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Decision no. 2011-133 QPC of 24 June 2011

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Mr Kiril Z. [Enforcement of arrest warrant and a warrant to bring a person before a judge]

On 1 April 2011 the Constitutional Council, pursuant to Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality from the Cour de Cassation (criminal chamber, decree no. 2041 of 29 March 2011) raised by Mr Kiril Z., regarding the compatibility of Articles 130 and 130-1 and of the fourth subparagraph of Article 133 of the Code of Criminal Procedure with the rights and freedoms guaranteed by the Constitution.

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 Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to law no. 2011392 of 14 April 2001 on police custody;

Having regard to the observations on behalf of the applicant by Loïc Auffret Esq., Attorney at the Lyon Bar, registered on 22 April and 6 May 2011;

Having regard to the observations of the Prime Minister, registered on 26 April 2011;

Having regard to the documents produced and appended to the case files;

Having heard Esq. Auffret on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 7 June 2011;

Having heard the Rapporteur;

1. Considering that Articles 130 and 1301 of the Code of Criminal Procedure concern the procedures for enforcing a warrant to bring a person before a judge; that pursuant to Article 130: "Where a transfer is required under the conditions set out by articles 128 and 129, the person must be brought before the investigating judge who issued the warrant within four days of the notification of the warrant".

"This time limit is however extended to six days in the event of a transfer from an overseas Department to another Department or from continental France to an overseas Department";

2. Considering that pursuant to Article 1301 of the same Code: "Where the time limits imposed by articles 127 and 130 are not complied with, the person is released upon the order of the investigating judge in charge of the case, unless his transfer was delayed by insuperable circumstances";

3. Considering that Article 133 concerns the procedures for enforcing an arrest warrant; that pursuant to subparagraph four: "Where a transfer must be made, the person is brought to the remand prison mentioned in the warrant within the time limits set out in article 130. The provisions of article 130-1 are applicable";

4. Considering that according to the applicant, these provisions make it possible to deprive a person who has been arrested or detained of his freedom by virtue of an arrest warrant or a warrant to bring a person before a judge for four days without the intervention of a judge from the court before which the interested party would be able to present arguments in his defence; that they violate both Article 2 of the 1789 Declaration of the Rights of Man and the Citizen, according to which security is a natural and inderogable right of man, and Article 66 of the Constitution which provides that "No person shall be arbitrarily detained.

The Judicial Authority, guardian of individual freedom, shall ensure compliance with this principle in the conditions laid down by statute"; that consequently, he asks the Constitutional Council to rule these provisions unconstitutional as in force prior to the aforementioned Law of 14 April 2011 and, in the alternative, as in force after that Law;

ON THE PROCEDURE:

5. Considering, on the one hand, that when it has received an application for a priority preliminary ruling on the issue of constitutionality, it is not for the Constitutional Council to call into question the decision according to which the Conseil d'État or the Cour de cassation ruled pursuant to Article 235 or the aforementioned Ordinance of 7 November 1958 whether or not a provision is applicable to a dispute or to the procedure, or whether or not it lies at the base of the proceedings;

6. Considering on the other hand that although the provisions were amended by the aforementioned Law of 14 April 2011 after the Constitutional Council became seised of the matter, this amendment does not apply to past proceedings; that it has no impact on the examination by the Constitutional Council of the provisions referred;

7. Considering that, accordingly, it is for the Constitutional Council to rule only on the compatibility with the rights and freedoms guaranteed under the Constitution of the contested provisions of the Code of Criminal Procedure as in force prior to the enactment of the aforementioned Law of 14 April 2011;

ON THE CONSTITUTIONALITY OF THE CONTESTED PROVISIONS:

8. Considering that pursuant to Article 34 of the Constitution, it is for the law to determine the rules of criminal procedure; that the legislator is obliged by this provision to determine the scope of the criminal law; that, with regard to criminal procedure, this requirement demands in particular that unnecessary rigour be avoided when attempting to find the authors of offences; that it is moreover for the legislator to ensure a reconciliation between on the one hand the prevention of breaches of public order and the prosecution of offenders, both necessary in order to safeguard rights and principles with constitutional status, and on the other hand the exercise of the freedoms guaranteed under the Constitution; that these include the individual freedom that Article 66 places under the protection of the Judicial Authority;

