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Decision no. 2014-693 DC of 25 March 2014

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Law on geolocation

In the conditions provided for by Article 61-2 of the Constitution, the Constitutional Council was seized of an application relating to the Law on geolocation on 27 February 2014 by Mr Bruno LE ROUX, Mr Avi ASSOULY, Mr Alexis BACHELAY, Mr Jean-Paul BACQUET, Mr Dominique BAERT, Mr Gérard BAPT, Mr Serge BARDY, Mr Christian BATAILLE, Ms Kheria BOUZIANE, Mr Jean-Louis BRICOUT, Mr Jean-Jacques BRIDEY, Mr Alain CALMETTE, Ms Colette CAPDEVIELLE, Mr Christophe CARESCHE, Ms Fanélie CARREY-CONTE, Mr Christophe CASTANER, Ms Marie-Anne CHAPDELAINE, Mr Alain CLAEYS, Ms Marie-Françoise CLERGEAU, Ms Carole DELGA, Ms Françoise DESCAMPS-CROSNIER, Mr Jean-Pierre DUFAU, Mr William DUMAS, Ms Laurence DUMONT, Mr Olivier DUSSOPT, Mr Christian ECKERT, Mr Matthias FEKL, Mr Jean Pierre FOUGERAT, Ms Michèle FOURNIER-ARMAND, Mr Christian FRANQUEVILLE, Mr Jean-Marc GERMAIN, Mr Jean-Patrick GILLE, Mr Marc GOUA, Ms Chantal GUITTET, Mr Régis JUANICO, Ms Chaynesse KHIROUNI, Mr Jean-Marie LE GUEN, Ms Annie LE HOUEROU, Mr Michel LEFAIT, Ms Martine LIGNIÈRES-CASSOU, Mr François LONCLE, Mr Jean Philippe MALLÉ, Ms Jacqueline MAQUET, Mr Jean-René MARSAC, Ms Sandrine MAZETIER, Mr Michel MÉNARD, Mr Kléber MESQUIDA, Mr Pierre-Alain MUET, Mr Philippe NAUCHE, Ms Ségolène NEUVILLE, Mr Philippe PLISSON, Ms Émilienne POUMIROL, Mr Michel POUZOL, Mr Denys ROBILIARD, Ms Odile SAUGUES, Mr Gilbert SAUVAN, Mr Christophe SIRUGUE, Ms Julie SOMMARUGA, Mr Gérard TERRIER, Ms Sylvie TOLMONT, Mr Jean-Louis TOURAINE and Mr Jean-Jacques URVOAS, Members of Parliament.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Basic Law on the Constitutional Council;

Having regard to the Code of Criminal Procedure;

Having regard to the observations of the Government, registered on 18 March 2014;

Having heard the Rapporteur;

1. Considering that the applicant Members of Parliament have referred to the Constitutional Council the Law on geolocation; that they ask the Constitutional Council to rule on the compatibility with defence rights further to Article 230-40 of the Code of Criminal Procedure as resulting from Article 1;

- ARTICLE 1:

2. Considering that Article 1 of the Law supplements section IV of book I of the Code of Criminal Procedure with a chapter V entitled "Geolocation", including Articles 230-32 to 230-44;

3. Considering that Article 230-32 defines geolocation as "any technical instrument intended to locate in real time, throughout the entire national territory, a person without their knowledge, a vehicle or any other object without the consent of its owner or possessor"; that Articles 230-32 and 230-33 define the situations in which the recourse to this surveillance technique may be authorised and the manner and duration of such authorisation;

4. Considering that Article 230-34 defines the conditions under which the public prosecutor, an investigating judge or the custodial judge, depending upon the type of investigation or inquiry and the criminal status of the acts, may authorise entry into certain private premises or into a vehicle for the purpose of deploying or withdrawing the technical instrument enabling geolocation, if necessary owing to the requirements of the investigation or inquiry;

5. Considering that Article 230-35 provides that, in urgent cases where there is an imminent risk of loss of evidence or serious harm to persons or property, the geolocation operations may be implemented or ordered by an officer from the investigating police, provided that it give immediate notice thereof to the public prosecutor or the investigating judge, who may reverse the order;

