Security And Freedom Law
Decision n ° 80-127 DC of January 19 and 20, 1981
Law Strengthening Security and Protecting Personal Freedom
Article 61 paragraph 2
Deputies Senators
Considering the Constitution;
Considering the ordinance of November 7, 1958 on the organic law on the Constitutional Council, in particular Chapter II of Title II of the said ordinance;
Heard the rapporteur in his report;
On the conformity with the Constitution of the legislative procedure:
Considering that under article 45 of the Constitution: Any bill or proposed law is examined successively in the two assemblies of Parliament with a view to adopting an identical text. When, as a result of a disagreement between the two assemblies, a bill or proposal for a law could not be adopted after two readings by each assembly or, if the Government has declared an emergency, after only one reading by each of them ‘between them, the Prime Minister has the power to call for the meeting of a joint committee responsible for proposing a text on the provisions remaining under discussion.
Considering that it follows from the terms of this article that the joint committee can only propose a text if it relates to provisions still under discussion, that is to say which were not adopted in the same terms by both assemblies without it being necessary, moreover, that these provisions have been introduced before the last reading before the assembly seized second; that the joint committee cannot therefore be reproached for having proposed texts on provisions not appearing among those discussed by the National Assembly first seized of the bill declared urgent and whose vote by the Senate resulted from the normal exercise of the legislative function and the right of amendment.
Considering that the provisions of the regulations of parliamentary assemblies have no constitutional value; that, consequently, the authors of the referrals could not usefully contest before the Constitutional Council the interpretation given to certain provisions of the regulations of the National Assembly during the first session of December 18, 1980, during the discussion of the proposals of the joint parity commission, whereas such an interpretation is not contrary to any principle or rule of constitutional value;
Considering that thus the law was deliberated and voted according to a procedure in conformity with the Constitution;
On Title I (art. 2 to 37) of the law:
Considering that Title I of the law submitted to the consideration of the Constitutional Council sets out various criminal law provisions relating to attacks on the security of persons and property; that, while it includes certain softening of the penalties provided for by previous laws, it mainly enacts provisions tending to more severe repression of the most serious acts of violence against people and property; that to this end, with regard to such attacks, it modifies the conditions of recidivism, limits the effects of mitigating circumstances as well as the conditions for granting the suspension, retains certain causes of aggravation of penalties, modifies the definitions of certain offenses and the penalties incurred by their perpetrators as well as certain previous provisions relating to the
Considering that, according to the authors of the various referrals, all of these provisions aggravating the repression of attacks on the security of persons and property and, in any case, some of them, would be contrary to principles or rules of constitutional value, namely the principle of the legality of offenses and penalties, the principle that the law should only establish penalties that are strictly and obviously necessary, the principle of individualization of penalties, the right to strike and the right to strike. union;
With regard to the principle of the legality of offenses and penalties:
Considering that under article 8 of the Declaration of the Rights of Man and of the Citizen of 1789 no one can be punished except by virtue of a law established and promulgated prior to the offense and legally applied; that this results in the need for the legislator to define the offenses in terms sufficiently clear and precise to exclude arbitrariness;
Considering that, although articles 16 and 17 of the law submitted for examination by the Constitutional Council provide new definitions of threats offenses, their provisions are neither obscure nor imprecise; that the term threat, already used by the penal code, has a certain legal meaning; that the various other elements constituting the offenses covered by these texts are stated without ambiguity, in particular as regards the object of the threats, their conditional or unconditional character, the persons to whom they are addressed; that the use of the term by any means whatsoever which tends to cover all modes of expression of threats does not introduce any element of uncertainty in the definition of offenses.
Considering that article 24 of the law tends to replace articles 434 to 437 of the penal code and to define various offenses consisting in the destruction or willful deterioration by various means of movable objects or immovable property; that the terms destroyed, damaged, movable objects, immovable property are neither obscure nor imprecise; that the distinctions made with regard to both the circumstances or the means of destruction or deterioration and the persons to whose prejudice such destruction or deterioration are committed are unambiguous; that if, in the new article 434 of the penal code, the legislator excludes light deterioration from repression, this provision, established in favor of the authors of minor acts and that
Considering that none of the other provisions of Title I of the law submitted to the consideration of the Constitutional Council is criticized in the name of the principle of the legality of offenses and penalties and can no longer be regarded as disregarding it;
Regarding the principle that the law should only establish penalties that are strictly and obviously necessary:
Considering that, according to article 8 of the Declaration of the Rights of Man and of the Citizen of 1789, the law should only establish penalties that are strictly and obviously necessary; that, according to the authors of two of the referrals, it would be for the Constitutional Council to censure the provisions of Title I of the law submitted for its examination which authorize or impose a repression, in their eyes excessive, either by the effect of the penalties attached to offenses, either by worsening the conditions for recidivism, or by limiting the effects of mitigating circumstances, or by restricting the conditions for granting the stay, or by modifying the conditions for the execution of sentences.