9. Considering that, according to Article 122 of the Code of Criminal Procedure, a warrant to bring a person before a judge is an order issued by the judge to the law enforcement authorities to bring before it immediately the person against which it is issued; that, according to the same Article, an arrest warrant is an order issued to the law enforcement authorities to attempt to find the person against which it is issued and to bring him before the judge that issued the warrant after having taken him, depending on the circumstances, to the remand prison specified in the warrant where he is to be received and detained; that these warrants may be issued by the investigating judge in respect of a person against whom there are serious or corroborated indications establishing a plausible case that he participated in the commission of an offence as an author or accomplice; that it follows from Articles 126 and 133 that a person arrested under the terms of a warrant to bring him before a judge or an arrest warrant cannot be detained for more than twenty four hours and must be brought before the investigating judge or, where this is not possible, in cases involving an arrest warrant, before the President of the Court or the judge designated to hear his case in order for him to be questioned;

10. Considering however that the second subparagraph of Article 133 provides that, when a person has been arrested in accordance with an arrest warrant more than two hundred kilometres away from the court of the investigating judge that issued the warrant, he shall be brought before Public Prosecutor of the place of arrest who shall receive his statements after having warned him that he has the right to remain silent; that pursuant to Article 127, the same applies for a person sought under the terms of a warrant to be brought before a judge, where moreover it is not possible to bring him before the judge that issued the warrant within twenty four hours; that it follows from Article 130 that, in these two cases, the person arrested must be brought before the investigating judge that issued the warrant within four days of its notification; that this time limit is extended to six days in cases involving transfer to or from an overseas department;

11. Considering, on the one hand, that the deprivation of freedom for four or six days thus provided for is permitted in cases where the material circumstances objectively and precisely specified by the Law obtain and which mean that it is impossible for the person arrested to be brought immediately before the judge that ordered the arrest; that in the event that these time limits are overrun, other than in "insuperable circumstances", the person will be freed on the order of the investigating judge seised of the case; that, accordingly, the deprivation of freedom concerned is necessary in order to guarantee the presentation of the person arrested before that judge; that its duration is strictly framed and is proportionate with the goal pursued;

12. Considering on the other hand that the Public Prosecutor of the place of arrest shall inform "without delay" the investigating judge who ordered the arrest, attend to the enforcement of the warrant and report on his actions to the judge that issued the warrant; that accordingly, the warrant is ordered by the investigating judge and enforced under his control; that he may at any time order the release of that person, in particular in view of the statements that he has given to the Public Prosecutor; that, accordingly, an investigating judge who has issued a warrant to bring a person before the judge or an arrest warrant retains authority over its enforcement for the full period of time necessary in order to bring the person arrested before him; that, accordingly, the complaint alleging that the deprivation of liberty necessary in order to enforce the warrant is not subject to control by a judge must be rejected;

13. Considering however that whilst Article 131 provides that the arrest warrant can only be issued against a person at large or resident outwith the territory of the Republic in respect of conduct punishable by a term of correctional imprisonment or a more serious penalty, the provisions governing the warrant to bring a person before a judge do not specify that condition; that the reconciliation between on the one hand the prevention of breaches of public order and the search for the authors of offences, and on the other hand the exercise of the freedoms guaranteed under the constitution cannot be regarded as balanced if the deprivation of freedom of four or six days provided for under Article 130 could be implemented, under the terms of a warrant to bring a person before a judge, against a person who is not liable for a term of correctional imprisonment or a more serious penalty;

14. Considering that it follows from the above that, subject to the reservation set out in the previous recital, the contested provisions do not violate either Article 66 of the Constitution or Article 2 of the 1789 Declaration;

15. Considering that the contested provisions are not contrary to any other right or freedom guaranteed by the Constitution;

HELD:

Article 1. Subject to the reservation contained in recital 13, Articles 130 and 1301 of the Code of Criminal Procedure and the fourth subparagraph of Article 133 are constitutional.

Article 2 This decision shall be published in the Journal officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session on 23 June 2011, sat on by: Mr JeanLouis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Ms Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 24 June 2011.