Comparative criminal procedure

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Erasmus Student
Charlotte Launoy
We call "police custody" the period of a few hours or a few days during which a person suspected of having committed a malpractice is held in a premises of police having been arrested without warrant for arrest. As a general rule, the police can place in police custody the persons caught in “flagrantedelicto” as well as those whom it suspects of having committed - even to be about to commit - a malpractice when this measure seems necessary to facilitate the good progress of the penal investigation or to prevent the suspects from committing other malpractices.
The legislative measures concerning the police custody evolved a lot during the last years, but the fundamental principles of the 1679law on the habeas corpus continue to apply, in particular the right which every person has to be informed about the motives for its arrest.

Most of the european texts subordinate the placement in police custody to the existence of a malpractice of a certain gravity. In Germany, Belgium, Denmark, Spain and Italy the rules of the criminal procedure subordinate in a more or less explicit way theplacement in police custody to the existence of a malpractice of a certain gravity. In Belgium, in Spain and in Italy, the code of criminal procedure defines explicitly the malpractices which can entail an placement in custody.
At the opposite, in England and in Wales, since January 1st, 2006, all the malpractices, whatever is their gravity, may justify an placement in police custody.
InBelgium, in Germany, in Spain and in Italy, the duration of the police custody, fixed by constitutional way, cannot be prolonged. In Belgium, according to the constitution, the duration of the police custody is limited at 24 hours. In Germany, the fundamental law prevents the police from detaining somebody " of its own authority " beyond the next day of the arrest, so that the total duration of thepolice custody cannot overtake 48 hours. In Spain, the constitution fixes at 72 hours the maximal duration of the police custody and in Italy, the duration cannot overtake 96 hours.
In England and in Wales, the first prolongation of the police custody is decided by the police: the most graded officer of the commissionership can authorize a continuation of 12 hours if the considered malpractice isenough grave to be judged by professional judges on bill of indictment. Then, the police custody can be prolonged only by a judge, if necessary repeatedly, but without that the total duration of the measure can overtake 96 hours.
In England and in Wales the regime of the police custody is defined by the 1984 law on the police and the proof in penal case. However, when the arrest is connected to thefight against terrorism, it is the particular rules of the law of 2000 to the terrorism that applies.

In all the countries except in Belgium, people placed in police custody can benefit from the assistance of a lawyer as soon as they are deprived of freedom. The lawyer can generally attend the interrogations. It is the case in each of these five countries except in Germany, where the German codeof criminal plans nevertheless an interruption of the interrogation if the accused requires an interview with his lawyer.
The problem about the lawyer's presence during the custody is actually at the core of the debate between several countries, such as France and Turkey and the European Court of Human Rights (ECHR).

The analysis of the foreign measures brings to light three particularitiesof the French legislation: the possibility of placing a person in police custody for a minor offense, the absence of constitutional measures on the police custody and the limited intervention of the lawyer during the police custody. The police custody in the French constitutes an exception in Europe. A study of legislation compared by the Senate in six European countries (Germany, England,...