6. Considering that Articles 230-38 and 230-39 provide that the officer from the investigating police shall draw up a report of the operations involving the placing of the technical geolocation device, the recording of location data and the data recorded that are useful in order to establish a true version of events; that Article 230-43 provides for the destruction of location data recordings upon expiry of the time barring period for public action;

7. Considering that Articles 230-40 to 230-42 stipulate the terms under which the custodial judge may authorise the exclusion from the inquiry file of certain information relating to the installation or withdrawal of the technical geolocation device or the recording of location data or any other information enabling any person who contributed to the installation or withdrawal of the technical device to be identified;

8. Considering that Article 230-44 provides that the provisions of chapter V shall not apply where the geolocation operations concern the location of an electronic communications terminal, a vehicle or any other object the rightful owner or possessor of which is the victim of the misdemeanour to which the investigation or inquiry or missing person relates, provided that these operations have the goal of relocating the victim, the object which was stolen from it or the missing person;

The implementation of geolocation operations:

9. Considering that pursuant to Article 34 of the Constitution, the legislator is under an obligation to specify the scope of criminal law; that, in relation to criminal procedure, this requirement demands in particular that it avoid unnecessary rigour in the search for the perpetrators of misdemeanours;

10. Considering that it is for the legislator to ensure, on the one hand, a reconciliation between the prevention of breaches of public order and the search for the perpetrators of misdemeanours, both of which are necessary in order to safeguard rights and principles of constitutional standing, and on the other hand the exercise of the rights and freedoms guaranteed under the Constitution; that these include the respect for freedom of movement, further to Article 4 of the 1789 Declaration of the Rights of Man and the Citizen, and the right to privacy, dwelling inviolability and the secrecy of private correspondence, which are protected by Article 2;

11. Considering that according to Article 66 of the Constitution, the investigating police must be placed under the direction and control of judicial authorities;

12. Considering that, whilst the legislator may make provision for special investigative measures with a view to ascertain crimes and major offences of a particular seriousness and complexity, gather evidence and search for the perpetrators, this is subject firstly to the restrictions thereby imposed on rights guaranteed under constitutional law being proportionate with the seriousness and complexity of the misdemeanours committed and not entailing any unjustified discrimination, and secondly to these measures being carried out in compliance with the prerogatives of the judicial authority, which is particularly in charge of ensuring that their implementation is necessary in order to establish the truth;

- The right to privacy:

13. Considering that geolocation is a measure used by the investigating police involving the surveillance of a person using technical devices by following, in real time, the geographical location of a vehicle that this person is supposedly using or of any other object, including in particular a telephone, that it is supposedly holding; that the deployment of this process does not imply any coercion of the person affected or any infringement to its physical integrity, seizure, interception of correspondence or a video or audio recording; that the privacy violation resulting from the deployment of this device consists in the continuous real time surveillance of the location of a person, the following of its movements in any public or private place and the recording and processing of the data thereby obtained;

14. Considering that the recourse to geolocation may only occur where it is necessary owing to the requirements of the investigation or inquiry concerning a crime or major offence punished by a term of imprisonment of at least three years as regards offences against individuals, aiding and abetting or complicity in acts of terrorism or escapes or a term of imprisonment of at least five years as regards any other offence or investigations or inquiries into the cause of death, the reason for the disappearance of a person or the search for a fugitive;

15. Considering that the recourse to geolocation is placed under the direction and control of judicial authorities; that, in the cases provided for under paragraph 1 of Article 230-33, the public prosecutor may only grant authorisation for a maximum period of 15 consecutive days; that upon expiry of this time limit, it may be authorised by the custodial judge for a maximum period of one month, which may be renewed; that, in the cases provided for under paragraph 2 of the same Article, the investigating judge may authorise the measure for a maximum period of four months, which may be renewed; that where in urgent cases it is deployed or required by an official from the investigating police, the public prosecutor of the investigating judge shall be immediately informed, and may reverse the order;