Considering that article 61 of the Constitution does not confer on the Constitutional Council a general power of appreciation and decision identical to that of the Parliament, but only gives it competence to rule on the conformity with the Constitution of the laws referred to its examination .
Considering that, within the framework of this mission, it is not for the Constitutional Council to substitute its own assessment for that of the legislator with regard to the necessity of the penalties attached to the offenses defined by it, whereas no provision of the Title I of the law is manifestly contrary to the principle laid down by article 8 of the Declaration of 1789;
With regard to the principle of individualization of penalties:
Considering that, according to the authors of the referrals, the law submitted to the review of the Constitutional Council would disregard the principle of individualization of penalties; that in fact, some of the provisions voted would oblige the judge, with regard to certain defendants or accused, either to pronounce sentences of which the minimum is determined, or to automatically refuse the granting of any stay and would also prohibit the authorities competent to have recourse, at least for a certain period of time, to more relaxed methods of execution of sentences; that in this way it would be prohibited, in certain cases, to take account of the factors of an individual and concrete nature allowing the application of the criminal law in terms adapted to the personality of the offender and to prepare the latter’s reintegration into society; that
Considering, on the one hand, that, if under the terms of the aforementioned article 8 of the Declaration of 1789 the law should only establish penalties that are strictly and obviously necessary, this provision does not imply that the necessity of the penalties must be assessed solely from the point of view of the personality of the convicted person and even less that for this purpose the judge must be vested with an arbitrary power which, precisely, Article 8 of the Declaration of 1789 intended to proscribe and which would allow him to at will, to escape the criminal law, except in cases of irresponsibility established by it, people convicted of crimes or misdemeanors.
Considering, on the other hand, that, although French legislation has given an important place to the individualization of penalties, it has never conferred on it the character of a single and absolute principle prevailing in a necessary manner and in all cases over the other foundations of penal repression; that thus, even supposing that the principle of the individualization of penalties can, within these limits, be regarded as one of the fundamental principles recognized by the laws of the Republic, it could not prevent the legislator from, while leaving a wide discretion to the judge or to the authorities responsible for determining the terms of execution of sentences, establishes rules ensuring effective repression of offenses;
With regard to the right to strike and the right to organize:
Considering that, according to the authors of the referrals, the provisions of Articles 16, 17 and 30 of the law submitted for examination by the Constitutional Council would infringe the exercise of the right to strike and of the right to organize recognized by the Constitution;
Considering, on the one hand, that articles 16 and 17 of the law, replacing various provisions of the penal code, relate to various threats offenses; that, as it was said above, the offenses envisaged and repressed are defined in terms containing neither obscurity nor imprecision; that none of the offenses established by Articles 16 and 17 of the Law is constituted if there is no threat to commit a crime or an offense. that, under these conditions, it is excluded that the application of these provisions could, in any way, prevent or hinder the legal exercise of the right to strike or the right to organize;
Considering, on the other hand, that the purpose of article 30 of the law is to insert in the law of July 15, 1845 on the police of the railways an article 18-1 as follows: Anyone, in order to hinder or obstruct the movement of vehicles, will have placed on the track an object obstructing their passage or will have used any means to obstruct or impede their movement will be punished by imprisonment of three months to two years and a fine of 1,000 F to 30,000 F or one of these two penalties only.
