. In these hearings, which purpose is to address correctional cases, some people awaiting their trial concerning a misdemeanour can see their time in pre-trial custody doubling, if not tripling⁴⁴. Then, despite their efforts through this reform, any positive effect appears to have been followed by a perverted effect that collectively nullified any step forward the reform attempted to introduce.

A Discriminatory Practice?

Worse than a frequent use, everyone is not equal when it comes to a potential placement into pre-trial custody, which is supposed to be determined based on the possible sentence length and likelihood of repeating the offence. This practice is fundamentally arbitrary, as such a decision results from a personal judgement and thus not estranged from possible risks encountered with the defendant. Moreover, provided motivations for a custody placement are frequently blurry, revealing in general the use of so-called “facade” criteria, rather than those dictated by law. According to some magistrates, “does it make sense to release someone who could face eight to ten years in prison? In the culture and in public opinion, they should stay in prison. This is not a criterion of Article 144, but it is something that is more or less ingrained in the minds of a certain number of people.”⁴⁵. In this sense, pre-trial custody appears to simply originate from public opinion, with decisions justified through shaky arguments, calling for the vague explanation of “ending up with the exceptional and persisting challenges posed to public order”. In fact, being part of the criteria list for a placement in pre-trial custody, it is subjected to very subjective assessments: “When the facts are very serious, is society prepared to accept that this person should be set free? In my opinion, it is for these particular situations that this ground exists.”⁴⁶. However, law texts mention this justification “cannot be the result of media coverage alone”⁴⁷. We then enter, for a lot of professionals, in the realm of “pre-sentence detention”⁴⁸, or a punishment preceding guiltiness recognition.

Additionally, it is important to note that the French justice system is itself proving to be discriminatory: in 2019, people implicated by French police forces were at 82% composed of French citizens and 18% of foreign nationalities, when the French population is constituted of 93% of people with French nationality and only 7% of foreign nationalities⁴⁹. Furthermore, these implicated individuals were at 58% made of people from African origins, when they only represent 43% of the total number of the foreign populations in France⁵⁰. This is evidently translated when facing justice, where one foreign person out of four is bailed under a firm sentence before a criminal court, against less than a French person out of six does⁵¹. With certainty, the phenomenon is similar when looking at pre-trial custody: an individual born abroad is five times more likely to be put under pre-trial custody⁵². More than racial discrimination, pre-trial custody is also faced higher by homeless people, for whom this placement is six times more likely⁵³.

Nonetheless, it does not necessarily mean that those discriminations are voluntary. Even though this does not render this practice any less biassed, placements in pre-trial custody can also result from an uncertainty from the defendant’s presence for their various summoning to the court⁵⁴. It is directed particularly to homeless people who do not necessarily receive the said court summoning, missing a place to receive mail. In this case, it would be more appropriate to arrange a placement in a housing and social reinsertion centre (Centre d’hébergement et de réinsertion sociale, CHRS), institutions managed by organisations or collective and public local authorities that have welcoming and housing people in precarious situations as a goal⁵⁵.

It remains important to underline that the call for pre-trial custody can also send a fundamentally political message. In fact, in France, pre-trial custody was used extensively at times of heavy opposition against state powers. It was notably the case during the yellow vests’ movement, a series of protests that occurred between 2018 and 2019 that attempted to contest fiscal policies led by the French government. Throughout France, people without any violence background or any recorded offence were placed in pre-trial custody with the aim of being used as an example: it is the case for example of Christophe Dettinger, former boxing champion, placed in pre-trial custody following a protest where he violently opposed police forces and citizens after having “seen anti-riot police members clubbing a young man and a woman on the floor”⁵⁶. His lawyer highlights though that Dettinger does not represent any characteristic that can justify pre-trial custody: married, employed and a father, he had no prior judicial record and did not have any motive for not showing up for his trial⁵⁷. It would have been possible to see here a coincidence only if the French justice system did not have a habit of using pre-trial custodies as a tool for states of emergency: similar practices could be observed in the occurrences of protests against retirement plan reforms in 2023, following which many people found themselves in pre-trial custody while awaiting immediate trial⁵⁸. More recently, under the context of popular riots in 2023 following Nahel’s murder, pre-trial custody was once again abused of, a single court placing no less than 28 people in pre-trial custody. This is without counting on the 95 people who were judged under immediate trial and who were most likely, prior to court appearance, placed under pre-trial custody⁵⁹. From this point of view, the French justice system appears to simply lock down in a stricter manner with the aim of sending a general warning message, instead of keeping prevention to the context of a specific court case.

