In spite of the promises of the measure, there is still little recourse to the anti-approach bracelet in France.
However, it is likely to be pronounced at multiple stages of the procedure, which this article proposes to review.
After two attempts at experimentation in 2010 and 2017, the law of December 28, 2019 “aimed at acting against violence within the family” will enshrine the anti-repulsion bracelet (BAR) in French law for good. From then on, the possibilities of recourse will multiply at all stages of the procedure.
Indeed, the actors of the penal chain as well as the leaders of associations for the prevention of sexist and sexual violence agree that the development of the device is disappointing with regard to its promises and its results abroad, in particular in Spain where the anti-collusion bracelet’s use is much more widespread1.
The causes of the delay seem to be twofold. On the one hand, the anti-approach bracelet is, like any technical technical device, subject to the risk of malfunction. However, as this is a measure taken to prevent an increased risk of domestic violence, these errors generate significant psychological stress for the protected person, which may explain certain reluctance to pronounce an RAB. On the other hand, it can be noted that in Spain the treatment of domestic violence is more global and does not rely solely on a set of measures but on jurisdictions specialized in the treatment of such violence, which tends to reduce the material and human cost of the measure.
The BAR may be granted prior to the trial phase (I) or as a sentence, imposed or reduced (II).
But before coming back to these different ways of granting the BAR, it is useful to recall how it works in practice. pratique.
0. The anti-approach bracelet, how does it work?
The BAR is designed to prevent the wearer of the bracelet from getting too close to a protected person, by permanently geolocating them to determine the distance between them.
Indeed, when he decides to implement a BAR, the judge determines two zones:
- a pre-alert zone, with a radius of 2 to 20 Km around the protected person: if this zone is crossed by the wearer of the bracelet, then he is contacted by technical operators in order to change direction.
- an alert zone, with a radius of 1 to 10 km around the protected person: if this zone is crossed by the wearer of the bracelet and he/she does not respond to the calls of the telesurveillance, then the latter will contact the police so that they can first ensure the safety of the protected person and then, in a second step, arrest the wearer of the bracelet.
The BAR therefore requires that the protected person is also geolocated. For this reason, the consent of the protected person is required for the implementation of the measure; if the person agrees, the geolocation of the protected person is ensured by an electronic box.
In practice, the anti-approach bracelet is undeniably cumbersome. Because of the number of actors mobilized in the implementation and monitoring of the measure2 as well as its incidental consequences on the life of the wearer of the bracelet3 (notwithstanding the infringement of individual freedom, which is its very principle).
1. The anti-repulsion bracelet in the pre-sentence phase
It is perhaps in the pre-sentence phase that the anti-approach bracelet is most likely to demonstrate its usefulness in achieving the balance between reducing the risk of reoffending and respecting the exceptional nature of incarceration.
If most often it is likely to be pronounced in the course of a judicial control (A), it can more exceptionally be pronounced in addition to a house arrest under electronic surveillance (B).
A. The BAR in the case of judicial control
The complexity of the implementation of the BAR and its particularly intrusive nature on the freedoms of the person placed under judicial control make the instruction the preferred framework for its pronouncement.
As provided for in articles 138-3 et seq. of the Code of Criminal Procedure, the BAR may be pronounced in the context of a placement under judicial control under 3 cumulative conditions:
- the person under investigation is facing a sentence of at least three years' imprisonment for an offence committed against his or her (ex-)spouse or (ex-)partner. the accused is facing a sentence of at least three years' imprisonment for an offence committed against his/her (ex-)spouse, (ex-)cohabitant or (ex-)civil union partner;
- the prohibitions to go to the home of the civil party and to enter into contact with her are pronounced, but are insufficient to prevent the renewal of the offence (art. R.24-15 CPP);
- the civil party expressly consents to the measure4.
The order granting the BAR is reasoned and issued by the investigating judge or the liberty judge, in accordance with of the Code of Criminal Procedure (R. 24-14 CPP).
It determines the alert and pre-alert distances as well as the duration of the measure, which cannot exceed 6 months, but may be extended for the same period without the total duration exceeding two years5.
