Cédric Jubillar’s release requests: a lawyer explains how this procedure works

What is the delay between each request? How long can this so-called “provisional” detention last? Who decides on his release or his retention in prison? We asked the criminal lawyer David Mendel, of the Montpellier bar, to clarify the outlines of this procedure.

Justice must look at this Tuesday, January 11, a new request for release filed by the lawyers of Cédric Jubillar, main suspect in the case of the disappearance of his companion Delphine in Cagnac-les-Mines, in the Tarn. The father, in prison since last June, continues to cry out his innocence. This leads him to multiply the procedures for requesting release.

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What is the delay between each request? How long can this so-called “provisional” detention last? Who decides on his release or his retention in prison? We asked the criminal lawyer David Mendel, of the Montpellier bar, to clarify the outlines of this procedure.

David Mendel, criminal lawyer at the Montpellier bar
Free Lunch – François Barrere

On what principle is a request for release in a criminal case based?

In criminal proceedings, any indicted person is presumed innocent and remains free (article 137 paragraph 1 of the Code of Criminal Procedure). this text is immediately corrected by a paragraph 2 and a paragraph 3 which specify that the person can be placed in provisional detention “when the obligations of a judicial control or of a placement under electronic surveillance” do not allow to meet the needs of instruction.

Freedom being the principle, the decisions of placement in provisional detention see their effects limited in time.

How does the procedure work in the event of a request for release?

We must distinguish two cases. At any time, (article 148 of the Code of Criminal Procedure) during his pre-trial detention, the person can make a request for release, which is submitted in writing, either directly by the detainee or through his counsel.

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Within 5 days, the examining magistrate must rule. If he refuses, he must send the request to the Judge of Freedoms and Detention with a reasoned opinion. This liberty and detention judge then rules within 3 days.

Its order is notified to the parties who can appeal within 10 days. This appeal will then fall within the competence of the Investigation Chamber at the competent Court of Appeal. In the event of release, the prosecution may, in an emergency, by a “summary detention” request the suspension of the effects of the release while waiting for the Chamber of instruction to rule.

For Cédric Jubilar, it seems that we are coming to the end of the first one-year deposition mandate. If there is renewal, it will be for six months

Is there a minimum time between each release request?

There can be no new request until the previous one has been fully discussed.

Is there a regular and automatic review of continued pre-trial detention?

Freedom being the principle, the decisions of placement in provisional detention see their effects limited in time: 4 months renewable in matters of offenses. For a crime, it is 1 year for the initial placement then renewals every 6 months.

For Cédric Jubilar, when we reach the end of the first one-year deposition mandate, if there is renewal, it will be for six months. For renewals, there is a hearing in public theory before the Judge of Freedoms.

Is there a maximum length of pre-trial detention?

In matters of misdemeanor, the maximum duration is 1 year. However, this period may be extended to 2 years in certain cases (drug trafficking, procuring, organized gang, criminal associations, or a penalty equal to 10 years).

In criminal matters, if the penalty incurred is less than 20 years, the maximum duration will be two years. Beyond 20 years incurred, it will be 3 years. And 4 years for terrorism, pimping, and drugs …

Finally, after the judge seized the Assize Court by order of indictment, the indicted remains detained pending trial, for a maximum additional year, still extendable by the investigating chamber by reasoned judgment. .

This is where the concept of reasonable time comes into play, defined by article 144-1 of the CCP and article 5.3 of the European Convention for the Protection of Human Rights. We have sometimes seen provisional detentions of 5 years.

Are the multiple requests for release filed by Cédric Jubillar’s lawyers “logical” insofar as their client pleads his innocence?

During the investigation phase, I would say that we claim innocence more than plead it … Indeed, and in theory, the guilt or innocence of the accused are not grounds for placement in custody. Provisional detention, in criminal matters, to avoid the flight of the accused, a repeat of the offense, which incurs a heavy penalty, or to avoid pressure on witnesses or victims, or to avoid a disturbance in public order.

However, the publicity of the debates before the investigating chambers, as well as the specter of the detention of an innocent person and of judicial error, as in Outreau, mean that de facto, otherwise de jure, the question of the absence of evidence against the accused is necessarily raised as an argument of the one who, claiming his innocence, does not agree to remain in detention.

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