The Council of State had found nothing wrong, but the Court of cassation has flown the device in bursts. For a month and a half, from late march to mid-may, during the duration of the confinement related to the outbreak of coronavirus, the chancellor has imposed, by way of an order, the automatic extension period – without a judge or debate – of the detention on remand. In practical terms, where a person sentenced has been able, at the end of a sentence, come out a few months earlier from prison for health reasons, the ministry of Justice has extended the temporary detention of persons not yet judged, that is to say, presumed innocent.

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Objective : to alleviate the workload of the judges, being hit hard by the epidemic. But for weeks, the judges did not agree on the interpretation that should be given to the texts made in the emergency. Some have decided to hold debates, as they usually do ; others have followed the chancellery. Many voices, especially among lawyers, but also among a minority of judges, protested against what they referred to as a net decline in the rights of the defence and of flagrant violation of individual liberties.

A net decline in the rights of the defence ?

The Court of cassation has eventually decide Tuesday 26 may 2020. In reality, her decision was hardly a surprise. At the end of April, notes white addressed to the chancellery and written by senior members of the judiciary alarmaient already on the fact that the automatic extension of detention on remand could not be in line with the ECHR (european Court of human rights). Without surprise, the two priority issues of constitutionality (QPC) have been transmitted to the constitutional Council.

The fate of those held being in the game, the Court of cassation also considered that she did not have to stay the proceedings pending the decision of the constitutional Council. And the judges decide that any prisoner whose detention on remand has been prolonged automatically be released if its status was not reviewed “promptly” by a judicial judge. A way to “neutralize” the device taken in the emergency custody of the Seals, Nicole Belloubet, according to professor of public law, Nicolas Hervieux.

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This “short time” will vary according to whether the detained person is suspected of a crime (this time will then be of a month) or a crime (three months). Let’s take the case where the automatic extension of a person suspected of murder took place on 2 may. The justice will have until August 2 to review the merits of the detention. If it is not pronounced in time, the prisoner must be released immediately.


To prevent abuse, the Court of cassation has placed many safeguards. By providing for a period of three months for the most serious offences (crimes), it leaves the time for the magistrates to arrange for the reconvening of the inmate, before being forced if any of the release. All the prisoners who have seen automatic extension of their detention on remand and who have subsequently filed an application for release (DML) to which the judge replied in the negative, are not concerned. Those will remain in prison.

In the clear, only could get the persons placed in pretrial detention for a misdemeanour, the holding of which was extended as of right there is more than one month and who have not filed any application for release (DML). The chancery was not in a capacity at the time of the publication of this article, to calculate the number of prisoners concerned. This could affect dozens of prisoners. Y aura-t-he in the lot of the persons accused of apology of terrorism, domestic violence or sexual assault ? The hypothesis, which would become the nightmare of Nicole Belloubet, cannot be ruled out.

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Will also be held in which the judges have failed to control the situation within the time allowed by the Court of cassation. Errors of procedure are, therefore, quite possible, but heavily restricted. Was it the Court of cassation to save the furniture in this way ? We can doubt it. “The Court of cassation, added to the arbitrary-to-arbitrary “, plague Me Thomas Bidnic.

One thing is certain : judges criminal lawyers, who have worked hard during the period of the confinement, will find themselves with a new overload of work. Hundreds of prisoners are going to have to be convened again.

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