At the end of the investigation, the maintenance of the anti-approach bracelet can be pronounced by a “separate, specially motivated” order in case of referral to the criminal court, or it continues to produce its effects in case of referral to the Cour d’assises6. But in all cases, the total duration of the measure cannot exceed 2 years (including the investigation).
The BAR can also be used to reinforce the prohibitions imposed as part of a judicial conttrol in much more common referral situations: referral for immediate appearance, summons by notice, appearance at a later date or decision to refer to a later hearing (art. R.24-19 CPP).
Finally, it should be recalled that under article 144-2 of the Code of Criminal Procedure, any decision ordering the release of a person placed in pre-trial detention may provide for the person to be placed under judicial supervision with a ban on contact with the civil party if the release “is likely to place the victim at risk. placed in pre-trial detention may provide that the person be placed under judicial supervision with a ban on contact with the civil party if the release “is likely to put the victim at risk”. Since a decree of December 24, 2021, this prohibition can be reinforced by the use of an anti-approach bracelet (art. D. 1-11-2 CPP).
B. The BAR in the event of an ARSE assignment
The electronic bracelet can also be used to reinforce an electronically supervised house arrest (ARSE). The usefulness of such a device is to further reduce the risk of encounters between the accused and the protected person, as the BAR prevents them from coming together during periods when they are allowed to leave the place of house arrest.
Insofar as the BAR complements the ARSE, the conditions for granting the latter must be respected (which we will not go into here). The conditions for granting this measure are therefore less severe than those of the BAR but more demanding than those of the ARSE, since if the ARSE can be granted for a larger number of offences, the BAR can only be added to it if the prohibitions to go to certain places and to enter into contact are granted but are judged insufficient to prevent the risk of repetition of the offence on their own (R.24-24 CPP)
It may be noted that such a system is cumbersome and may require a technical feasibility study to be carried out by the by the SPIP in the context of an ARSE7 as well as the operational implementation of the BAR. To remedy this complexity - and to promote the delivery of this reinforced ARSE - it would be appropriate to consider a unified unified system or to merge the BAR into the regime of mobile electronic surveillance, which already involves a geolocation measure8.
2. The anti-approach bracelet as a sentence or as a modified sentence
A. The BAR at sentencing
By reference to article 132-45°18 bis, article 132-45-1 of the Penal Code introduces the possibility of forcing a convicted offender to wear an anti-approach bracelet, to reinforce the prohibition on approaching the victim imposed as part of a probationary suspension.
It is therefore necessary that the sentence imposed be a probationary sentence for an “offence punishable by of at least three years' imprisonment committed against his or her spouse, cohabitant or partner bound by a civil solidarity pact, even when they are not cohabiting, or committed against the victim’s spouse, cohabitant or partner in a civil solidarity pact, including when they are not cohabiting, or committed by the victim’s former spouse or cohabitant or by the person who was linked to him or her by a civil solidarity pact”.
Consequently, the court can pronounce, as a probationary measure, a prohibition to approach the victim at less than a certain distance fixed by the decision and, “in order to ensure the respect of this prohibition”, force him to wear a BAR.
The consent of the victim and of the convicted person are both required, but do not have the same consequences: the refusal of the victim is an obstacle to the pronouncement of the measure, whereas the refusal of the convicted person constitutes a violation of his or her obligation and may lead to the revocation of the suspended sentence (and therefore to the execution of a firm prison sentence)
Given as part of a probationary suspension, the BAR is therefore a more severe and restrictive measure than the mere prohibitions on contact with the victim or on going near the victim’s home9, which are often imposed in cases of domestic violence.
B. The BAR during the execution of the sentence
Sentence modification – The wearing of an antitheft bracelet can finally be ordered as part of a sentence adjustment, whether it is a semi-liberty, an outside placement or a home detention under electronic surveillance (art. R.60-1 CPP).
Like the BAR imposed as part of a judicial control, the BAR imposed as part of a sentence adjustment is not a stand-alone measure but reinforces the prohibitions on going to certain places and on contacting the victim, when these alone are deemed insufficient to prevent the risk of repetition of the offense.
