Nine days in the cells: cocoa theft, a juvenile, and a night search
At 23:30 on 2 February 2025, police officers of the Bonabéri station, acting on a complaint of theft of 40 sacks of cocoa beans worth 8,000,000 FCFA from a store in Douala, arrest Mr Tchouta and his nephew, aged 17, while they are loading sacks into a pickup. Both are held at the station. On 3 February, at 1 a.m., officers enter Mr Tchouta's home without a warrant and seize 8,000,000 FCFA in cash and a machete. The nephew is locked in a cell with four adults and signs a statement at 5 a.m. on 4 February without counsel or any representative of his parents. On 11 February - nine days after the arrest - both are brought before the State Counsel, who charges them with aggravated theft and receiving stolen property ('recel'). A third man, Mr Njoya, is charged with recel for having bought 10 sacks at half price. Before the trial court, counsel moves to annul the search and the statements; the judge replies that 'the court seeks only the truth'.
1. Identify the procedural irregularities in the police custody and in the search, and explain how nullities must be raised and what their effect is.
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Three categories of irregularity appear on these facts.
Duration of police custody. Police custody is a strictly limited measure. It has an ordinary maximum duration which may be extended only by a written authorisation of the legal department, and the person must be brought before the Procureur at the end of the period. Nine days with no judicial act is nowhere near that framework and constitutes unlawful detention, which is both a procedural nullity and a separate criminal offence under the Penal Code (arrestation/détention arbitraire), independently of the outcome of the theft case.
The juvenile. A minor must be held separately from adults, his parents or guardian must be informed immediately, and his statements must be taken in the presence of counsel or of the person responsible for him. A statement obtained at 5 a.m., without counsel, without his parents, after being locked up with four adults, violates the rights of the defence in a way that cannot be cured.
The search. A home search must be carried out in the presence of the occupant, with witnesses, and within lawful hours; night searches are permitted only in flagrant cases or with a written authorisation of the judicial authority. A 1 a.m. entry on a simple warrantless basis is irregular, and the cash and the machete are the direct product of that act.
On the regime: these are nullités de procédure, raised by written request before any defence on the merits, and the court may and must examine certain of them of its own motion where they touch public order and the rights of the defence. The court must give a reasoned ruling. If an act is annulled, it is removed from the file together with its prolongements - the acts that depend on it. The judge's formula that 'the court seeks only the truth' is not a legal answer: the search for truth is conducted within the procedure, not outside it.
2. Discuss the classification of the offences and the position of Mr Njoya.
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The taking of another's property by fraud is theft under section 318 of the Penal Code. Aggravating circumstances raise it to aggravated theft: commission at night, breaking or entry into premises, use of a vehicle, plurality of perpetrators acting in concert. On the facts, the 23:30 arrest and the pickup support night and concert; counsel must check whether breaking was actually charged, since the aggravating circumstance must be alleged and proved, not presumed.
The nephew is in a different position from his uncle. He is 17, so he benefits from the excuse de minorité, which reduces the applicable penalty, and he must be judged under the special procedure for minors, with some measure of education or protection available. If he only kept watch or loaded sacks under his uncle's direction, he is a co-author if he physically took the property, or a principal as accomplice by aid and assistance under section 97 if his role was secondary - in both cases punishable as a principal, but with the mitigating effect of minority.
Mr Njoya's case turns on a classic distinction. Receiving stolen property requires possession of the thing, knowledge of its criminal origin, and no prior agreement. Buying 10 sacks at half price, without invoice, at night, from persons known to him, is strong circumstantial evidence of knowledge; the recel will probably be retained. But if the investigation shows that he agreed in advance to buy the goods, thereby facilitating the theft, recel disappears and he becomes an accomplice to the theft itself: the two cannot coexist, because recel is by definition a post-factum offence. Counsel should attack the proof of knowledge and demand that the charge not float between the two qualifications, since the accused must know what he is answering.
3. Beyond the nullities, what separate remedies exist for the nine-day custody and for the treatment of the juvenile?
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The nullity of the procedure is not the only consequence. Unlawful detention gives the detainee a right to be released immediately and a right to reparation.
First, release: an application for provisional release should be filed, and where there is no judicial warrant at all, a demand to the Procureur and, failing that, an application to the court for release, since no lawful detention title exists.
Second, State liability: the police acted in the exercise of a public service. Where the custody exceeds all legal limits without any judicial authorisation, the fault is a faute lourde of the police service, which opens an action for damages against the State before the competent administrative court. The injury is distinct from the outcome of the criminal case: even if the accused is convicted of theft, he has been unlawfully held for days, and moral and material damage is compensable.
Third, individual criminal responsibility: the officers who held a person without bringing him before the legal department, and who entered a home at 1 a.m. without authorisation, may be prosecuted for unlawful detention and violation of domicile. Counsel should request that the file be transmitted to the Procureur by a 'soit-communiqué' and should preserve the custody register, which is the crucial proof.
For the juvenile, the additional remedy is procedural: the absence of parents and counsel voids the statement, and the placing in a cell with adults is itself a breach for which the head of the station can be disciplined. The defence should ask that the statement be removed from the file, and that the question of his age be verified by a medical or civil-status document, since age is the trigger of the special regime.