- Dwelling inviolability:

16. Considering that, where the deployment or withdrawal of a technical device enabling geolocation requires entry into a private location during daytime or night hours, this must be authorised in writing, as the case may be, by the public prosecutor, the investigating judge or the custodial judge, having regard to the seriousness and complexity of the facts and the requirements or the investigation or inquiry; that in urgent cases defined under Article 230-35, the operation may be ordered by an officer of the investigating police, provided that immediate notice be given to the magistrate, who shall have twenty-four hours to order the continuation of the operations in writing; that, if it is necessary to enter a private residence, the operation may not under any circumstances be ordered without the prior approval of the competent judge, which may be granted by any means; that entry into private premises used for storage or into a vehicle on the public highway or within such locations is only possible if the operation is necessary for the requirements of an investigation or inquiry relating to a crime or major offence against an individual or for particular offences punished by a term of imprisonment of at least three years; that, if it relates to any other private location, entry is only possible if the investigation or inquiry relates to a crime or major offence punished by a term of imprisonment of at least five years or in the event of a procedure or investigation into the case of death, the reason for disappearance or the search for a fugitive; that the fifth subparagraph of Article 230-34 prohibits the deployment of a technical geolocation device in any of the locations referred to under Articles 56-1 to 56-4 of the Code of Criminal Procedure or in the office or home or any of the persons referred to under Article 100-7;

17. Considering that if follows from all of the above that the legislator has accompanied the implementation of geolocation with measures of such a nature as to guarantee that, when subject to authorisation and control by the judiciary, the restrictions imposed on rights guaranteed under the Constitution are necessary in order to establish the truth and are not disproportionate having regard to the seriousness and complexity of the offences committed; that, in enacting these provisions, the legislator reconciled the rights and freedoms at issue in a balanced manner;

The case file:

18. Considering that pursuant to Article 16 of the 1789 Declaration: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; that the right of persons who are affected to obtain effective judicial redress and the requirement to respect the rights of the defence, which implies in particular the existence of a fair and equitable procedure guaranteeing the rights of the parties, are guaranteed by this provision;

19. Considering that the official from the investigating police or the agent from the official police acting under the responsibility of the former must draw up a report for each of the operations involving the deployment of geolocation devices and the recording of location data, which must mention the date and time at which the operation commenced and the date and time at which it ended; that it must describe or record in a report, which is included in the case file, the data recorded that may be useful for establishing the truth; that however, the provisions of Article 230-40 authorise the exclusion from the inquiry file of information relating to the date, time and location at which the geolocation device was installed or withdrawn, along with the recording of location data and information enabling any person who contributed to the installation or withdrawal of the technical device to be identified, which must by contrast be included in a report, which is placed on a distinct procedural case file to which the parties do not have access, and which must also contain the request of the investigating judge seeking the implementation of this procedure; that this information must be included in a numbered and initialled register established for this purpose at the regional court;

- Articles 230-40 and 230-41:

20. Considering in the first place that pursuant to Article 230-40, this possibility is only available in order to provide information to the courts concerning crimes and major offences relating to organised crime or delinquency falling within the scope of Article 706-73 of the Code of Criminal Procedure; that it is not permitted where, first, "knowledge of such information is liable to seriously endanger the life or physical integrity or a person, members of its family or its relations" and, secondly, where such knowledge "is neither useful in order to establish the truth nor indispensable in the exercise of defence rights"; that authorisation to use such measures may be granted by a ruling supported by reasons by the custodial judge, acting upon a request supported by reasons given by the investigating judge;

21. Considering secondly that, if the procedure provided for under Article 230-40 is implemented, the written ruling of the judge authorising the geolocation pursuant to Article 230-33, the ruling of the judge authorising, as the case may be, entry into a private location pursuant to Article 230-34, the ruling by the custodial judge authorising recourse to the procedure provided for under Article 230-40 as well as the recording of location data, provided that it does not enable any person who contributed to the installation or withdrawal of the technical device to be identified, must nonetheless be placed on record;