Considering that the repression of obstacles or hindrances to the movement of railways resulting from the deposit of an object on the track is not likely to prevent or hinder in any way the legal exercise of the right to strike or the right to organize;
Considering that, if the penalties provided for by the aforementioned text are, moreover, applicable to anyone, with a view to obstructing or obstructing the circulation of vehicles … will have employed any means whatsoever to obstruct or impede their circulation …, these provisions, which require positive action on the part of the perpetrators of the acts complained of, cannot be aimed at persons legally exercising the right to strike recognized by the Constitution, even if the cessation of their work has the effect of disrupting or suppressing traffic cars ;
Considering that thus, the provisions of articles 2 to 37 forming Title I of the law submitted to the examination of the Constitutional Council are not contrary to the constitution;
On Title II (art. 38 to 80) of the law:
With regard to article 39 of the law relating to the extension of police custody in the event of certain attacks on the liberty of persons or certain aggravated thefts;
Considering that the authors of the referrals argue against the conformity with the Constitution of article 39 of the law submitted to the examination of the Constitutional Council the fact that the decision of extension of twenty-four hours of the custody to view in the event of certain violations of the liberty of persons or certain aggravated thefts can be taken by a magistrate who does not have the capacity of investigating judge; that, in such a case, this magistrate, either will rule without real examination of the file and therefore without providing serious guarantees to the person concerned, or else, having carried out such an examination, will be found to have prejudged the guilt of the person concerned in the case which he may have to hear as president or as a member of the trial court; that finally,
Considering that the scope of the provisions criticized concerns investigations relating to specific offenses calling for specific investigations, such as the arrest, detention or kidnapping of persons, the taking of hostages, the kidnapping of minors, theft aggravated by carrying weapons and committed by two or more people;
Considering that, if the intervention of a magistrate of the seat to authorize, in these cases, the prolongation of the police custody, is necessary in accordance with the provisions of article 66 of the Constitution, no principle or rule of constitutional value n ‘demands that this magistrate have the quality of investigating judge;
Considering that the magistrate who will necessarily have had to examine the file to authorize the extension of twenty-four hours of police custody will not have made an act of investigation nor prejudged the guilt of the person concerned.
Considering, moreover, that the provisions of paragraphs II, III and V of article 39 of the law relating to the medical surveillance of the person in custody, constitute additional guarantees for the benefit of the latter;
Considering, therefore, that article 39 of the law submitted to the examination of the Constitutional Council is not contrary to the Constitution;
With regard to articles 47 to 52 relating to the correctional procedure:
Considering that, according to the authors of the referrals, Articles 47 to 52 of the law submitted to the consideration of the Constitutional Council should be declared non-compliant with the Constitution; that in fact, in correctional matters, they allow the public prosecutor, by a discretionary decision, to appeal directly to the court without prior information entrusted to an examining magistrate, even in the absence of flagrante delicto and even though the accused could be the subject of a warrant of committal; that the choice thus open to the public prosecutor at his discretion between a procedure comprising prior information by the judge of instruction and a procedure not including such prior information would be contrary both to the principle according to which only the law can fix the criminal procedure, to the rights of the defense and to the equality of the persons before the justice; that in addition, the absence, in the texts criticized, of any provision providing that the person concerned may be assisted by a lawyer during his appearance before the public prosecutor and before that he chooses between the various possible procedures.
Considering that by virtue of the new article 393 of the code of criminal procedure, as it results from article 51 of the law submitted to the examination of the Constitutional Council, the public prosecutor can, if he considers that information is not necessary, proceed either by summons of the accused to the court by means of a report, or by immediate referral to the court, or by prior referral to the president of the court or a judge delegated by him;
Considering that, if by virtue of article 7 of the Declaration of the Rights of Man and of the Citizen of 1789 and of article 34 of the Constitution, the rules of criminal procedure are established by law, it is permissible to the legislator to provide for different rules of criminal procedure according to the facts, the situations and the people to whom they apply, provided that the differences do not result from unjustified discrimination and that equal guarantees are guaranteed to the litigants;
Considering that the institution of the summons by minutes, that of the immediate referral to the court and that of the prior referral to the president of the court or the judge delegated by him are intended to make it possible to seize without unnecessary delay the trial court in cases for which information is not necessary; that this object is consistent with the proper functioning of justice and the freedom of persons liable to be provisionally detained.
Whereas, if the power to assess to what extent recourse to the information procedure entrusted to the investigating judge is not necessary and then to use one of the direct referral procedures is attributed to the public prosecutor the Republic is because of the fact that the burden of prosecution and proof falls on it; that an irrelevant recourse by the public prosecutor to one of the direct referral procedures would necessarily have the consequence, because of the presumption of innocence enjoyed by the accused, either the release of the latter or the decision to the trial court to provide additional information provided for in Article 396, paragraph 2, of the Code of Criminal Procedure as it results from Article 51 of the law subject to the
Considering that, if the aforementioned new article 393 of the code of criminal procedure, as it results from the law submitted to the examination of the Constitutional Council, does not provide that the person referred to the public prosecutor may be assisted by a lawyer, it is because this magistrate who only has the right to decide by which means he exercises his prosecution is deprived by the new law of the power to issue a committal warrant, even in the event of flagrante delicto, such a warrant can only be awarded by a judge at the bench.
