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Decision no. 2011-191/194/195/196/197 QPC of 18 NOVEMBER 2011

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Mrs Élise A. and others [Police custody II]

On 23 August 2011, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received from the Conseil d'État (decision no. 349752 of 23 August 2011) an application for a priority preliminary ruling on the issue of constitutionality raised by Mrs Élise A., Mrs Alexandra B. and Mrs Véronica C., Messrs Benjamin C., Fabrice E. Grégoire É. and Mathieu H., Mes Julia K., Messrs Pierre R. and Martin R., Mrs Peggy S. and Mr Georges S., regarding the conformity of Articles 62 and 6341 to 6345 of the Code of Criminal Procedure (no. 2011191 QPC) with the rights and freedoms guaranteed by the Constitution. It also received an application from the Cour de cassation (criminal division, judgments nos. 4684 to 4687 of 6 September 2011) on 9 September 2011 under the same conditions:

- for a priority preliminary ruling on the issue of constitutionality raised by Mr JeanFrançois M. regarding the conformity of subparagraph 2 of Article 62 of the Code of Criminal Procedure and Articles 6341 to 6345 of the same Code (no. 2011194 QPC) with the rights and freedoms guaranteed by the Constitution;

- for two priority preliminary ruling on the issue of constitutionality raised by Messrs Undriks K. and Mabrouk T., regarding the conformity of subparagraph 3 of Article 6331 of the Code of Criminal Procedure, subparagraph two of Article 634 and Articles 6341 to 6343 of the same Code (no. 2011195 QPC and no. 2011 196 QPC) with the rights and freedoms guaranteed by the Constitution;

- for a priority preliminary ruling on the issue of constitutionality raised by Messrs Mohamed A. and Khalifa Z., regarding the conformity of Article 6341 of the Code of Criminal Procedure (no. 2011197 QPC) with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 581067 of 7 November 1958 as amended, concerning basic law on the Constitutional Council;

Having regard to Decision no. 201014/22 QPC of the Constitutional Council of 30 July 2010;

Having regard to the Code of Criminal Procedure;

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

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 Mrs A., Mrs B. and Mrs C., Messrs C., E. and H., Mrs K., Messrs R. and R., Mrs S. and Mr S. by Esq. Grégoire Étrillard, Attorney at the Paris bar, registered on 29 September 2011;

Having regard to the observations in intervention filed on behalf of the Association of French Attorneys in case no. 2011195 QPC by Esq. Maxime Cessieux, Attorney at the HautsdeSeine bar, registered on 27 September 2011;

Having regard to the observations in intervention in cases no. 2011194 QPC and no. 2011195 QPC filed on behalf of the association Fédération nationale des unions des jeunes avocats [National Federation of Young Attorneys Union] by Esq. Laëtitia Marchand, Attorney at the Paris bar, and Esq. JeanBaptiste Gavignet, Attorney at the Dijon bar, registered on 30 September and 18 October 2011;

Having regard to the observations filed on behalf of M. K. and on behalf of M. T. by Esq. Eymeric Molin, Attorney at the Lyon bar, registered on 3 October 2011;

Having regard to the observations filed on behalf of Messrs. A. and Z. by Esq. Patrice Spinosi, Attorney to the Conseil d'État and the Cour de Cassation, registered on 3 and 18 October 2011;

Having regard to the observations of the Prime Minister, registered on 14 September and on 3 and 18 October 2011;

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

Having heard Esq. Étrillard, Esq. Molin, Esq. Bernard Sayn, Attorney at the Lyon bar on behalf of M. T., Esq. Spinosi, Esq. Marchand, Esq. Gavignet, Esq. Didier Ligier, Attorney at the Versailles bar on behalf of the intervener Association and Esq. ThierryXavier Girardot, appointed by the Prime Minister at the public hearing of 8 November 2011;

Having heard the Rapporteur;

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

2. Considering that Article 62 of the Criminal Procedure Code provides: "Persons in respect of whom there is no plausible reason to suspect that they have committed or attempted to commit an offence may only be detained for as long as is necessary for them to be heard, and under no circumstances for more than four hours.