Logically, any unauthorized penetration of the bracelet wearer into the defined alert zone leads to the withdrawal of the sentence adjustment measure.
The Code of Criminal Procedure also provides for the possibility of placing a bracelet under BAR in the event of a split or suspended sentence, social and legal monitoring, conditional release, judicial supervision or placement under mobile electronic monitoring.
Mixed sentence and temporary absences - Article D.51 CPP, resulting from the decree of December 24, 2021, fills a gap in the procedure that was left space left vacant in the procedure to the detriment of the readability of the procedure.
This was the case for temporary absences, particularly when a person was sentenced to a mixed sentence: the time period for the execution of the probationary suspension including a BAR was logically suspended for the duration of the execution of the firm part of the prison sentence and did not begin to run until the end of the incarceration. This was a logical reasoning, but it allowed the convicted person to benefit from temporary absences without having to wear the BAR, even though it was imposed for the part of the sentence served in the open.
Now, under the new article D. 51 CPP, the prohibitions on contact or appearance “remain applicable during the time the person is incarcerated” and the same is true of the “mobile electronic anti-recruitment device, even if the obligation to wear the electronic device is suspended during the time the person is incarcerated. Measures whose execution time is suspended are therefore now applicable.
Section D. 51 refers to the provisions of section 138-3, and it must be concluded that it also applies when the BAR is issued in a pre-sentence setting10.
While it is commendable to want to ensure compliance with the prohibitions enacted for the benefit of a protected person, the legal system comes up against two limits. On the one hand, it leads to a legal contradiction, as the execution of a measure can now be both suspended and applicable. On the other hand, it seems difficult - if not impossible - to reconcile the practical and legal cumbersomeness of setting up the anti-approach bracelet with the system of temporary absences, whose interest lies precisely in the flexibility with which they can be granted.
It is tempting to say that there are as many cases of recourse to the BAR as there are BARs actually issued. While it is certainly commendable to have provided for its use at multiple stages of the procedure, it is to be feared that in many cases only the ink on the paper remains.
It is indeed difficult to overlook the human and material burden of implementing this measure, which will be difficult to reconcile with referrals for a few months or with the granting of temporary absences for a few days. It would be advisable to first develop its use to the sole framework of judicial control and sentencing in order to live up to the promises made to the complainants who, since 2019, are systematically informed of the possibility of putting in place an anti-approach bracelet11.
In Spain, 10,000 bracelets are deployed each year, while in France about 900 bracelets are currently in use. Source : « Bracelets antirapprochement : un outil précieux au développement laborieux », S.Brethes et C. Poloni, Médiapart, 18 novembre 2022. ↩︎
In particular, concerning the health of the wearer of the bracelet: a medical examination may be ordered in order to verify the compatibility of the measure with the state of health of the wearer of the bracelet (R. 24-17 CPP), but in any case the wearing of the bracelet is incompatible with the carrying out of a scanner or an MRI. ↩︎
This is normal insofar as she will be obliged to wear a geolocation device. It should be noted that the consent of the accused is not required for the granting of the measure, but that his refusal constitutes a violation of the judicial control likely to justify his placement in provisional detention. ↩︎
The decision to extend the measure is the subject of a new reasoned order. ↩︎
In accordance with the requirements of articles 179 and 181 of the Code of Criminal Procedure. ↩︎
Feasibility study mandatory in the cases referred to in °4 and °5 of article 142-6 CPP, except “specially motivated decision of refusal by the investigating judge” (D.32-4 CPP). ↩︎
Indeed, the ARSE can be executed in the form of electronic surveillance which allows the detection of the crossing of a geographical area (art. 142-5§1 CPP) but also in the form of mobile electronic surveillance (provided in particular for violence committed against one’s (ex-)spouse/partner) (art. 142-5 §5 CPP). ↩︎
Respectively provided in °13 and °9 of Article 132-45 CP. ↩︎
For example, in the case where a person is convicted and detained in the first case and placed under judicial control with BAR in the second case: the temporary absences will have to be carried out while wearing an anti-approach bracelet. ↩︎
Provision. 15-3-2 Code of Criminal Procedure. ↩︎