Everything you say can be used against you in court

July 30, the Constitutional Council said unconstitutional the regime of common right of custody. Is this decision as revolutionary as that of the Supreme Court of the United States in 1963, with the decision in Miranda/Arizona (from the name of a criminal of Arizona which the procedure had been cancelled because its rights does him had not been notified at the police stage) He had not told: "You have the right to remain silent." Everything you say can be used against you in court. You have the right to speak with a lawyer and to have a lawyer present during your questioning. If you do not have the means to have a lawyer, he you in will be procured at the expense of the Government. "Since then, the marshals keep in their pocket a reminder on the back of which the statement of each law is restated and followed by the question:" did you understand ". "They know by heart, as all viewers of American soap operas.

In recommending to Parliament to create "effective" assistance of a lawyer during this period of police custody and in requiring the notification of the right to remain silent, the Constitutional Council is to lead to a "Miranda warnings" in French We are not yet there. But his decision opens the door to a profound transformation of custody, except in cases of terrorism and organized crime.

Ingenious messing

One can imagine because the French decision backs to the jurisprudence of the European Court of human rights, again on October 13, 2009, reminds about the guard view: "...". "the right of any accused to be effectively defended by a counsel, required office clerks, are among the fundamental elements of fair trial".

The question is how, before the date 1 July 2011 deadline, Cleaver set by the Council, any criminal judicial culture based on inverse principles dating back to the orders of Villers-Cotterêts of 1539, will switch or on the contrary to braking with four horseshoes. Waive this solitary conversation: the suspect is experienced by number of police officers as a handicap in the search for the truth. One remembers that in 2000, the introduction - brief - of the notification of the right to silence had perhaps more disturbed the police that the arrival of counsel half an hour at the start of custody. The measure had been quickly removed, but the Constitutional Council did reappear, coupled with an effective presence of the lawyer.

Battles and resistances will obviously crystallize on the interpretation of the expression "effective assistance" of a lawyer. You can expect all sorts of ingenious messing through the exceptions to the rule. For example, with the circumvention of the new rights by the creation of a "true-false custody" volunteer. And even giving a discretionary power to the Prosecutor's Office to allow or deny the disclosure to counsel or even prohibit their presence to the questioning. This is the path chosen in any new project of the Chancery. It will still play on the costs and the lack of adequate organization of lawyers and professional structures "dedicated" to the new job... to water down or back up the implementation of the new. All the excuses, all the arguments will be good for "miter" reform. It is already gone!

There is no doubt that the next text of Act will be again referred to the Constitutional Council, which would have been unnecessary had he been more explicit in its decision of 30 July. But we understand his caution with respect to the legislature. Nevertheless, it is him, the Council, which will have the last word and say whether or not the text of the passed reform is acceptable. This is the new constitutional reality as important as the decision on custody itself. The evidence will be may so given that the priority issue of constitutionality (QPC) is a major means to extricate archaisms candied of French society.