"If it becomes apparent during questioning that there is a plausible reason to suspect that they have committed or attempted to commit an offence punishable by a term of imprisonment, they may only remain available to the investigators against their will if officially taken into police custody. The fact that they have been taken into custody shall be notified to them under the conditions provided for in Article 63";

3. Considering that Article 6331 of the same Code concerns the right of a person within police custody to be assisted by a lawyer; that pursuant to subparagraph three of that Article: "The lawyer may also be appointed by the accused person or persons in accordance with the first subparagraph of Article 632. Such appointment must however be confirmed by that person";

4. Considering that Article 634 of the same Code concerns the discussions between the person in custody and his lawyer; that pursuant to subparagraph four of that Article: "The duration of the discussion may not exceed thirty minutes";

5. Considering that pursuant to Article 6341: "Should he so request, the lawyer may consult the report drawn up in accordance with the last subparagraph of Article 631 attesting that the person has been notified of the fact that he has been placed in police custody and of the rights available to him, the medical certificate issued in accordance with Article 633, as well as the reports of questioning of his client. He may not request or make a copy of that report. He may however take notes";

6. Considering that pursuant to Article 6342: "The person in custody may request that his lawyer be present during hearings and face to face confrontations. Should this occur, unless it relates exclusively to issues of identity, the first hearing may not start unless the chosen lawyer or that appointed ex officio is present any sooner than two hours after intimation of notice of the request made by the person in custody that he be assisted by a lawyer, which shall be sent under the conditions provided for under Article 6331. The lawyer make take notes during the hearings or face to face confrontations.

"If the lawyer arrives after expiry of the time limit provided for under the first subparagraph whilst a hearing or face to face confrontation is in progress, the hearing or confrontation shall be suspended if requested by the person in custody in order to enable him to consult with his lawyer subject to the conditions provided for under Article 634 and in order to enable the latter to examine the documents provided for under Article 6341. If the person in custody does not ask to consult with his lawyer, the latter may attend the face to face confrontation or the hearing in progress from the time of his arrival on the premises of the investigating police.

"If investigative requirements demand that the person is heard immediately, upon request by the officer of the investigating police, the public prosecutor may authorise the hearing to start without awaiting the expiry of the time limit provided for under the first subparagraph, provided that such authorisation is issued in writing and the reasons are given.

"On an exceptional basis, if requested by the officer of the investigating police, the public prosecutor or the custodial judge may issue a written decision supported by reasons that authorises, according to the distinctions provided for in the following subparagraph, a postponement of the lawyer's attendance at hearings or face to face confrontations if this measure appears to be indispensable for imperative reasons relating to the particular circumstances of the investigation, either to permit the proper conduct of urgent investigations relating to the collection or conservation of evidence, or to prevent an imminent attack against other persons.

"The public prosecutor may not postpone the attendance of the lawyer for longer than twelve hours. If the person is held in custody for an offence punishable by a term of imprisonment of five years or more, upon request by the public prosecutor, the custodial judge may authorise the lawyer's attendance to be postponed beyond twelve hours, but not in excess of twenty four hours. The authorisations issued by the public prosecutor and the custodial judge shall be issued in writing and contain reasons with regard to the conditions provided for under the previous subparagraph, taking into account the precise and circumstantiated elements pertaining to the facts of the case.

"If the public prosecutor or the custodial judge authorises the postponement of the lawyer's attendance during the hearings or face to face confrontations in accordance with the provisions of the two previous subparagraphs, he may also decide that the lawyer may not consult the hearing reports relating to the person in custody for an identical period, under the conditions and subject to the procedures provided for under the same subparagraphs" ;

7. Considering that pursuant to Article 6343: "The hearing or face to face confrontation shall be conducted under the supervision of the police officer from the investigating police who may, in the event of any difficulty, put an end to it at any time and immediately inform the public prosecutor who shall, if appropriate, inform the president of the local bar in order for another lawyer to be appointed.

"The lawyer may ask questions upon conclusion of each hearing or face to face confrontation which he attends. The police officer may not object to these questions unless they are of such a nature as to compromise the proper conduct of the investigation. The report shall mention any such refusal.

"Upon conclusion of each meeting with the person in custody and each hearing or face to face confrontation which he attends the lawyer may submit written observations in which he may specify the questions which were refused in accordance with the second subparagraph. These shall be included in the case file. For the duration of the period of custody, the lawyer may submit his observations, or a copy thereof, to the public prosecutor";

8. Considering that pursuant to Article 6344: "Without prejudice to the exercise of the right to a defence, for the duration of the period in custody the lawyer may not inform any person either of the meetings with his client or the information which he has obtained from consultation of the reports and from his attendance at hearings and face to face confrontations";

9. Considering that pursuant to Article 6345: "If the victim is brought face to face with a person in custody, the former may also request that they be assisted by a lawyer chosen by them or their guardian if a minor or, upon request, who is appointed by the president of the local bar.