Considering that the provisions of Articles 397, 397-1, 397-2, 397-3, 397-4, 397-5 of the Code of Criminal Procedure as they result from the law submitted to the examination of the Constitutional Council provide justiciable, with regard to his individual freedom, the same guarantees as those from which he would benefit before the examining magistrate; that indeed, no warrant of deposit or measure restricting his freedom can emanate only from a magistrate of the seat; that the means of appeal against such decisions are the same as if they emanated from the examining magistrate; that the conditions to which the possibility of committal warrants or judicial control measures is subject are not linked to the choice by the public prosecutor of one of the direct referral procedures.
Considering that under article 397-6 of the Code of Criminal Procedure, as it results from the provisions of the law submitted to the examination of the Constitutional Council, In all cases the case must be judged on the merits by the court within two months. In the absence of a judgment within this period, the measures of provisional detention or judicial control automatically cease to have effect, and the defendant detained, if not for another reason, is automatically released;
Considering that, regardless of the option made by the public prosecutor between the various prosecution procedures and regardless of whether or not there was prior information entrusted to an examining magistrate, the judgment of the the case on the merits belongs to the same court; that this, enlightened if necessary by the additional information that it will have been able to order in any event, must rule on the guilt of the accused, always presumed innocent, according to the same rules of form and substance; that thus the provisions in question are not contrary to the rights of the defense or to equality before the courts.
Considering, finally, that under the provisions of article 397-7 of the code of criminal procedure, as it results from the law submitted to the examination of the Constitutional Council, the provisions of articles 393 to 397-6 do not are applicable neither to minors, nor in matters of press offenses, political offenses or offenses for which the prosecution procedure is provided for by a special law;
Considering, therefore, that Articles 47 to 52 of the law submitted to the consideration of the Constitutional Council are not contrary to the Constitution;
With regard to articles 55 and 56 of the law relating to criminal procedure:
Considering that article 55 of the law submitted to the examination of the Constitutional Council is criticized as, subjecting the investigating judge to a general control by the president of the indictment chamber, it would be contrary to the principle the independence of the judges of the bench enshrined in article 64 of the Constitution;
Considering that article 220 of the code of criminal procedure instructs the president of the indictment chamber to ensure the proper functioning of the investigating offices within the jurisdiction of the Court of Appeal, to verify, in particular, the conditions of application of the provisions which allow the examining magistrate, when he is unable to carry out himself the acts of the investigation other than the interrogations and confrontations of the accused, to have them carried out by the officers of the judicial police as well as those which require it to verify the elements of information thus collected and, finally, in general, to ensure that the procedures do not suffer any undue delay; what’
Considering that the powers thus attributed to the president of the indictment chamber for the application of the first paragraph of article 220 of the code of criminal procedure are simply intended to enable him to verify the preparation of the files so as to avoid any undue delay in providing information;
Considering that this text does not allow the president of the indictment chamber to guide the choice of the decisions of the examining magistrate or to reform them and that, consequently, the powers given to this magistrate of the court of appeal in the the interest of a good administration of justice by Article 220 of the Code of Criminal Procedure as completed do not affect the independence of the investigating judge;
Considering that, according to the authors of the referrals, article 56 of the law submitted to the examination of the Constitutional Council, by instituting a control of the hierarchical nature of the president of the indictment chamber or of the indictment chamber itself even on the examining magistrate, would also undermine the independence of this magistrate, guaranteed by article 64 of the Constitution; that it would deprive the accused of the benefit of the double degree instruction which is, in criminal matters, an essential application of the principle of the double degree of jurisdiction; that it would seriously infringe the rights of the defense; that in this way, it should be declared non-conforming to the Constitution.
