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Decision no. 2011-135/140 QPC of 09 June 2011

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Mr Abdellatif B. and another [Official sectioning]

On 07 April 2011 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 346207 of 06 April 2011) on behalf of Mr Abdellatif B., raising the conformity of Articles L. 3213-1 and L. 3213-4 of the Public Health Code with the rights and freedoms guaranteed by the Constitution. It also received an application on 8 April 2011 for a priority preliminary ruling on the issue of constitutionality raised by the Cour de cassation (first civil chamber, decree no. 481 of 8 April 2011), in the same conditions, on behalf of Mr Jean-Louis C. raising the conformity of Article L. 3213-4 of the Public Health Code 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 organic law on the Constitutional Council;

Having regard to the Public Health Code;

Having regard to decision no. 2010-71 QPC of 26 November 2010;

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 the observations filed on behalf of Mr B. by the SELARL Mayet et Perrault, Attorneys at the Versailles Bar, registered on 27 April 2011;

Having regard to the observations made on behalf of Mr C. by Pierre Ricard Esq., Attorney to the Conseil d'État and the Cour de Cassation, registered on 29 April 2011;

Having regard to the observations of the Prime Minister, registered on 29 April 2011;

Having regard to the observations in intervention on behalf of the Association "Groupe information asiles" by Corinne Vaillant Esq., Attorney at the Paris bar, registered on 13 May 2011;

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

Having heard Raphaël Mayet Esq. for Mr B., Esq. Ricard for Mr C., Esq. Vaillant for the Association "Groupe information asiles" and Mr Xavier Pottier, appointed by the Prime Minister at the public hearing of 24 May 2011;

Having heard the Rapporteur;

1. Considering that it is appropriate to join the two applications for priority preliminary rulings on the issue of constitutionality in order to rule by a single decision;

2. Considering that Article L. 3213-1 of the Public Health Code provides: "In Paris, the chief of police and, in the Departments, the representatives of the State may issue an order, based on a medical certificate containing reasons, stipulating that a person whose mental disturbance requires treatment and who jeopardise the safety of other persons or cause serious breaches of public order be officially sectioned in one of the establishments mentioned under Article L. 3222-1. The medical certificate containing reasons may only be issued by a psychiatrist practising in the establishment that is to receive the patient. The orders of the chief of police or the representatives of the State must contain reasons and specify in detail the circumstances that rendered sectioning necessary.

"During the twenty four hours following admission, the director of the receiving establishment shall transmit a medical certificate issued by a psychiatrist from the establishment to the representative of the State in the Department and the committee referred to under Article L. 3222-5.

"These orders and any other orders made pursuant to Articles L. 3213-2, and L. 3213-4 to L. 3213-7 and the releases made pursuant to Article L. 3211-11 shall be included in a register similar to that required under Article L. 3212-11, all of the provisions of which are applicable to persons officially sectioned";

3. Considering that pursuant to Article L. 3213-4 of that Code: "Having obtained the reasoned opinion of a psychiatrist, the representative of the State in the Department may order that the official sectioning be continued for a further term of three months during the three days prior to the expiry of the first month of sectioning. After this term, the sectioning may be continued by the representative of the State in the Department for maximum periods of six months, which may be renewed according to the same procedures.

"If no decision is made by the representative of the State at the end of each period provided for under the previous paragraph, the person shall be released.

"Without prejudice to the foregoing provisions, the representative of the State in the Department may put an end to the sectioning at any time, having obtained the opinion of a psychiatrist or acting on a proposal by the committee mentioned under Article L. 3222-5";

4. Considering that, according to the applicants, the official sectioning procedure fails to respect the individual freedom guaranteed under Article 66 of the Constitution;

5. Considering that Article 66 of the Constitution provides that: “No one shall be arbitrarily detained. - The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle in the conditions laid down by statute"; that when exercising its powers, the legislator may determine the procedures governing the intervention by the judicial authorities that differ in line with the nature and scope of the measures affecting individual freedom that it intends to enact;

6. Considering that pursuant to the eleventh recital of the Preamble to the Constitution of 1946, the Nation is to guarantee to all the right to protection of health; that Article 34 of the Constitution provides that statutes shall determine the rules concerning the fundamental guarantees granted to citizens for the exercise of their civil liberties; that the legislator is free at any time, when ruling on matters within its competence, to adopt new provisions that are in its view appropriate, and to amend previous legislation or repeal it and, depending on the circumstances, replace it with other provisions, provided that when exercising this power, it does not deprive these constitutional requirements of legal guarantees;