"The victim shall be informed of this right before the face to face confrontation occurs.

"Upon request, the lawyer may consult the report of the hearing of his client.

"Article 6343 shall apply";

10. Considering that the applicants argue that these provisions violate the rights to a defence, the right to a fair trial which guarantees a balance between the rights of the parties, the principle of the necessary rigour of restraining measures implemented during the course of a criminal trial as well as the jurisdiction of the courts, as the guardian of individual freedom; that they object first to the provisions of Article 62 of the Code of Civil Procedure insofar as they enable a suspect who has not been taken into custody to be heard without a lawyer, and secondly to the provisions governing the conditions under which a person in custody is to be assisted by a lawyer;

° WITH RESPECT TO THE PROVISIONS OF THE CONSTITUTION APPLICABLE:

11. Considering that Article 7 of the Declaration of Man and the Citizen of 1789 provides: "No one shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law. Any one soliciting, transmitting, executing, or causing to be executed, any arbitrary order, shall be punished. But any citizen summoned or arrested in virtue of the law shall obey without delay, as resistance constitutes an offense"; that Article 9 provides: "As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner's person shall be severely repressed by law"; that Article 16 provides: “A society in which the observance of the law is neither assured, nor the separation of powers defined, has no constitution at all”;

12. Considering that pursuant to Article 34 of the Constitution, the law determines the rules governing the criminal procedure; that pursuant to Article 66: “No one shall be arbitrarily detained. ° The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle under the conditions laid down by law”;

13. 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 avoids unnecessary rigour during the search for the perpetrators of misdemeanours;

14. Considering moreover that it is incumbent upon the legislator to achieve a balance between, on the one hand, preventing breaches of public order and bringing offenders to justice, both of which are necessary to safeguard rights and principles with constitutional status, and on the other hand, the exercise of rights and freedoms guaranteed under the Constitution; and that these rights and freedoms include respect for the right to a defence resulting from Article 16 of the 1789 Declaration and the individual liberty that Article 66 of the Constitution places under the protection of the Judicial Authority;

° WITH RESPECT TO ARTICLE 62 OF THE CODE OF CRIMINAL PROCEDURE:

15. Considering that the applicants argue that in providing the right to be assisted by a lawyer is dependent on the issue of a detention order and not on mere suspicion concerning a person who is questioned, Article 62 of the Code of Criminal Procedure permits a suspect to be questioned without benefiting from the presence of a lawyer; that accordingly it violates the requirement that the rights of the defence be respected;

16. Considering that the first subparagraph of Article 62 limits to a maximum of four hours the period during which a person in respect of whom there is no plausible reason to suspect that he has committed or attempted to commit an offence may be detained; that it is only applicable to witnesses, and accordingly does not violate the rights of the defence;

17. Considering that the second subparagraph of this Article provides that: "If it becomes apparent during questioning that there is a plausible reason to suspect that they have committed or attempted to commit an offence punishable by a term of imprisonment, they may only remain available to the investigators against their will in order to be heard if officially taken into police custody.

18. Considering that it necessarily follows from these provisions that a person in respect of whom there is plausible reason to suspect that he has committed or attempted to commit an offence may be heardprise en charge by the investigators outside of the police custody regime provided that he is not made available to them against his will;

19. Considering that whilst the requirement to respect the rights of the defence demands as a matter of principle that a person suspected of having committed an offence cannot be heard if he has been detained against his will without benefitting from the assistance of a lawyer, this constitutional requirement does not demand such assistance if the suspect has not been held against his will and freely agrees to be heard;

20. Considering that nonetheless, the respect for the rights of the defence demands that if either prior to or during the course of a hearing it appears that there is plausible reason to suspect that a person has committed or attempted to commit an offence for which he could be detained in police custody, he can only be heard, or continue to be heard, freely by the investigators if he has been informed of the nature and date of the offence which he is suspected to have committed and of his right to leave the police or gendarmerie station at any time; that, subject to this reservation which is applicable to hearings held after the publication of this decision, the provisions of the second subparagraph of Article 62 of the Code of Criminal Procedure do not violate the rights of the defence;

21. Considering that the provisions of Article 62 of the Code of Criminal Procedure do not violate any right or freedom guaranteed by the Constitution,

° WITH RESPECT TO THE PROVISIONS APPLICABLE TO POLICE CUSTODY:

