Rights of the person under investigation

The person under investigation in criminal proceedings has the right to defend themselves, a right which includes the possibility to request the nullity of procedural acts that infringe their interests, in particular their right to private life, as illustrated by two recent decisions handed down on the same day by the Criminal Chamber of the Court of Cassation.

The legal status of the person under investigation

The first decision (Crim., 18 June 2019, appeal no. 19-80105) concerned a preliminary investigation opened for drug-trafficking offences, during which seizures of narcotics and equipment used to produce drugs had been carried out in a public park, in the common areas of a building and in premises used as a packaging workshop. Requisitions had then been addressed by investigators to the forensic police laboratory for the analysis of the narcotics and the search for fingerprints and genetic prints, which led to the identification of an individual. Placed under investigation, this individual filed a request for nullity of the procedural acts on account of the absence of authorisation from the public prosecutor, although this is required by Article 77-1 of the Code of Criminal Procedure. The request was rejected by the investigating chamber on the ground that such a request could only be made by a party holding a right over the property examined or showing that the investigation had infringed its private life. The Criminal Chamber, as expected, quashed the decision, rejecting that restrictive approach and considering broadly that any person with an interest may make such a request: "in ruling thus, when it had found that the requisitions in question had been issued without justification of an authorisation from the public prosecutor and that the absence of such authorisation may be invoked by any party with an interest, the investigating chamber misread the meaning and scope of the aforementioned text".

Effective rights during the investigation phase

The second decision (Crim., 18 June 2019, appeal no. 18-86241) concerned surveillance acts carried out under a rogatory commission issued by an investigating judge in drug-trafficking facts. These acts had first taken the form of video surveillance on the public highway near the home of a suspected individual. The latter, placed under investigation, requested the nullity of the acts resulting from the use of this device, considered unlawful. The investigating chamber rejected the ground, holding that a device used on the public highway escapes the formalism of Article 706-96-1 of the Code of Criminal Procedure and does not constitute an infringement of private life. While the Criminal Chamber did not share that last point, it nonetheless confirmed the investigating chamber's approach, holding that the process used, based on Article 81 of the Code of Criminal Procedure, constitutes a limited and proportionate interference with private life given the aim pursued.

Preserving one's rights: the key role of the lawyer

The surveillance acts also took the form of geolocation and image-capture measures put in place in the underground car park of a private building, outside the hours provided for at Article 59 of the Code of Criminal Procedure. The applicant also requested the nullity of those acts on account of the absence of authorisation from the judge of freedoms and detention. The Criminal Chamber, faithful to its rigorous reading of procedural requirements for intrusive measures, upheld the nullity on this point, recalling that any infringement of private life must rest on a precise, proportionate legal basis adapted to the measure used. This illustrates the central role of the criminal defence lawyer in identifying procedural breaches and using nullity to protect the defendant's fundamental rights.