It is a question that arises – or should do – each time there are claims of a fresh police blunder. It is now at least seven years since a French police officer was held in custody pending trial after having used their weapon in the line of duty. There is no reason to believe that circumstances will be any different after the death of a Chinese national shot by an officer at his Paris home on Sunday 26 March.
Shaoyo Liu, 56, a father-of-five, was killed at his home in the 19th arrondissement of the city after police officers were called about an alleged disturbance at the property. The Paris prosecution authorities have now opened two separate judicial investigations. One will examine the details of the incident itself. The second has been handed to the police watchdog body the Inspection Générale de la Police Nationale (IGPN) to see if the police officers involved used legitimate force.
It is clear that there are two very different versions of the events that took place at the home in rue d'Aubervilliers on Sunday evening. The police say they knocked at the door of the apartment after a neighbour had contacted them over cries they had heard coming from inside. Officers say they had themselves heard shouts and crying when they arrived and that when no one opened the door they decided to break it down.
The police say that Shaoyo Liu then rushed at one of the officers and stabbed him with a pair of scissors – 25cm long – under the armpit. The Chinese national then reportedly tried to stab the officer in the face and it was at this point that his colleague, who was in the doorway, opened fire and killed Shaoyo Liu with a shot to the throat.
However the family completely disputes that version of events. “They were armed, I didn't know whether they were real police or fake,” one of the victim's daughters said on Facebook, explaining why she had not opened the door. She said that if her father had scissors it was simply to “fillet a fish” in the kitchen. The shooting led to protests from the Chinese community and disturbance in which 35 people were arrested and three officer were injured. The Beijing authorities called on France to make sure it protected Chinese nationals in the country.
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One key question now is what happens to the police officer who fired the fatal shot between now and the end of the investigations. For when police officers are the targets of violence, ordinary citizens implicated in the attacks can often find themselves kept in custody for many months before facing trial, even in cases where the incriminating evidence is weak or even non-existent. It is true that police officers can be and are placed in custody over issues involving them as private individuals or over drug dealing. But a November 2016 report by the law and order research and administrative body the Institut National des Hautes Études de la Sécurité et de la Justice (INHESJ), written after an attack on four officers whose car was set alight in the Paris suburb of Viry-Châtillon, suggests that when it comes to alleged offences committed in the line of duty, police officers are highly unlikely to be held in custody.
The report established that between 2010 and 2016 some 56 proceedings were opened in cases where the use of weapons by members of the security forces had led to death. Of these it was ruled that there was no case to answer in 25 of them. In a further eight there was ultimately no criminal proceedings. Twenty of the cases led to the establishment of a judicial investigation, with police officers placed under formal investigation in five of them. Two of those officers were put under judicial supervision – which means the authorities kept an eye on their movements – but in none of the 56 cases was any officer detained in custody. Moreover, fewer than 8% of police officers questioned by the IGPN were interviewed in police custody.
Under French law potential suspects can be remanded in custody only if that person is under investigation for an offence that carries a sentence of more than three years imprisonment. In theory even then a person can only be remanded in custody if judicial supervision or the wearing of an electronic bracelet is deemed insufficient to:
- preserve evidence or material proof
- stop witness tampering or pressure being put on victims or their families
- stop fraudulent co-operation between the person under investigation and their accomplices to stop them, for example, from inventing alibis
- ensure the person under investigation is available to the investigating judges
- bring an end to the offence or stop it being committed again
- bring an end to exceptional and persistent disorder caused by the affair
If none of these factors are present and even if someone has died, there is in theory no reason one should object to a police officer not being held in custody. But inevitably questions arise when one points out that ordinary citizens are placed in custody on a daily basis, to the great dismay of their lawyers who believe their clients do not deserve to to be behind bars pending trial either. Are police treated more indulgently than others in this respect? “It clearly would not be normal for the policeman who fired not to be placed in custody,” says Calvin Job, Shaoyo Liu's lawyer. “It shows that all law and order policies tend more to justify force and violence rather than strengthen justice and harmony within our society.”
Arié Alimi, lawyer for the Human Rights League in France, says that he is “intrinsically against temporary custody except in extremely serious cases involving someone's death where there is a risk of it being repeated”. He says, however, that there is an issue of inequality over the way people are treated, all the more so given that “when there has been assault and affray, and even when the sentence could not be three years, some accused are nonetheless placed in custody despite what the law says”.
'If the police are overprotected they have a feeling of excessive power'
Lawyer Arié Alimi notes, however, that there are several basic rules behind the judges' reasoning. One is that police officers have a monopoly on legitimate violence: a mere citizen does not have the right to be violent. Moreover, “the police's job is to be in contact with violence. They form the first line of defence when an offence or crime is committed,” says Arié Alimi. “They thus have a greater likelihood of going out of control, and it's legitimate to take that into account. Finally, the claims against the police often come from people who are themselves suspected of having committed an offence, and it can thus sometimes simply act as a defence strategy.”