Considering that article 56 of the law submitted to the examination of the Constitutional Council adds to the code of criminal procedure new articles 196-1 to 196-6; that article 196-1 reads as follows: In criminal matters, six months at the earliest after the first indictment, the president of the indictment chamber may, on the requisitions of the public prosecutor, at the request of the accused or of the civil party or ex officio, refer the proceedings to the said chamber. If the information is not completed at the end of a period of one year from the first indictment, the file must be sent to him and he can either prescribe the continuation of the preparatory investigation, or refer the case. proceedings in the indictment chamber. In all cases,
Considering that the powers given to the president of the indictment chamber by the new article 196-1 of the code of criminal procedure allow him to seize this chamber of the court of appeal if he considers that it is necessary to take a measure necessary to avoid unjustified delays in the investigation of a case, but in no way provide it with the means of guiding the choice of decisions which it is up to the judge responsible for the investigation alone to take nor that of reforming these decisions; that the indictment chamber, when the proceedings have been referred to it in the cases provided for by article 196-1, may, by reasoned decision and after adversarial debate, either, under the supervision of the Court of Cassation, declare itself incompetent or say that there is no cause for prosecution, either, without this judgment being subject to legal remedies, either deciding that the investigation will be continued by the investigating judge previously seised or by another investigating judge, or else take up the procedure itself; that, in the event that the judgment designates the competent authority to carry out the information, it relates only to a measure of judicial administration which does not call into question any of the decisions taken by the examining magistrate; that thus the independence of this magistrate is not affected by the procedure which only makes it possible to guarantee the necessary diligence in the investigation of the case. instruction, or take charge of the procedure itself; that, in the event that the judgment designates the competent authority to carry out the information, it relates only to a measure of judicial administration which does not call into question any of the decisions taken by the examining magistrate; that thus the independence of this magistrate is not affected by the procedure which only makes it possible to guarantee the necessary diligence in the investigation of the case. instruction, or take charge of the procedure itself; that, in the event that the judgment designates the competent authority to carry out the information, it relates only to a measure of judicial administration which does not call into question any of the decisions taken by the examining magistrate; that thus the independence of this magistrate is not affected by the procedure which only makes it possible to guarantee the necessary diligence in the investigation of the case.
Considering that the judge in charge of the investigation following the implementation of the procedure provided for by articles 196-1 and 196-2 of the code of criminal procedure, whether it is the investigating judge who continues its information, of the one who will have been appointed by the indictment chamber or of the member of this chamber who will have been instructed by it to prepare the case, decides under the same conditions and under the control of the same means of appeal as during preparatory instruction; that this rule results especially from article 196-3 with regard to the case where the indictment chamber takes up the procedure, the last paragraph of this article specifying in particular that the accused, the civil party and their counsel enjoy all the rights and guarantees provided for in the provisions relating to the preparatory investigation; that thus the procedure criticized does not allow any infringement of the rights of the defense and in particular does not in any way modify the conditions in which the control of the investigation in criminal matters is exercised by the double degree rule applicable to judicial decisions; that, therefore, without there being any need to rule on the possible constitutional value of the latter principle, it should be declared that the said procedure is not contrary to the Constitution. thus the procedure criticized does not allow any infringement of the rights of the defense and in particular does not modify in any way the conditions under which the control of the investigation in criminal matters is exercised by the double degree rule applicable to judicial decisions; that, therefore, without there being any need to rule on the possible constitutional value of the latter principle, it should be declared that the said procedure is not contrary to the Constitution. thus the procedure criticized does not allow any infringement of the rights of the defense and in particular does not modify in any way the conditions under which the control of the investigation in criminal matters is exercised by the double degree rule applicable to judicial decisions; that, therefore, without there being any need to rule on the possible constitutional value of the latter principle, it should be declared that the said procedure is not contrary to the Constitution.