7. Considering that the sectioning of a person suffering from a mental illness without his consent must respect the principle enshrined in Article 66 of the Constitution whereby individual freedom may not be restricted to an unnecessary extent; that it is for the legislator to ensure that a balance is struck between, on the one hand, the protection of the health of persons suffering from mental illness and the prevention of breaches of public order 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 freedom of movement and the respect for private life, protected under Articles 2 and 4 of the 1789 Declaration of the Rights of Man and the Citizen, as well as the individual freedom which Article 66 of the Constitution reserves to the protection of the judicial authorities; that any restrictions imposed on the exercise of these freedoms must be adapted to, necessary for and proportionate with the objectives pursued;

- ON THE CONDITIONS FOR OFFICIAL SECTIONING:

8. Considering, in the first place, that Article L. 3213-1 of the Public Health Code provides that a person suffering from mental illness may not be officially sectioned unless his illness requires treatment and jeopardises the safety of other persons or seriously breaches public order; that these grounds may justify the implementation of a measure that restricts freedom having regard to the aforementioned constitutional requirements;

9. Considering, secondly, that the first subparagraph of this Article provides that the decision to officially section is issued by the Prefect or, in Paris, the chief of police on the basis of a medical certificate containing reasons which may only be issued by a psychiatrist practising in the establishment that is to receive the patient, and that the order must be justified and specify the circumstances that rendered sectioning necessary; that, whilst Article 66 of the Constitution requires that any restriction of freedom be reviewed by the judicial authorities, it does not require that the latter be seised in advance of all measures that restrict freedom; that, accordingly, the Prefect's jurisdiction to order official sectioning does not breach the requirements specified under Article 66 of the Constitution;

10. Considering, thirdly, that the second subparagraph of Article L. 3213-1 provides that, during the twenty four hours following admission, a medical certificate issued by a psychiatrist from the establishment shall be transmitted to the representative of the State in the Department and the departmental committee for psychiatric hospitalisation; that, if this medical certificate does not confirm that the interested party must receive treatment by sectioning, the contested provisions specify that this measure be continued without making provision for a re-examination within a short period of the circumstances of the sectioned person in order to ensure that his sectioning is necessary, unless the official sectioning order is revoked by the competent administrative authorities; that only such a re-examination can permit the measure to be upheld; that absent such a guarantee, the contested provisions do not assure that official sectioning is reserved for the cases in which it is adapted to, necessary for and proportionate with the state of the patient, as well as the safety of other persons or the maintenance of public order; that, accordingly, the second paragraph of Article L. 3213-1 of the Public Health Code violates the constitutional requirements cited above;

11. Considering that it follows that Article L. 3213-1 of the Public Health Code, from which the provisions are inseparable, must be ruled unconstitutional;

- ON THE MAINTENANCE OF OFFICIAL SECTIONING:

12. Considering that Article L. 3213-4 of the Public Health Code provides that after a period of one month, sectioning may be continued for a maximum period of three months, having obtained the reasoned opinion of a psychiatrist; that after this period, sectioning may be continued for subsequent periods of six months' duration according to the same procedures;

13. Considering that individual freedom cannot be safeguarded unless the courts intervene as soon as possible; that the medical grounds and therapeutic purposes justifying the restriction of the freedom of persons suffering from mental illness who are sectioned without their consent may be taken into account when setting this time-limit; that, on the same grounds as those stated in the aforementioned decision of 26 November 2010, the provisions of Article L. 3213-4 permitting official sectioning to be maintained for longer than fifteen days without the involvement of the courts violate the requirements specified under Article 66 of the Constitution;

14. Considering that it follows that Article L. 3213-4 of the Public Health Code must be ruled unconstitutional;

- ON THE EFFECTS OF THE RULING OF UNCONSTITUTIONALITY:

15. Considering that the second subparagraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is repealed on publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits according to which the effects produced by the provision are subject to revision"; whilst, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect;

16. Considering that the immediate repeal of Articles L. 3213 1 and L. 3213-4 of the Public Health Code violate the requirements to protect health and to prevent breaches of public order and entail manifestly excessive consequences; that, accordingly, in order to permit the legislator to remedy this unconstitutionality, it is appropriate to defer the date of repeal until 1 August 2011; that sectioning orders issued prior to this date according to the provisions ruled unconstitutional may not be challenged on the basis of this unconstitutionality,

HELD :

Article 1. - Articles L. 3213-1 and L. 3213-4 of the Public Health Code are unconstitutional.

Article 2. - The declaration of unconstitutionality contained in Article 1 shall take effect on 1 August 2011 in the conditions specified in recital 16.

Article 3. - 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 9 June 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 9 June 2011.