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Decision no. 2011-218 QPC of 3 FEBRUARY 2012

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Mr Cédric S. [Conviction of a career officer and demotion resulting in the automatic loss of military status]

On 24 November 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. 352366 of 23 November 2011) on behalf of Mr Cédric S. raising the conformity of Article L. 3117 of the Code of Military Justice, as in force prior to the enactment of Law no. 20111862 of 13 December 2011 on the allocation of disputes and the streamlining of certain judicial procedures, and Article L. 413914 of the Defence Code 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 organic law on the Constitutional Council;

Having regard to the Code of Military Justice;

Having regard to the Defence Code;

Having regard to the Code of Criminal Procedure;

Having regard to Law no. 20111862 of 13 December 2011 on the allocation of disputes and the streamlining of certain judicial procedures, including in particular Article 35 thereof;

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 on behalf of the applicant by Maud Bouret Esq., Attorney at the Paris Bar, registered on 29 December 2011;

Having regard to the observations of the Prime Minister, registered on 16 December 2011;

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

Having heard Franck Bourrel Esq., Attorney at the Toulon Bar, on behalf of the applicant, and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 24 January 2012;

Having heard the Rapporteur;

1. Considering that Article L. 3117 of the Code of Military Justice as in force prior to the enactment of the aforementioned Law of 13 December 2011 provides: "Any conviction of an officer, a career non-commissioned officer or a non-commissioned officer under contract shall entail automatic demotion if it relates to a criminal offence ("crime"), even if dismissal was not ordered by the relevant court.

"Any sentencing to a penalty of a term of imprisonment of at least three months, including suspended sentences, issued against an officer, a career non-commissioned officer or a non-commissioned officer under contract shall entail automatic demotion if it relates to one of the following minor offences ("délits"):

"1. The offences of theft, extortion, fraud, breach of trust and possession of stolen goods punished according to Book III of the Criminal Code;

"2. The offences provided for under Articles 4133, 43211, 4331 and 4332 of the Criminal Code;

"3. Bankruptcy offences and offences similar to bankruptcy.

"The same shall apply if the sentence imposed is shorter than three months' imprisonment but is accompanied by either a ban on residence or a withdrawal or all of part of the offender's political, civil or family rights or if the sentence orders that the convicted individual shall be ineligible for any public office";

2. Considering that pursuant to Article L. 4139-14 of the Defence Code: "Military status shall be automatically lost in the following cases:

"1. Upon arrival at the age limit or the duration of service limit for mandatory retirement in accordance with the conditions provided for under Articles L. 413916 and L. 41415;

"2. Upon demotion in accordance with the conditions provided for under the Code of Military Justice or following the loss of French nationality;

"3. Pursuant to a disciplinary measure ordering removal from the armed forces or the termination of the contract;

"4. By definitive discharge after securing the opinion of a discharge commission, the organisational procedures and functioning of which shall be governed by order of the Conseil d'État;

"5. Due to inadequate academic results, for the students of military colleges;

"6. Upon conclusion of reconversion leave or complementary reconversion leave, subject to the agreement of the interested party, in accordance with the conditions provided for under Articles L. 41395 and L. 41399, without prejudice to the provisions contained in subparagraph VI of Article 89 of Law no. 2005270 of 24 March 2005 on the general rules applicable to military personnel;

"7. Upon conclusion of leave for marine personnel, with the exception of the general officers included in the second division of general officers, in accordance with the conditions provided for under Articles L. 41396, L. 41397, L. 413910 and L. 41413;

"8. Upon securing a tenured post as a public official, or upon successful completion of a competition for appointment as a public official in respect of which military personnel are not eligible for the secondment arrangements provided for under the first subparagraph of Article L. 41391, in accordance with the conditions set forth in section 1 of this chapter";