With regard to article 66 of the law relating to the discipline of lawyers and the police of the hearing:
Considering that, according to the authors of one of the referrals, article 66 of the law submitted to the examination of the Constitutional Council would be contrary to the rights of the defense; that indeed, it would allow the president of any jurisdiction of the judicial order to remove discretionary from the bar, during two days, in the name of the serenity of the debates, a lawyer; that, while the chairman is allowed to appoint a lawyer ex officio to replace the lawyer excluded from the hearing, this guarantee cannot be regarded as sufficient, such a system being able to have the effect of entrusting the defense to a lawyer ignorant of the trial; that in addition and above all, by not specifying whether the proceedings are suspended, by not indicating the conditions for their continuation, the first paragraph of the
Considering that article 66 of the law submitted to the consideration of the Constitutional Council has as its first object the abrogation of the old provisions of the law of December 31, 1971 reforming certain judicial and legal professions, as well as those of the law of January 15, 1963 relating to the State Security Court and those of the Code of Military Justice which entrusted to the jurisdiction before which a lawyer failed to fulfill his obligations the repression of these breaches by disciplinary penalties up to and including prohibition to exercise their profession and replace them with a new article 25 of the law of 31 December 1971 providing, at the initiative of the court, for disciplinary proceedings before the Bar Council; that these new provisions are not, in themselves,
Considering that article 66, paragraph II, taking into account the abolition of the disciplinary power of the jurisdiction over the lawyer, inserts, on the other hand, in the law of December 31, 1971 mentioned above an article 25-1 thus conceived : When the attitude of a lawyer compromises the serenity of the debates, the president may, by virtue of his powers of policing the hearing, the president of the council of the Bar of the court of the court or his representative heard, decide to ‘remove this lawyer from the courtroom for a period which may not exceed two days. It is up to the president of the council of the Bar Order of the court or his representative to decide, if necessary, on the extension of this measure until the competent Bar Council has ruled on the decision. ‘
Considering that it results both from the terms and from the preparatory work of this provision that it allows the president of a court to exclude a lawyer from the courtroom by virtue of his police powers of the hearing and to preserve the serenity of the debates without even, however, that the lawyer necessarily breached the obligations imposed on him by his oath and falls under the disciplinary proceedings referred to in article 25 of the law of December 31, 1971 as it results of paragraph 1 of article 66 of the law submitted to the consideration of the Constitutional Council.
Considering that, even if the measure that the president, under the terms of the aforementioned article 25-1, could take with regard to a lawyer whose attitude would compromise the serenity of the debates, had the character of a simple measure of the hearing and did not bear that of a disciplinary sanction, the fact remains that this measure, which could intervene when the lawyer has not failed in any of the obligations imposed on him by his oath and when ‘he therefore fulfilled his role of defender, would be contrary, both in the person of the lawyer and that of the litigant, to the rights of the defense which result from the fundamental principles recognized by the laws of the Republic; that, therefore, paragraph II of Article 66 of the law subject to
Considering that the other provisions of article 66 of the law submitted to the examination of the Constitutional Council are inseparable from the provisions of paragraph II contrary to the Constitution; that, under these conditions, article 66 of the law can only be declared, in its entirety, contrary to the Constitution;
With regard to articles 76 to 78 of the law relating to identity checks:
Considering that, according to the authors of the referrals, the provisions of articles 76, 77 and 78 of the law submitted to the examination of the Constitutional Council would seriously undermine, by their very principle and by the modalities of its implementation, the liberty to come and go and to individual freedom; that they would, on the other hand, be contrary to the separation of powers in that they entrust to the judicial police, with the prerogatives available to it, operations to prevent breaches of public order normally falling within the scope of the administrative police who cannot have such powers, in particular with regard to the detention of persons; that, finally, the very nature of the transactions authorized by the provisions criticized, as well as the
Considering that paragraph 1 of article 76 of the law reads as follows: Judicial police officers and, on the order and under the responsibility of the latter, judicial police officers and deputy judicial police officers referred to in Articles 20 and 21 (1 °) of the Code of Criminal Procedure, may, in the event of judicial investigations or to prevent an attack on public order, in particular an attack on the security of persons and property, invite any person to justify his identity. No one can refuse to comply with this invitation. Identity can be justified by any means.
Considering that the search for the perpetrators of offenses and the prevention of attacks on public order, in particular attacks on the security of persons and property, are necessary for the implementation of principles and rights having constitutional value; that the embarrassment that the application of the provisions of the aforementioned paragraph 1 can bring to the freedom to come and go is not excessive, since the people arrested can prove their identity by any means and that, as the text requires it, the conditions relating to the legality, the reality and the relevance of the reasons justifying the operation are, in fact, met;
Considering that paragraphs 2 to 5 of article 76 are worded as follows: When a person does not prove his identity on the spot, the officers and agents referred to in the preceding paragraph may, if necessary, take him to a local police to allow him to provide any evidence of this identity. Upon arrival at the police station, this person is presented without delay to a judicial police officer and automatically placed in a position to immediately notify his family or any person likely to confirm his identity or to allow him to do so. These operations must be carried out with courtesy. When a person is unwilling or unable to provide any evidence to justify their identity, the the judicial police officer before whom it has been presented may proceed with the operations necessary to establish its identity. Anyone thus taken to a police station may only be detained for the time strictly necessary to verify their identity, without this period exceeding six hours. This period starts from the invitation mentioned in the first paragraph above. The person concerned may request at any time that the public prosecutor be informed immediately of the measure to which he is subject. This magistrate can decide that it will be put to an end. The person concerned is informed of his rights as soon as he arrives at the police station. Anyone thus taken to a police station may only be detained for the time strictly necessary to verify their identity, without this period exceeding six hours. This period starts from the invitation mentioned in the first paragraph above. The person concerned may request at any time that the public prosecutor be informed immediately of the measure to which he is subject. This magistrate can decide that it will be put to an end. The person concerned is informed of his rights as soon as he arrives at the police station. Anyone thus taken to a police station may only be detained for the time strictly necessary to verify their identity, without this period exceeding six hours. This period starts from the invitation mentioned in the first paragraph above. The person concerned may request at any time that the public prosecutor be informed immediately of the measure to which he is subject. This magistrate can decide that it will be put to an end. The person concerned is informed of his rights as soon as he arrives at the police station. interested party may request at any time that the public prosecutor be informed immediately of the measure to which he is subject. This magistrate can decide that it will be put to an end. The person concerned is informed of his rights as soon as he arrives at the police station. interested party may request at any time that the public prosecutor be informed immediately of the measure to which he is subject. This magistrate can decide that it will be put to an end. The person concerned is informed of his rights as soon as he arrives at the police station.