However, Arié Alimi does not mince his words when he describes what he sees as “one single and identical institution – the judicial institution. The prosecution, which usually oversees and gives the orders to the police to act is, depending on the circumstances, [also] going to investigate them and pursue them. This close relationship is a problem, even if no one wants to see it as such.” The lawyer continues: “It doesn't worry me that there is no custody. The problem is the low number of investigations that are opened when the police are involved. It's even more of a problem because if the police are overprotected they have a feeling of excessive power. It's not right to close the file on many complaints while violence continues to increase.”
Speaking for the judges' professional body the Union Syndicale des Magistrats (USM), president Virginie Duval gives a very different interpretation of the statistics mentioned earlier. “In the last seven years there have been just five formal investigations. There were thus just five cases where pre-trial custody could have occurred. That's not enough to draw conclusions from. You don't have to go into custody [simply] because you've killed someone. Do jewellers who kill a robber get held in custody?” The answer is, not always. She continues: “We're speaking anyhow of people who are authorised to use their weapon, and for whom it's extremely difficult to know if they had to use their weapon or not when they were attacked. If there is no need for them to be in custody for the investigation to proceed as it should, there's no reason to imprison them.”
However, critics wonder, whether the criterion that allows people to be placed in custody when it could help end “public order disturbances” isn't met when a death leads to clashes, demonstrations and violence as in the current Shaoyo Liu affair? Or in the Adama Traoré and Theo cases and also the Amine Bentounsi affair, where after an appeal it was accepted that a policeman was guilty of having killed a man with a bullet in the back? “It's an exceptional criterion,” says Virginie Duval, who insists that judges follow the criteria as set out by the law, as for everyone who is answerable to the law. “The legislators wanted to limit custody to a strict minimum,” she points out. But is this desire for limited use of custody only put into practice when it comes to police officers? “I don't know,” Duval says. “Perhaps you should ask the same question of company bosses or politicians. I don't have an answer.”
Philippe Capon, secretary general of the UNSA police trade union, takes a different line. “In this type of situation the investigation services at the IGPN get going and move very quickly and must determine if the use of the weapon is legitimate or not. Within that framework it's possible to suspend the police officer,” he says. “But why put them in custody if they give guarantees as to their availability and presence? That would be to admit that there's a risk they will evade justice. There's an impression in France that police are trigger-happy. But police officers don't take pleasure in using their weapon. It's traumatising. But just because they are not in custody doesn't mean they are not under judicial supervision. The police officer doesn't just go home as if nothing has happened. And this is a profession when there is a clearing out when there's a problem,” says Capon.
This last point is a classic response by police officers, who constitute less than 10% of public sector workers and yet who each year account for a half of all administrative punishments meted out in the public sector. However, when the Ministry of the Interior discusses these figures, its emphasis is on the disciplinary sanctions handed out rather than the impartiality of the justice system. The details of these punishments shows that the Ministry is considerably more severe when it comes to failings regarding internal rules than over police violence. Sanctions for violence committed by officers represent less than 5% of the overall number of disciplinary sanctions handed out across the police force in Paris.
Sociologist Cédric Moreau de Bellaing, a senior lecturer at the prestigious École Normale Supérieure higher education institute, has sifted through 900 cases opened by the Inspection Générale des Services (IGS), the Paris branch of the IGPN. Cases involving injuries caused by the police to people made up 36% of the total, but constituted only 20% of those cases where punishment was handed out.
Moreover, out of those cases of police violence that ended in a punishment, the great majority – 70% - involved violence committed by police officers outside their work, for example domestic violence, assaults on minors, neighbour disputes and so on. Yet some 89% of all the cases originally opened over allegations of police violence involved officers acting in the line of duty. The number of cases where violence carried out in the line of duty was punished thus represented just 4.2% of the total.
One can well imagine, then, the scandal that there would be if some of these officers had been held in custody. During the hearings for the INHESJ's November 2016 report, police trade unions did not even raise the issue of custody, almost as if it would have been out of place to do so. However, the gendarmes' staff representative body the Conseil de la Fonction Militaire Gendarmerie (CFMG) called for the creation of a procedural status that would exempt them from being placed in custody immediately after having discharged their weapon, something that is seen as “profoundly humiliating and unfair, taking account of the status of those being questioned and the special nature of their duties”.
According to the INHESJ's report the director generals of the National Police and the National Gendarmerie “showed themselves very receptive to this argument”. For according to unions representing the forces of law and order the “internalising of the legal risk is a source of inhibition for all officers when it comes to shooting, in particularly dangerous circumstances”.
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- The French version of this article can be found here.
English version by Michael Streeter