Criminal procedure: the need to justify the respondent's absence during searches

In the course of a preliminary investigation into drug trafficking, an individual was referred to a Magistrates' Court and then convicted on appeal of aggravated violence, drug offences, possession of goods dangerous to health without justification, repeat offences, refusal to comply and hit-and-run.

In addition to the seven-year prison sentence handed down by the MONPTELLIER Court of Appeal, the individual was sentenced to a customs fine of €616,860.

It is true that during the search of a box made available to the accused, the investigators found large quantities of narcotics.

However, the legality of this search was challenged before the Investigating Chamber of the MONPTELLIER Court of Appeal, given that it had been authorised by the public prosecutor's office in the absence of the defendant, in view of the "risk of escape that the behaviour" of the individual could "legitimately give rise to fears"; it should be noted that the search was carried out in the presence of two witnesses.

The Examining Magistrate's Chamber dismissed the application for a declaration of nullity on the grounds that the search authorisation given by the Public Prosecutor "necessarily falls within the scope of the provisions of article 706-94 of the Code of Procedure".

It considered that the nullity raised was perfectly well founded, that the use of a search in the absence of the accused was irregular because it was not justified and, drawing the consequences of its position, annulled the conviction for drug trafficking and possession of dangerous goods, the sentences handed down in this respect and the customs fine.

In its ruling, the Criminal Division began by pointing out that, while the provisions of article 706-94 of the Code of Criminal Procedure do provide for a search to be carried out in the absence of the person concerned, this is first and foremost a derogation from the principle set out in article 57 of the Code, which states that:

- Subject to articles 56-1 to 56-5 and to respect for professional secrecy and the rights of the defence mentioned in article 56, the operations prescribed by the said article are carried out in the presence of the person whose home the search is taking place.

If this is not possible, the judicial police officer will be obliged to invite the person to appoint a representative of his or her choice; failing this, the judicial police officer will choose two witnesses requested for this purpose by him or her, other than persons under his or her administrative authority".

In 2004, with Act no. 2004-204 of 9 March 2004 adapting the justice system to developments in crime, the legislature introduced the possibility of organising searches in the absence of the owner of the premises when the latter is in police custody or in detention, for proceedings initiated for a certain category of offence, including offences committed by organised gangs and those relating to drug trafficking.

Article 706-94 of the Code of Criminal Procedure states that:
- When, in the course of a flagrante delicto investigation or an investigation into one of the offences falling within the scope of Article 706-73, the person whose home is to be searched is in police custody or is being held in another place and it seems necessary to avoid transporting him there due to the serious risk of either disturbing the peace or escaping, or of evidence disappearing during the time required for transport, the search may be carried out, with the prior agreement of the public prosecutor or investigating judge, in the presence of two witnesses required under the conditions set out in the second paragraph of Article 706-73, or of evidence disappearing during the time required for transport, the search may be carried out, with the prior agreement of the public prosecutor or investigating judge, in the presence of two witnesses required under the conditions set out in the second paragraph of article 57, or of a representative designated by the person whose home is in question".

However, the use of this article is limited solely to situations in which the transport of the person in question must be avoided because of the "serious risk" of disturbing the peace, escape or disappearance of evidence.

In other words, reasons must be given for using this option, either by the magistrate authorising it or by the investigator requesting it, with a reference to the "circumstances likely to justify the use of these exceptional arrangements".

In this case, the Cour de Cassation found that the public prosecutor had merely authorised the search in the absence of the individual on the sole grounds that the individual's behaviour could legitimately give rise to fears of escape.

The Investigating Chamber merely noted that the reason put forward by the public prosecutor, i.e. the risk of escape, was provided for by the provisions of article 706-94 of the Code of Criminal Procedure, and considered that the request for nullity should be rejected.

This is where the problem lies for the Criminal Division, which ultimately considers that the decision is not factually reasoned, that the existence of a serious risk is not explained and that the use of this derogatory tool was not justified.

It is true that the text does not make the use of the powers provided for in article 706-94 of the Code of Procedure subject to the prior preparation of a written statement of reasons; however, in a 2004 circular, the Minister of Justice pointed out that:

- Although the law does not require the agreement given by the magistrate to be reasoned, it must be drawn up in writing, with reference to the aforementioned texts and the elements that make their application essential. The agreement will be added to the proceedings by the investigators. This procedure may only be used when it does not appear possible, in view of the aforementioned factors, to proceed differently".

The ruling is interesting in that it firstly reiterates the highly exceptional nature of the possibility provided for in Article 706-94 of the Code of Procedure; a reading of the 2004 circular shows that this was also the intention of the executive.

Consequently, it seems necessary to be able to verify the reasons why recourse to this derogation was authorised.

More generally, the position of the Criminal Division, which has ruled for the first time here on the question of whether searches in the absence of the accused owner must be justified, is in line with a classic trend that it has had occasion to reiterate previously, particularly in relation to night-time searches:

- " 7. It follows from these texts that the authorisation given by the investigating judge to judicial police officers to conduct a search of a dwelling place outside the legal hours must include the grounds for this invasion of privacy in a written, reasoned order, failing which no real and effective control of the measure can take place, which necessarily causes harm to the person concerned (Crim., 8 July 2015, appeal no. 15-81.731, Bull. crim. 2015, no. 174).

8. It follows that a verbal authorisation given by this magistrate is null and void, even if it is followed, after the act has been carried out, by the formalisation of a written and reasoned order (Crim., 13 September 2022, Appeal no. 21-87.452, published in the Bulletin)".

The existence of exceptional procedures, designed to respond more effectively to organised crime, does not mean that there are no procedural rules to protect the rights of the defence.

It is worth pointing this out.