22. Considering that the applicants argue that the limitations imposed on the right of the person in police custody or the victim to be assisted by a lawyer violate the requirement to respect the rights of the defence, the right to a fair trial and the principle that each party be allowed to make representations; that they object in particular to the lack of any right for the lawyer to consult the case file during the hearing or the face to face confrontation and to obtain copies thereof, the possibility granted to the investigators to start hearing the person in police custody even if his lawyer has not had sufficient time to arrive at the police or gendarmerie station, the time limit of thirty minutes for the meeting between the person in police custody and his lawyer, the restriction of the lawyer's assistance solely to acts relating to the hearing or face to face confrontation, as well as the exclusion of such assistance during the course of investigative acts such as searches;

23. Considering that, the applicants also challenge the power granted to the investigating police officer, on the one hand to object to the questions asked by the lawyer during the course of the hearing of the person in police custody, and on the other hand, in the event of any difficulty, to decide to put an end to the hearing or face to face confrontation and request the public prosecutor to inform the president of the local bar that another lawyer is to be appointed;

24. Considering that the intervener association also argues that the right granted to the public prosecutor or the custodial judge to postpone the lawyer's attendance at hearings or face to face confrontations violates the rights of the defence;

25. Considering that following the decision of the Constitutional Council of 30 July 2010, the aforementioned Law of 14 April 2011 has the objective of remedying the unconstitutionality of the provisions of the Code of Criminal Procedure relating to police custody; that to this effect, in particular the preliminary Article of the Code of Criminal Procedure was supplemented by a further subparagraph pursuant to which: "In matters relating to criminal offences and misdemeanours, no person may be convicted solely on the basis of statements which he has made if he has not previously been able to consult with and be assisted by a lawyer"; that Article 631 provides that the person placed in police custody shall be immediately informed of his right "during hearings to make statements, answer the questions which are asked to him or to remain silent after stating his identity"; that Article 63 42 provides that the person in police custody may request that the lawyer be present at his hearings and face to face confrontations and organise the conditions applicable to such attendance;

26. Considering first that the third subparagraph of Article 6331 provides that, when the lawyer of the person in police custody is appointed by the accused in accordance with Article 632, the person in police custody must confirm that appointment; that this provision, which is intended to guarantee the right of the person in police custody to choose his lawyer, does not violate any right or freedom guaranteed by the Constitution;

27. Considering secondly that Article 6341 provides that the lawyer of the person in police custody may only consult the report of the decision to place him in police custody and the notification of the rights granted under Articlee 631, the medical certificate issued in accordance with Article 633 and the reports of the hearings of his client;

28. Considering, on the one hand, that pursuant to Article 14 of the Code of Criminal Procedure, the criminal police is responsible for "establishing breaches of criminal law, gathering evidence and searching for the perpetrators"; that police custody is a restrictive measure which is necessary for certain operations by the criminal police; that, as held by the Constitutional Council in the aforementioned decision of 30 July 2010, the developments in the law of criminal procedure which have reinforced the importance of the police investigation stage in the gathering of evidence on the basis of which a person on trial will be judged, must be companied by appropriate guarantees applicable to police custody as well as its conduct and which ensure that the rights of the defence are protected; that the contested provisions do not have the objective of enabling a discussion as to the legality of investigative acts or whether the evidence gathered by the investigators is well founded if it has not resulted in a decision by the judicial authorities to prosecute and which may, depending upon the circumstances, be discussed before the examining judge or during the trial; that they no longer have the objective of enabling a discussion as to whether the decision to detain the person in police custody was well founded, which is circumscribed by the law to a period of twenty four hours and may be renewed only once; that accordingly, the claims based on the fact that the ontested provisions on police custody may not guarantee a fair balance between the rights of the parties and contradictory nature of this stage in the criminal procedure are groundless;

29. Considering, on the other hand, that subparagraph 2 of Article 631 provides that the person in police custody shall be immediately informed of the nature and alleged date of the offence which he is suspected to have committed or attempted to have committed; that, considering the time-limits to which police custody is subject, the provisions of Article 6341 which limit access by the lawyer only to the documents relating to the police custody procedure and the previous hearings of the person in police custody strike a balance between the requirement to respect the rights of the defence and the objective of constitutional standing of searching for the perpetrators of criminal offences which is not unreasonable; that accordingly Article 6341 does not violate any right or freedom guaranteed by the Constitution;