Considering that the application of the aforementioned provisions remains limited by the rule according to which persons invited to prove their identity may comply with this invitation on the spot by an appropriate means of their choice and that they must not be taken to a police station that in case of necessity: that the exact respect of these prescriptions as regards the immediate presentation to a judicial police officer of the person taken to the police station, the possibility for him to inform his family or any person likely to confirm her identity or to allow her to do so, the right for her to seize the public prosecutor, the obligation to retain her only for the time necessary to verify her identity, the limitation to six hours,from the initial invitation to prove their identity, from the period of time during which they may be retained, limit the constraints imposed on the person who was unable or unwilling to prove their identity on the spot. what is necessary for the safeguard of the purposes of general interest having constitutional value and the pursuit of which motivates the verification of identity;
That the details of this report must also be mentioned in a special register periodically submitted to the control of the public prosecutor who can, on the other hand, control at any time the regularity of the verification operations; that all of these provisions are such as to ensure the possibility for the competent authorities and courts to verify the regularity of the transactions carried out in application of Article 76.
Considering that the last paragraph of article 77 provides: In any case, the operations mentioned in article 76 may not give rise to fingerprints or photographs. The information resulting from these operations as well as those mentioned in the minutes and the register provided for in this article may not under any circumstances be stored in manual or automated files; whereas the purpose of these prohibitions is to prevent identity checks from being used for purposes other than those assigned to them by the first paragraph of Article 76;
Whereas, if article 78 punishes with correctional penalties of imprisonment and fine any person who refuses to take part in identity verification operations or who has prevented the competent officers from accomplishing their control or identity verification, these provisions do not target people who have not been able, on the spot or in the police station, to prove their identity;
Considering, therefore, that the provisions of articles 76, 77 and 78 of the law referred to the examination of the Constitutional Council are not, under the conditions of form and substance set out by these articles, contrary to the conciliation which must be between the exercise of constitutionally recognized freedoms and the needs of researching the perpetrators and preventing attacks on public order, in particular the security of persons and property, necessary, both ‘other, to the safeguard of rights of constitutional value.