What are the alternatives to pre-trial custody?

Pre-trial detention is used both to guarantee the safety of those involved in the case and to ensure that the trial and its constituent elements do not get distorted. Over the years, other mechanisms have been put in place to achieve the same objectives. Making its debut alongside pre-trial detention in the 1970s, this is notably the case of judicial supervision, introduced by the law of July 17th, 1970. Under this system, any investigating judge or liberty and custody judge (JLD) may restrict the personal freedoms of any person who has committed an offence punishable by a prison sentence, with the aim of preventing a repetition of said-offence. The restrictions imposed by placement under judicial supervision are numerous and are set out in article 138 of the Code of Criminal Procedure. They include restrictions on freedom of movement, submission to medical and security surveillance regimes (such as “clocking in” or having to report to a police station on a regular basis), a ban on contact with certain specific people or on engaging in certain activities, such as driving⁶⁰. Placement under judicial supervision may be governed by a bond, a system under which the person concerned must pay a certain sum of money, set by the judge. There are two reasons for this sum: to compensate the victim in the event of conviction (in the event of non-conviction, this sum would then be paid to the person found not guilty) and to guarantee compliance with the obligations imposed by the supervision order (the sum would be paid again if the person complied with said-obligations⁶¹). Thus, even if it is possible to recover the money paid out for the bond, judicial review remains, fundamentally, a discriminatory measure, because it is not possible for everyone to find the funds needed to pay the bond that can initiate this mechanism. Although the ruling handed down on September 5th, 1981, by the Criminal Division of the Court of Cassation dictates that “the amount and time limits for the payment of bail […] must be decided in the light of the defendant’s resources”⁶², the amounts are not always within the reach of the individuals concerned. On top of being an unreachable option for many, today it is impossible to say that judiciary supervision is a real alternative to pre-trial custody. In fact, in 1999, of all 61% of people awaiting trial, 21% were under judicial supervision against 40% under pre-trial custody. In 2009, 89% of defendants were in this situation, with 48% under judicial supervision and 41% under pre-trial detention⁶³. It seems that the proportion of surveilled increases, whilst pre-trial population rates are stagnating, therefore denouncing a stricter judiciary system, instead of a system seeking a bettering of its system. By stricter justice, we mean a justice system that has progressively increased the penalties for many offences, often making them eligible for pre-trial detention. To illustrate this, it is worth mentioning the fact that the government has increased the penalties for trafficking and selling illegal cigarettes from one year to three years⁶⁴, making the illegal sale of cigarettes an offence for which it is possible to be remanded in custody.

The introduction of the penitentiary law of November 24th, 2009, created electronically monitored house arrest (ARSE) as a twin measure to pre-trial detention. With the same objectives of preserving the ideal conditions for the project and the same element of suppression of freedoms, it still has the advantage of not entering prison before trial. Once again in the hands of investigating judges or JLDs, it can be deployed, with the consent of the person concerned, prior to trial or following an appeal after remand in custody. However, any refusal to comply with the rules governing ARSE will result in the person being remanded in custody. These rules mainly concern verification of compliance with the ARSE, which is generally carried out by telephone verification or verification through home visits⁶⁵. Nevertheless, the early days of the ARSE were turbulent. In 2011, only 130 people were under ARSE, compared with 186 in 2012 and 227 in 2013⁶⁶. The use of ARSE does not seem to be capable of being an alternative, as it is rarely used. Many laws aim at reducing the use of pre-trial detention in order to favour ARSE, such as the March 23rd, 2019 Law of programming for justice, or the December 22nd, 2021 Law for trusting the judicial institution. However, these bills do not seem to be sustainable⁶⁷. ARSE is indeed perceived as a possibility, but it is not perceived as the most fitting solution.

