In a bid to deal with the health crisis caused by the Covid-19 epidemic and the consequences for court activity, on 23 March 2020 Parliament passed ‘ Emergency Act 2020-290 of 23 March 2020 to deal with the Covid-19 epidemic “ granting the Government three months to take, by ordinance, any measures designed to ” limit the spread of the Covid-19 epidemic among persons involved in the conduct and progress of proceedings, the rules relating to the territorial jurisdiction and trial panels of the administrative and judicial courts, as well as the rules relating to procedural and trial deadlines, the publication and holding of hearings, the use of videoconferencing before these courts and the procedures for referring cases to the court and organising the adversarial process before the courts. ’

It was against this backdrop that, on 25 March 2020, the President of the French Republic signed ‘ Order no. 2020-303 of 25 March 2020 adapting the rules of criminal procedure on the basis of emergency law no. 2020-290 of 23 March 2020 to deal with the covid-19 epidemic ’ in the Council of Ministers.

It should be noted that this order reflects the government’s desire to adapt the rules of criminal procedure to the difficulties experienced by the courts, without showing any concern for preserving the spirit and letter of the fundamental principles.

Note the reduction in the rights granted to persons in police custody and the significant increase in the length of pre-trial detention.

However, the aim is to restore balance by easing the conditions governing the release of persons at the end of their sentence.

However, a close look at these measures reveals that they give more powers to magistrates, in particular the public prosecutor, who is given the option of slowing down a release procedure simply by issuing a negative opinion.

Thus,

On police custody. The thirty-minute confidential interview that detainees are allowed with their lawyer and the lawyer’s assistance during hearings may now take place by electronic means, including telephone, under conditions that guarantee the confidentiality of the exchanges.

Extensions of police custody for minors aged between sixteen and eighteen, as well as extensions of police custody to seventy-two and ninety-six hours, may take place without the person being brought before the competent magistrate.

These measures lead to a weakening of the control over police custody and the assistance of the detainee’s lawyer.

On the use of electronic means of communication. In view of the material difficulties caused by the closure of many post offices and the slowdown in postal services, the provisions relating to the sending of procedural documents by registered letter with acknowledgement of receipt have been relaxed by authorising lawyers to use electronic means of communication to send their applications, requests and pleadings to the courts concerned.

This is a welcome measure, as it makes it easier for lawyers to work from home, enabling them to continue their defence work while respecting the confinement measures.

Provisions applicable in the event of pre-trial detention. This Order is marked by a substantial lengthening of the time taken to remand prisoners in custody and the processing of applications for release. Article 16 provides that, in criminal cases, the maximum legal periods of pre-trial detention or house arrest under electronic surveillance ‘ shall be automatically extended by two months where the prison sentence incurred is less than or equal to five years and by three months in other cases’. In criminal cases and in correctional cases to be tried on appeal, the period is extended to six months. These longer periods do not preclude release ordered ex officio by the judges, or at the request of the public prosecutor or the defendant himself.

Article 17 bears further witness to this lengthening of time limits, since all those applicable to immediate appearances are lengthened in such a way as to deprive the notion of an appearance of its ‘ immediate ’ character:

« 1° The period of three working days provided for in the third paragraph of article 396 of the Code of Criminal Procedure is extended to six days;

2° The maximum period of six weeks provided for by the first paragraph of article 397-1 of the Code of Criminal Procedure and the maximum period of four months provided for by the second paragraph of the same article are increased to ten weeks and six months respectively;

3° The two-month period provided for by the third paragraph of article 397-3 of the Code of Criminal Procedure and the four-month period provided for by the last paragraph of the same article are increased to four and six months respectively;

4° The four-month period provided for in the second paragraph of Article 397-4 of the Code of Criminal Procedure is extended to six months.

In the event of a delayed appearance, the two-month period provided for in the third paragraph of Article 397-1-1 of the Code of Criminal Procedure is extended to four months.

Lastly, article 18 of the Ordinance increases by one month the time limit for hearing appeals against an order refusing release, or on any other appeal relating to pre-trial detention and house arrest with electronic surveillance or judicial supervision, from fifteen days to forty-five days.

There is good reason to deplore the lengthening of these periods of pre-trial detention which, according to the spirit of criminal procedure, must be strictly controlled and must not allow any external circumstance to affect the deprivation of liberty imposed on any accused person.

On the exercise of the rights of defence before the liberty and custody judge. In addition to the longer pre-trial detention periods, the work of the defence is made more difficult by the possibility for the accused’s lawyer to plead orally for the release of his client before the liberty and custody judge, provided that the court has audiovisual telecommunication facilities. Failing this, the decisions of the liberty and custody judge to extend pre-trial detention are based on the written submissions of the public prosecutor and the written observations of the detainee and his or her lawyer.

As lawyers will not be able to check the technical facilities available in the courts, they will have no choice but to submit to the judges’ decision on the conditions and procedures for exercising the rights of the defence. The Ordinance does, however, remind judges of their role: ‘ the judge organises and conducts the proceedings, ensuring that the rights of the defence are respected and that all parties are heard ’.

Sentence reductions and other release arrangements. Sentence reductions, escorted leave and temporary leave may be ordered without consulting the Sentence Enforcement Commission, provided that the public prosecutor gives a favourable opinion on the measure. The public prosecutor may grant a release on parole under the same conditions, provided that the prisoner has accommodation and can be placed on parole.

In the absence of a favourable opinion from the public prosecutor, the judge may rule on the basis of the written opinions of the members of the sentence enforcement committee, obtained by any means.

The sentence enforcement judge may also grant an additional reduction in the sentence of up to two months for convicts serving one or more time-barring sentences during the state of health emergency. However, these provisions do not apply to persons sentenced and imprisoned for crimes, acts of terrorism or offences committed within the family.

It can therefore be seen that the public prosecutor may, by issuing an unfavourable opinion, slow down the normal course of proceedings and require the sentence enforcement judge to obtain written opinions from the members of the sentence enforcement commission.

Suspension of sentence. The Sentence Enforcement Judge may, after consultation with the Public Prosecutor and without an adversarial hearing, suspend the sentence of a convicted offender who provides proof of accommodation. Under the same conditions, he may, based on a medical certificate drawn up by the doctor in charge of the health facility where the detainee is being cared for, suspend the sentence for the duration of the convicted person’s hospitalization.

House arrest. House arrest with a ban on leaving the prison may be granted by decision of the public prosecutor, acting on a proposal from the director of the prison integration and probation service, to any prisoner sentenced to a term of imprisonment of five years or less, who still has to serve a term of imprisonment of two months or less.

However, these provisions do not apply to persons sentenced and imprisoned for crimes, acts of terrorism, offences against the person of a minor under the age of fifteen, or offences committed within a marital relationship.