Considering that, although the aforementioned Articles 76 and 77 reserve in certain cases for the judicial police missions of prevention of breaches of public order which normally fall under the administrative police, these provisions only have the effect of providing guarantees ensuring respect for individual liberty; that in fact, since, as has been said, such procedures are established by law in compliance with constitutional rules, no infringement of the principle of the separation of powers results from their submission to a regime comprising, for the persons who are the subject of it, guarantees that would not be guaranteed to them by the common law regime of the administrative police;
Considering, finally, that the legislator, in order to prevent abuses, has surrounded the procedure of control and verification of identity that it institutes with numerous precautions; that it will be up to the judicial and administrative authorities to ensure their full respect as well as to the competent courts to censor and repress, if necessary, the illegalities which would be committed and to provide, if necessary, for the reparation of their harmful consequences;
Considering, therefore, that Articles 76, 77 and 78 of the law submitted to the consideration of the Constitutional Council are not contrary to the Constitution;
On Title III (art. 81 to 100) of the law:
With regard to articles 87 to 89 relating to the constitution of civil party by registered letter:
Considering that, according to the authors of one of the referrals, the possibility for the civil party to constitute itself in certain cases by registered letter, provided for and regulated in correctional matters by articles 87 and 89 of the law submitted to the examination of the Council constitutional, without these texts having prescribed the communication to the defense of the documents on which the request of the civil party is based, would create a situation contrary to the rights of the defense;
Considering that, according to the provisions of article 421 of the code of criminal procedure, not modified by the law submitted to the examination of the Constitutional Council, the declaration of civil party can be made during the hearing and is admissible as soon as it intervenes before the requisitions of the public prosecution; that the new provisions are intended to allow the victim who intends to become a civil party to do so by registered letter without appearing at the hearing; that these provisions, intended to facilitate the exercise of the rights of the victim, do not place the accused in a situation different from that in which he would find himself by the application of article 421 and do not disregard the rights of the defense ;
Considering, moreover, that by virtue of article 460-1, as it results from article 89 of the law submitted to the examination of the Constitutional Council, the court may, if it considers it necessary, order the appearance of the civil party and, in this case, postpone the proceedings on the whole of the case or only on the civil interests to a next hearing; that thus all precautions are taken by the texts criticized to preserve the rights of the defense;
Considering, therefore, that Articles 87 and 89 of the law submitted to the consideration of the Constitutional Council are not contrary to the Constitution;
With regard to articles 92 and 94 of the law, relating to new requests from the civil party in appeal and the constitution of civil party in appeal:
Considering that, according to the authors of one of the referrals, article 92 of the law submitted to the examination of the Constitutional Council, allowing the civil party to present new requests in appeal and article 94 , by allowing the civil party to constitute itself for the first time in appeal, would disregard both with regard to the defendant and the civil party, the principle of the double degree of jurisdiction, which would have constitutional value.
Considering that, if the faculty for the victim who became a civil party in first instance to present new requests in appeal and that for the injured person to become a civil party for the first time in appeal are open only to as far as serious reasons can be invoked by the interested parties, their exercise however would necessarily generate inequalities before the justice, since, according to the attitude of the person requesting compensation, the defendants would or would not benefit from a double degree of jurisdiction with regard to civil interests.
Considering, it is true, that the complaint of unconstitutionality cannot extend to the second sentence of the fourth paragraph of Article 515 of the Code of Criminal Procedure as it would result from Article 92 of the law submitted to the examination by the Constitutional Council, sentence worded as follows: She (the civil party) can always request an increase in damages for the damage suffered since the first instance decision; that this provision, which already appears in Article 515 of the Code of Criminal Procedure, will be maintained there because, by virtue of this decision, Article 92 of the law submitted to the examination of the Constitutional Council, whose purpose of giving a new wording to the fourth paragraph of article 515 of the code of criminal procedure no.
Considering, therefore, that Articles 92 and 94 of the law submitted to the consideration of the Constitutional Council are contrary to the Constitution:
With regard to the second paragraph of article 100:
Considering that the second paragraph of article 100 of the law submitted to the consideration of the Constitutional Council reads as follows:
The provisions of articles 265 to 268, 305, 306, 309 to 312, 381 to 385, 400 (paragraphs 1 and 2), 434 to 437 new of the penal code, and article 16 of the law of July 15, 1845 on the railway police are not applicable to offenses which gave rise to a final judgment on the merits before the entry into force of this law.
Considering that these provisions tend to limit the effects of the rule according to which the new criminal law must, when it imposes less severe penalties than the old law, apply to the offenses committed before its entry into force and not having given effect. result in convictions which have the force of res judicata; that, consequently, they must be regarded as contrary to the principle formulated by article 8 of the Declaration of the rights of man and of the citizen of 1789 according to which: The law must establish only strictly and obviously necessary penalties. That in fact, the fact of not applying to the offenses committed under the empire of the old law the new, softer criminal law, amounts to allowing the judge to pronounce the penalties provided for by the old law and which, according to the even the legislator’s judgment, are no longer necessary; that, consequently, the second paragraph of article 100 of the law subjected to the examination of the Constitutional Council is contrary to the Constitution;
Considering that the other provisions of the law submitted to the consideration of the Constitutional Council are not contrary to the Constitution,
Decide:
Art. 1 – Are declared contrary to the Constitution the provisions of articles 66, 92, 94 and 100 (2 ° paragraph) of the law reinforcing the security and protecting the liberty of the persons.
Art. 2 – The other provisions of this law are not contrary to the Constitution.
Art. 3 – This decision will be published in the Official Journal of the French Republic.