3. Considering that, according to the applicant, since the contested legislation providing for the loss of military status as a result of demotion following a conviction does not take account of the serviceman's personality or the seriousness of his conduct, it violates the requirements resulting from Article 8 of the 1789 Declaration of the Rights of Man and the Citizen; that it accordingly violates the principle of equality before the law enshrined in Article 6;

4. Considering that the application for a priority preliminary ruling on the issue of constitutionality concerns Article L. 3117 of the Code of Military Justice as in force prior to the enactment of the aforementioned Law of 13 December 2011 and the first and third paragraphs of Article L. 413914 of the Defence Code;

5. Considering that Article 8 of the 1789 Declaration provides: "The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offence"; that it follows that these principles only apply to penalties with the nature of a punishment;

6. Considering that according to the settled case law of the Conseil d'État, demotion amounts to a punishment for a military serviceman; that the principle that punishments be individually determined resulting from Article 8 of the 1789 Declaration implies that this penalty may only be applied if expressly ordered by a court, taking account of the circumstances specific to each individual case;

7. Considering that the contested provisions of Article L. 3117 of the Code of Military Justice, as in force prior to the enactment of the aforementioned Law of 13 December 2011, provide that any conviction for a criminal offence ("crime") shall entail automatic demotion, that any sentencing to a penalty of a term of imprisonment of at least three months, including suspended sentences, shall entail demotion if it is issued in respect of certain minor offences ("délits") and that the same shall apply if the penalty is shorter than three months' imprisonment but is accompanied either by a ban on residence or a withdrawal or all of part of the offender's political, civil or family rights or if the sentence orders that the convicted individual shall be ineligible for any public office; that the punishment of demotion, which is definitive and entails the loss of military status, is an automatic consequence of various criminal convictions and does not require an express order by the court; that whilst the court has the right when passing sentence to expressly order that it not be included in certificate no. 2 from the criminal records office, in accordance with the provisions of Article 7751 of the Code of Criminal Procedure, this right is not capable in itself of guaranteeing that the requirements resulting from the principle that punishments be determined individually are respected; that accordingly, Article L. 3117 of the Code of Military Justice, as in force prior to the enactment of the aforementioned Law of 13 December 2011, must be ruled unconstitutional, without any requirement to examine any other challenge;

8. Considering that the first and third subparagraphs of Article L. 413914 of the Defence Code which provide that the loss of military status is an automatic consequence of demotion in accordance with the conditions provided for under the Code of Military Justice or following the loss of French nationality are not, considered in themselves, contrary to the rights and freedoms guaranteed by the Constitution;

9. Considering that pursuant to the second sentence of the second subparagraph of Article 62 of the Constitution, it is for the Constitutional Council to determine the conditions and limits under which the effects which the provision ruled unconstitutional has produced are to be liable to be challenged; that although, as a matter of principle, a declaration of unconstitutionality should benefit the person who referred the application for a priority preliminary ruling on the issue of constitutionality and the provision declared unconstitutional cannot be applied in proceedings pending at the time the decision of the Constitutional Council is published, the provisions of Article 62 reserve to the Council the power to overturn the effects which the provision had before this declaration takes effect;

10. Considering that this declaration that Article L. 3117 of the Code of Military Justice as in force prior the the aforementioned Law of 13 December 2011 is unconstitutional shall take effect upon publication of this decision; that it shall apply to all pending proceedings; that it may also be invoked in any appeals for annulment which may be filed after publication of this decision against decisions ordering the loss of military status issued in accordance with Article L. 4139 14 of the Defence Code on the basis of the provisions of Article L. 3117 of the Code of Military Justice which have been ruled unconstitutional,

HELD :

Article 1. Article L. 3117 of the Code of Military Justice, as in force prior to the enactment of Law no. 20111862 of 13 December 2011 on the allocation of disputes and the streamlining of certain judicial procedures, is unconstitutional.

Article 2 The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions specified by its recital 10.

Article 3. The first and third subparagraphs of Article L. 413914 of the Defence Code are constitutional.

Article 4. – 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 2 February 2012, 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 3 February 2012.