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Decision no. 2012-240 QPC of 4 MAY 2012

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Mr Gérard D. [Definition of the offence of sexual harassment]

On 29 February 2012 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 from the Cour de Cassation (criminal chamber, judgment no. 1365 of 29 February 2012), raised by Mr Gérard D., regarding the compatibility of Article 222-33 of the Criminal 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 the basic law on the Constitutional Council;

Having regard to the Criminal Code;

Having regard to Law no. 92-684 of 22 July 1992 reforming the provisions of the Criminal Code on the punishment of offences against the person;

Having regard to Law no. 98-468 of 17 June 1998 on the prevention and punishment of sexual offences and the protection of minors;

Having regard to Law no. 2002-73 of 17 January 2002 on social modernisation;

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 in intervention on behalf of the European Association against Violence against Working Women by Nadjette Guenatef Esq., Attorney at the Créteil bar, registered on 19 March and 12 April 2012; 2

Having regard to the observations on behalf of the applicant by SCP Waquet-Farge-Hazan, Attorney at the Conseil d'État and the Cour de Cassation, registered on 23 March and 6 April 2012;

Having regard to the observations of the Prime Minister, registered on 23 March 2012;

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

Having heard Claire Waquet Esq., André Soulier Esq., Nadjette Guenatef Esq. and Mr Xavier Potier at the public hearing of 17 April 2012;

Having heard the Rapporteur;

1. Considering that pursuant to Article 222-33 of the Criminal Code, "The act of harassing another person with the goal of obtaining favours of a sexual nature shall be punished by a term of one year's imprisonment and a fine of 15,000 Euros";

2. Considering that, according to the applicant, by punishing "the act of harassing another person with the goal of obtaining favours of a sexual nature" without precisely defining the constituent elements of the offence, the contested provision violates the principle that offences and punishments be regulated by law as well as the principles of clarity and precision in the law, legal foreseeability and legal certainty;

3. Considering that pursuant to Article 34 of the Constitution, as well as the principle of the legality of criminal offences and punishments according to Article 8 of the 1789 Declaration of the Rights of Man and the Citizen, the legislator is under the obligation to determine the scope of criminal law and to define criminal offences and other offences in sufficiently clear and precise terms;

4. Considering that, as in force following the enactment of the aforementioned Law of 22 July 1992, sexual harassment as provided for and punished under Article 222-33 of the new Criminal Code is defined as "The act of harassing other persons by using orders, threats or force with the goal of obtaining favours of a sexual nature by a person abusing the authority granted by its duties"; that Article 11 of the aforementioned Law of 17 June 1998 provided a new definition of this offence, replacing the words "by using orders, threats or force" with the words: "by issuing orders, uttering threats, using force or exerting serious pressure"; that Article 179 of the aforementioned Law of 17 January 2002 once again amended the definition of the offence of sexual harassment, drafting Article 222-33 of the Criminal Code in the form contested;

5. Considering that according to the above, Article 222-33 of the Criminal Code enables the offence of sexual harassment to be punished without the constituent elements of the offence being sufficiently defined; that accordingly, the provisions violate the principle that offences and punishments be regulated by law and must be ruled unconstitutional;

6. Considering that the second paragraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the 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 under which the effects produced by the provision may be questioned"; that, if, 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;

7. Considering that the repeal of Article L. 222-33 of the Criminal Code shall take effect upon publication of this decision; that it shall apply in all proceedings which have not been definitively resolved at that time,

HELD :

Article 1. Article 222-33 of the Criminal Code 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 set down by recital 7.4.

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 3 May 2012, 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 4 May 2012.