1. What is an open hearing?
Bad news, you have received a summons for a free hearing... This means that the Customs suspect you of having committed or attempted to commit a "customs" offence. Article 67 F of the Customs Code states that :
"The person in respect of whom there are reasonable grounds for suspecting that he has committed or attempted to commit an offence and who is not placed in customs detention may only be heard on these facts after notification of the information provided for in Article 61-1 of the Code of Criminal Procedure. [...] "
The good news is that you are not placed in customs detention, which is the equivalent of police custody in customs matters.
Customs will summon you to determine whether their suspicions about a potential offence or attempted offence are well-founded: this is the purpose of the hearing and it means that an investigation is underway, with possible criminal/customs implications.
2. What to do if you are called to an open hearing?
Notify your customs lawyer immediately.
It will be necessary to determine who initiated this hearing and in what context it took place: it may be agents of the DNRED (National Directorate of Intelligence and Customs Investigations), the Judicial Customs of the SEJF (Judicial Investigation Service of the Finance Department), formerly the SNDJ (National Judicial Customs Service), or investigators from any other service...
Customs, Public Prosecutor's Office, Investigating Judge, European Public Prosecutor's Office? Your lawyer will identify the framework and the context of this hearing, to explain the ins and outs to you.
It will be important to prepare for the question and answer session, if you decide to go: you are not obliged to go, it is the very principle of the so-called "free hearing".
3. What are my rights during an open hearing? What happens on the day?
You will not go to the hearing alone: your lawyer will work with you to ensure that your rights are respected and that the procedure is followed.
Customs will first remind you of your rights and what the offence is or is suspected to be, in accordance with Article 67 F of the Customs Code and Article 61 of the Code of Criminal Procedure:
"Without prejudice to the specific safeguards applicable to minors, a person in respect of whom there are reasonable grounds for suspecting that he or she has committed or attempted to commit an offence may not be heard freely on these facts until he or she has been informed :
1° The presumed nature, date and place of the offence he or she is suspected of having committed or attempted to commit ;
2° The right to leave at any time the premises where she is being heard;
3° Where appropriate, the right to be assisted by an interpreter;
4° The right to make statements, to answer questions or to remain silent
Free to go, free to leave, free to speak or to remain silent according to the texts. In practice, nothing is so simple.
Customs will have prepared a number of questions, usually between 15 and 100, which you will discover one after the other. Be careful, your answers allow Customs to confirm their suspicions, very rarely to clear you!
At the end of the hearing, your lawyer will review the written transcript of your answers. To sign or not to sign? Your lawyer will talk to you about this in an appointment.
4. After the open hearing?
Several scenarios are possible, depending on the framework of the customs investigation.
In most cases, the free hearing takes place in the context of a "classic" investigation, which will lead to the notification of a customs adjustment. You should expect the investigation to continue, and a possible notification of an offence (debt and offence) which materialises the risk of criminal proceedings before the criminal courts, unless a settlement is reached.
