Police Custody in Economic and Financial Cases: The 12 Reflexes to Adopt

An executive’s early-morning summons, investigators arriving unannounced at company headquarters, notification of a placement in police custody (garde à vue): confronting economic and financial criminal procedure is a shock whose handling in the first hours often determines the outcome of the case. Here are the twelve reflexes that every executive, manager or public decision-maker should know.

The legal and procedural framework

Reflex 1Understanding the legal framework of police custody

Police custody is governed by Articles 62-2 et seq. of the Code of Criminal Procedure. Its initial duration is 24 hours, extendable by a further 24 hours on the authorisation of the public prosecutor (procureur de la République) or the liberty and custody judge (juge des libertés et de la détention). In organised crime matters — which notably include fraud committed by an organised group or money laundering committed by an organised group — the duration may be extended up to 96 hours on the basis of Article 706-88 of the Code of Criminal Procedure. Precise knowledge of the legal classification adopted by investigators determines the applicable regime and the scope for defence.

Reflex 2Requesting a lawyer immediately

The right to the assistance of a lawyer applies from the very start of the measure. The person in police custody may have a lawyer of their choice appointed or request a court-appointed lawyer. It is strongly recommended to choose counsel with dual expertise in criminal procedure and business law, particularly where the case involves tax, accounting or stock-market aspects. The lawyer has the right to attend all interviews (auditions) and confrontations, and to consult confidentially with their client before the first interview.

Reflex 3Not answering questions before the lawyer arrives

Article 63-4-2 of the Code of Criminal Procedure provides for a two-hour waiting period, running from the notice given to the lawyer, during which the interview may be postponed. This period allows for preparation of the defence and the preliminary consultation. Save in duly justified cases of urgency, it is rarely advisable to answer substantive questions before this preliminary consultation.

The rights of the person in police custody

Reflex 4Requesting a medical examination

The right to a medical examination, provided for in Article 63-3 of the Code of Criminal Procedure, makes it possible to document the state of health of the person in custody and whether the measure is compatible with it. This examination is available as of right at the request of the person concerned. It takes on particular importance in cases of pre-existing frailty or psychological strain linked to the economic context of the case.

Reflex 5Informing a relative and the employer

Article 63-2 of the Code of Criminal Procedure grants the right to have a relative and the employer notified by telephone. For an executive, this option makes it possible to organise business continuity, to involve the company’s legal department and to inform the board of directors or the shareholders. In certain cases, this notification may be deferred if it is liable to prejudice the investigation, subject to a reasoned authorisation from the public prosecutor.

Reflex 6Knowing the grounds and the legal classification

The judicial police officer (officier de police judiciaire) must notify the person in police custody of the legal classification of the acts they are suspected of having committed, as well as the grounds justifying their placement in police custody (Article 63-1 of the Code of Criminal Procedure). This information is essential for preparing the defence: it determines the strategy for the interview and makes it possible to identify the scope of the investigation.

Conducting the interviews

Reflex 7Controlling one’s statements

Article 63-1 of the Code of Criminal Procedure gives the person in police custody the right to make statements, to answer questions, or to remain silent. The exercise of the right to remain silent cannot be interpreted unfavourably against the person concerned. Where the person chooses to speak, their statements are best kept factual, measured and free of extrapolation. Each record of interview (procès-verbal) must be read through in full before signature, and any inaccuracy or approximation must be corrected.

Reflex 8Anticipating a simultaneous search

In economic and financial matters, a search (perquisition) of the home, the registered office or business premises is very often carried out at the same time as the interview. The applicable rules are set out in Articles 56 et seq. of the Code of Criminal Procedure. The presence of the occupant, compliance with the rules governing seizure, and the adversarial inventory of items taken are all points whose regularity determines the subsequent admissibility of the items seized.

The final phase and its aftermath

Reflex 9Managing the risk of an extension

The extension (prolongation) of police custody requires a reasoned decision from the public prosecutor or, depending on the case, the liberty and custody judge. The person in police custody may put forward submissions seeking to challenge the usefulness of this extension. The defence is well advised to prepare these submissions, drawing on the actual content of the interviews already conducted and on whether the measure is proportionate in light of the progress of the investigation.

Reflex 10Preparing for the end of police custody

Several scenarios are conceivable at the end of the measure: unconditional release, release with a summons to appear before the court, being brought before the public prosecutor (défèrement), or being brought before the examining magistrate (juge d’instruction) with a view to being placed under formal investigation (mise en examen). Each scenario calls for distinct preparation: the possibility of being placed under formal investigation and of a debate on pre-trial detention (détention provisoire) requires, from the police custody stage onwards, anticipating the elements likely to be submitted to the liberty and custody judge.

Reflex 11Identifying procedural defects

The conduct of police custody is an area particularly conducive to procedural challenges. Statement of rights (notification des droits), the time taken for the lawyer to intervene, the duration of interviews, compliance with rest periods, and the reasoning given for extensions: each of these acts may subsequently be challenged by way of a nullity application (requête en nullité). Notes taken during police custody, where possible, and a careful reading of the records of interview constitute the defence’s first materials.

Reflex 12Protecting image and communication

High-profile economic police custody cases call for a carefully managed relationship between the criminal defence and the management of communications, without any confusion of roles. Internal communication (staff, partners, shareholders) and external communication (press, the market if the company is listed) are best planned in advance, in strict compliance with the confidentiality of the judicial investigation (secret de l’instruction) and the applicable rules of professional ethics.

Frequently asked questions