To tackle the high and stagnant rates of pre-trial detention, it seems pointless to offer other options, since History proves the saying that “the more places you open, the more people you lock up”. To achieve this, the French justice system should focus more on decriminalisation. By reducing the number of offences for which pre-trial detention is possible and increasing the potential length of imprisonment for which pre-trial detention is possible, the Ministry of Justice could make further progress.

The importance of an exceptional use

The issue of prison overcrowding⁶⁸ and its relationship to pre-trial detention 

In France, the number of people incarcerated within the penal system continues to increase (64 405 on March 1st 2021, 70 246 on March 1st 2022, and 72 351 on March 1st 2023⁶⁹). Additionally, prison overcrowding is one of the major problems and the most urgent for French remand prisoners, incarcerated uniquely within remand prisons, which are the establishments with most overcrowding, with an average of 141.3% of occupation on January 1st 2023⁷⁰. It is therefore clear that “pre-trial detention is, to a very large extent, at the root of today’s tragic prison overcrowding”⁷¹, as many legal professionals have pointed out. Certainly, 40% of remand prisoners are in prison⁷², which seems to confirm the fact that the non-exceptional use of pre-trial detention contributes to the overcrowding of the prison system. This is only confirmed by the fact that, without the 19,919 remand prisoners⁷³ currently held in France, the prison overcrowding threshold would not have been reached⁷⁴. As a result, remand prisoners have to live in some of the worst conditions in the entire French prison system. The environment resulting from prison overcrowding is no longer a secret: mattresses on the floor, bedbugs, rats, damaged sanitary equipment, and so on.

The situation faced by remand prisoners is made all the more difficult by the fact that overcrowding is not just a question of space, but also of resources. Indeed, the consequences of prison overcrowding mean that remand prisoners are unable to respond to the demands potentially made by the court and the judge concerned, demands which may include a potential promise of employment or evidence of rehabilitation. Staff report that overcrowding in remand prisons is such that probation officers are unable to spend time with remand prisoners, concentrating entirely on what they can do for them. The CGT Insertion-Probation has pointed out that many remand prisoners are forced to see a CPIP only once or twice a year⁷⁵. With few resources at their disposal and, in particular, no access to the Internet, it is simply not possible for anyone in detention to be able to respond to the sometimes demanding requests made by the judge. Organising the defence of the trial is therefore more complicated and more likely to fail.

All equal before the law?

In the absence of effective support from the CPIPs, remand prisoners find themselves in a delicate and uncertain situation when it comes to their prospects of release. They have to rely entirely on their lawyer, who does not work on site and often has to travel from institution to institution to see different clients. It therefore seems quite clear that a lawyer cannot devote himself or herself to the case of a single defendant, or even simply make it a priority. In such a context, some lawyers are content simply to send their accused clients a list of supporting documents that need to be put together in order to complete the next stage of the trial, whether that involves an application for release or an appeal. However, as remand prisoners receive no administrative support from the CPIPs, have no access to the internet, and may not be granted leave, it is impossible for them to compile the information needed to move their case forward. As a result, it is easy for defendants to see their remand period extended by six months⁷⁶, due to a lack of progress and regardless of their guilt, willingness or investment in the case.

It is equally important to stress that the fact that it is more difficult to prepare a defence is not the only factor affecting a defendant’s chances of being found innocent or, at the very least, acquitted, as this French magistrate points out: “Appearing free changes everything – well, a lot of things. You go before a court or an assize court in a better state of health, including mental health; you are more likely to have prepared your defence; you have the opportunity to give the court guarantees that you are no longer involved in crime, that you have found a job, etc.”⁷⁷. In this light, it is possible to understand the mental impact that being remanded in custody can have on a defendant’s mental health. The deployment of such a measure can give the impression of a biassed justice system, which does not give everyone the same opportunities because it does not allow everyone the same freedoms. This makes it all the more difficult to trust the judicial system as to the outcome of the trial.