30. Considering thirdly that in providing that the person in police custody may consult with his lawyer for thirty minutes, that he may request that the lawyer be present at his hearings and face to face confrontations and that the first hearing of the person in police custody may occur no sooner than two hours after the lawyer has been informed, the second subparagraph of Article 634 and Article 6342 set forth guarantees that ensures that the person in police custody will benefit from the effective assistance of a lawyer; that it is in any case for the judicial authorities to oversee compliance with the principle of loyalty in the administration of evidence and to assess the probative value of the statements made, depending upon the circumstances, by a person in police custody when his/her lawyer is not present; that accordingly, since no time limit before each of any following hearings of the person in police custody is specified and since the hearing may start prior to the expiry of the time limit of two hours, provided that written authorisation is granted by the public prosecutor which is supported by reasons, where the requirements of the investigation demand that the person is heard immediately, Parliament struck a balance between the right of the person in custody to benefit from the assistance of a lawyer and the objective of constitutional standing of searching for the perpetrators of offences which is not unreasonable;

31. Considering fourthly that the last three subparagraphs of Article 6342 permit the lawyer's attendance at hearings or face to face confrontations or the consultation of the hearing reports for the person in police custody to be postponed; that these provisions do not have the effect of enabling the meeting of up to thirty minutes between the lawyer and the person in police custody to be postponed; that such postponement is only possible if authorised by the public prosecutor in writing and supported by reasons, and may not exceed twelve hours; that this period may be extended to twenty four hours if authorised by the custodial judge, if the person is in police custody in respect of an offence punishable by a term of imprisonment of five years or more; that this ability to postpone the meeting is only available on exceptional grounds where such a measure appears to be indispensable for imperative reasons relating to the particular circumstances of the investigation, either to permit the proper conduct of urgent investigations relating to the collection or conservation of evidence, or to prevent an imminent attack against other persons; that the restriction thereby imposed on the principle that a person held in police custody may only be heard if he has been able to benefit from the effective assistance of a lawyer is placed under the control of the criminal courts before which prosecutions are pending; that accordingly, having regard to the situation and circumstances in which such a restriction may be implemented, the ability to order such postponement strikes a balance between the rights of the defence and the objective of constitutional standing of searching for the perpetrators of offences which is not unreasonable;

32. Considering that it follows from the above that the provisions of the second subparagraph of Article 634 and those of Article 6342 neither violate the requirement that the rights of the defence be respected nor any other right or freedom guaranteed by the Constitution;

33. Considering fifthly that the first subparagraph of Article 6343 provides that the hearing or face to face confrontation is to be conducted under the supervision of the officer from the investigating police who may, in the event of any difficulty, put an end to it at any time and immediately inform the public prosecutor who shall, if appropriate, inform the president of the local bar in order for another lawyer to be appointed;

34. Considering that the second subparagraph of this Article provides that the lawyer may ask questions upon conclusion of each hearing or face to face confrontation and the officer of the investigating police may only object to these questions if they are of such a nature as to compromise the proper conduct of the investigation; that the last subparagraph permits the lawyer to submit written observations in which he may specify the questions which were refused; that the lawyer may also submit his written observations to the public prosecutor for the duration of the period in police custody;

35. Considering that these provisions do not violate either the rights of the defence or any other right or freedom guaranteed by the Constitution;

36. Considering, sixth, that Article 6344 places the lawyer under a duty of secrecy with regard to the investigation by preventing him from informing any person either of the meetings with his/her client or the information which he/she has obtained from consultation of the reports and from his/her attendance at hearings and face to face confrontations for the duration of the period in police custody; that according to the terms of this Article, this prohibition applies "without prejudice to the exercise of the right to a defence"; that it does not accordingly violate these rights; that this Article does not violate any right or freedom guaranteed by the Constitution;

37. Considering, seventh, that Article 6345 also grants victims appearing at a face to face confrontation with a person in police custody the right to request that they be accompanied by a lawyer; that this does not violate any right or freedom guaranteed by the Constitution;

38. Considering that it follows from all of the above that the second subparagraph of Article 62 of the Code of Criminal Procedure must be upheld as constitutional subject to the reservation contained in recital 20; that the other contested provisions must be upheld as constitutional,

HELD:

Article 1 .- Subject to the reservation set out in recital 20, the second subparagraph of Article 62 of the Code of Criminal Procedure is constitutional.

Article 2. - The first subparagraph of Article 62 of the Code of Criminal Procedure, the third subparagraph of its Article 6331, the second subparagraph of its Article 634 and its Articles 6341 to 6345 are constitutional.

Article 3. - This decision shall be published in the Journal officiel of the French Republic and notified in the conditions provided for under Article 2311 of the aforementioned Ordinance of 7 November 1958.

Deliberated by the Constitutional Council in its session on 17.11.11, 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 18 November 2011.

Journal officiel of 19 November 2011, p. 19480