22. Considering, thirdly, that Article 230-41 provides that any person questioned or witness heard may challenge recourse to the procedure provided for under Article 230-40 before the president of the investigation chamber; that this judge may annul the geolocation measures if it considers that the geolocation operations have not been carried out in a proper manner, that the conditions laid down by Article 230-40 have not been met or that the information that has not been placed on the case file is indispensable for the exercise of defence rights; that it may also order that such information be placed on the case file if it considers that its disclosure is not or is no longer liable to seriously endanger the life or physical integrity or a person, members of its family or its relations;

23. Considering however that the period of ten days during which the person questioned or witness heard may dispute recourse to the procedure provided for under Article 230-40 commences "from the date on which it was informed of the content of the geolocation operations carried out within the framework provided for" under this Article; that having regard to the complexity of investigation in the area of organised crime and delinquency, these provisions cannot be interpreted as enabling the ten-day period to commence before the ruling issued by the custodial judge adopted pursuant to Article 230-40 has been formally notified to the person questioned or the witness heard without violating defence rights; that moreover, defence rights would also be violated if the investigation chamber were also unable to exercise power of control and issue rulings provided for under Article 230-41 of the said Code when seized, in the conditions provided for under Articles 170 et seq of the Code of Criminal Procedure, with an application seeking the annulment of authorisations to install technical geolocation devices and their recording;

24. Considering that, subject to the reservation stated in the previous recital, the provisions of Articles 230-40 and 230-41 do not violate Article 16 of the 1789 Declaration;

- Article 230-42:

25. Considering that the principle of the right to make representations and respect for defence rights imply in particular that a person prosecuted before a criminal court has been enabled, either personally or through its lawyer, to challenge the terms under which the evidence on which its prosecution is based has been collected;

26. Considering that Article 230-42 provides that no conviction may be imposed "on the sole basis" of information collected under the terms provided for further to Article 230-40 unless the request and the report referred to in the last subparagraph of this Article have been placed on the case file pursuant to Article 230-41; that in thereby enabling a conviction to be issued on the basis of evidence where the defendant has not been able to challenge the conditions in which it has been collected, these dispositions violate the constitutional requirements resulting from Article 16 of the 1789 Declaration; that accordingly, in Article 230-42 the word "only" must be ruled unconstitutional; that consequently, unless the request and the report mentioned in the last subparagraph of Article 230-40 have been placed on the case file pursuant to Article 230-41, it shall be for the examining authority to order that the information collected in the conditions provided for under Article 230-40 be withdrawn from the information file before the trial court is seized; that, subject to this reservation, the remainder of Article 230-42 does not violate Article 16 of the 1789 Declaration;

27. Considering that it follows from all of the above that, subject to the reservations stated in recitals 23 to 26, the remainder of Article 1 of the Law, which does not violate any other requirement of constitutional law, must be ruled constitutional;

- ARTICLE 3:

28. Considering that pursuant to the second phrase of the first subparagraph of Article 45 of the Constitution: "Without prejudice to the application of Articles 40 and 41, all amendments which have a link, even an indirect one, with the text that was tabled or transmitted, shall be admissible on first reading";

29. Considering that Article 3 amends Article 706-161 of the Code of Criminal Procedure, altering the powers of the Agency for the management and recovery of seized and confiscated assets; that this Article, which was introduced by amendment during the first reading in the Senate, has no link with the provisions included in the draft bill; that accordingly, it was adopted in an unconstitutional manner;

30. Considering that there are no grounds for the Constitutional Council to raise any other question of compatibility with the Constitution ex officio,

HELD:

Article 1.- The following provisions of the Law on geolocation are unconstitutional:

- in Article 1, the word "only" appearing in Article 230-42 of the Code of Criminal Procedure;

- Article 3.

Article 2.- Subject to the reservations stated in recitals 23 and 26, the remainder of Article 1 of the Law is constitutional.

Article 3.- This ruling shall be published in the Journal Officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 25 March 2014, sat on by: Mr Jean-Louis DEBRÉ, President, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC and Ms Nicole MAESTRACCI.