What’s more, it has been determined that short prison sentences “have a major de-socialising effect and predispose to recidivism, which must be avoided”⁷⁸. Under this umbrella of “short sentences”, it is easy to include pre-trial detention, which is in itself part of the sentence, although the duration of this detention should not normally exceed four years and lasts on average around five months⁷⁹. This effect is, without doubt, confirmed by the Ministry of Justice itself, which highlights a lower recidivism rate following non-custodial sanctions⁸⁰. However, it is established that a pre-existing criminal record does increase the chances of being remanded in another case⁸¹. Previous imprisonment, such as pre-trial detention, also increases the chances of receiving a custodial sentence by a factor of eight⁸². Remand prisoners then enter a vicious circle, in which justice is no longer so blind and therefore impartial, and they no longer have the same criteria for judgement as the rest of the population. For reasons of presumption of innocence and effective justice, it might again be better to provide for placement in a CHRS, a measure already used for prisoners benefiting from a modified sentence. However, this measure is not available for remand prisoners, except for certain predefined categories (such as, for example, perpetrators of domestic violence), even though it could enable the people concerned to avoid the stigma, both before the courts and within their families, of being sent to prison.

Conclusion

The central issue of pre-trial custody is the affront it causes to the presumption of innocence principle, defended by article 11 of the Universal Declaration of Human Rights. It is nonetheless tricky not to have such measures implemented, as they are sometimes necessary to guarantee the smooth running of the trial and the safety of everyone involved. Nevertheless, with a usage rate slowly but surely approaching 30%, it is simply not possible to consider that it is used exceptionally by the French judiciary. This is only confirmed by the fact that there exist other possibilities which do not require custody in order to preserve the trial. However, while they are not perfect, using them more often could encourage lawmakers to better define their rules. Official justifications behind the use of pre-trial custody, even though defined by laws, are in reality rather blurry and often concealing systematic decisions based on discriminatory grounds. Nonetheless, the stakes of a regulated and exceptional use of pre-trial custody is absolutely key, as its excessive use poses major issues within the prison environment. Pre-trial detention contributes strongly to the almost daily increase of overcrowding in French prisons, contributing also to the worsening of detention conditions for all. It represents a major issue for the defendants and their opportunities to detach themselves from the prison environment, cutting their chances for a fair trial. GROW can only urge the French government to take measures to strengthen the idea that pre-trial detention should only be exceptional, but also to encourage practices in this direction. It mainly plays out in the political scene and in tribunals, arenas which are not affected by excessive use of pre-trial custody and which therefore fail to see the real urgency of the situation.

RECOMMENDATIONS

• GROW encourages the French government and its prison administration to study the persistent problem of prison overcrowding, including the issue of pre-trial detention, in order to draw up a well-thought-out and effective action plan;
• GROW recommends an increase in the budget allocated by the Ministry of Justice to investigating chambers across France, with the aim of ensuring that the justice system has more resources and is therefore less overburdened and more efficient, which is sure to effectively reduce the length of pre-trial detention;
• GROW promotes the further development of accommodation and social reintegration centres (CHRS), with a view to offering them the capacity to receive remand prisoners that the justice system has a duty to monitor, in a non-custodial setting;
• GROW recommends the introduction of a more restrictive framework for the use of pre-trial detention, in particular by defining a list of misdemeanours and crimes that may be subject to it, in view of the greater criminalisation of many offences;
• GROW also encourages changes to the criteria that must be met in order to qualify for pre-trial detention, in particular by raising the thresholds for sentences incurred so that they are higher, thereby limiting the offences that can be subject to it;
• GROW calls for a clarification of the criterion of “putting an end to the exceptional and persistent disturbance of public order” used to regulate the use of pre-trial detention, the use of which as a justification is relatively vague.

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Acknowledgments

We would like to thank Vannina Bozzi-Robadey, Marie Chapot, Jeanne Delhay, Emilie Delahais, Naomi Ouattara and Amina Touré for their proofreading work.

Translated by Gabriel Capitolo & Léa Grandemange

Picture: sniggie on VisualHunt.com

To quote the article:

CAPITOLO, G. & LEMOINE, J. (2024). Pre-trial custody in France: preventive or excessive? Generation for Rights Over the World. growthinktank.org. [online] March 2024.