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Decision no. 2013-314 QPC of 14 JUNE 2013

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Mr Jeremy F. [Non-availability of appeal in cases involving the extension of the effects of a European arrest warrant]

On 27 February 2013 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, order no. 1087 of 19 February 2013) raised by Mr. Jeremy F., regarding the compatibility of the fourth subparagraph of Article 695-46 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 Treaty on the European Union;

Having regard to the Treaty on the Functioning of the European Union, including in particular protocol no. 3 thereof on the Statute of the Court of Justice of the European Union;

Having regard to the Code of Criminal Procedure;

Having regard to Law no. 2004-204 of 9 March 2004 adapting the justice system to developments in crime, and in particular Article 17 thereof;

Having regard to Law no. 2009-526 of 12 May 2009 on the simplification and clarification of the law and the streamlining of procedures, and in particular Article 130 thereof;

Having regard to Council Framework Decision no. 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States;

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 SCP Waquet, Farge, Hazan, Attorney at the Conseil d'État and the Cour de Cassation, registered on 21 and 28 March 2013;

Having regard to the observations of the Prime Minister, registered on 21 March 2013;

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

Having heard Claire Waquet Esq. on behalf of the applicant and Mr Thierry-Xavier Girardot, appointed by the Prime Minister, at the public hearing on 2 April 2013;

Having regard to Decision no. 2013/314P QPC of the Constitutional Council of 4 April 2013;

Having regard to the judgement of the Court of Justice of European Union of 30 May 2013 in Case C-168/13 PPU;

Having regard to the observations filed on behalf of the applicant by the SCP WaquetFargeHazan registered on 31 May 2013;

Having heard the Rapporteur;

1. Considering that the aforementioned Framework Decision of 13 June 2002 established the European arrest warrant with the goal of simplifying and expediting the arrest and surrender between the Member States of the European Union of persons requested for the purpose of criminal prosecution or the enforcement of a custodial sentence or detention order; that Article 17 of the aforementioned Law of 9 March 2004 inserted into the Code of Criminal Procedure Articles 695-11 to 695-51 on the European arrest warrant;

2. Considering that Articles 695-26 to 695-28 of the Code of Civil Procedure lay down the procedure for the enforcement in France of European arrest warrants; that the decision to surrender to the judicial authorities of the issuing State is taken by the investigation chamber under the conditions laid down by Articles 695-29 to 695-36 of the said Code; that according to the fourth subparagraph of Article 695-31, if the requested person states that it does not consent to its surrender, unless additional information is ordered, the investigation chamber shall adopt a decision within 20 days of the date on which it appeared, which may be appealed to the Cour de Cassation; that Article 695-46 of the Code of Criminal Procedure lays down the procedural rules governing decisions adopted by the French judicial authorities following the surrender to the judicial authorities of another Member State of the European Union of a person held in France under the terms of a European arrest warrant issued by those authorities; that, as in force following the enactment of the aforementioned Law of 12 May 2009, the first two subparagraphs of Article 695-46 grant the investigation chamber the power to rule on any request received from the competent authorities of the Member State that issued the European arrest warrant with a view to consenting either to prosecution or the enforcement of a custodial sentence or detention order issued in respect of offences other than those that established grounds for surrender and which were committed prior to the latter, or to the surrender of the requested person to another Member State for the purpose of prosecution or the enforcement of a custodial sentence or detention order for any offence whatsoever committed prior to surrender other than the offence establishing grounds for that measure; that pursuant to the fourth subparagraph of Article 695-46 of the Code of Criminal Procedure: "After it has satisfied itself that the request also includes the information provided for under Article 695-13 and, as the case may be, after having obtained the guarantees referred to under Article 695-32, the investigation chamber shall decide, by a ruling not subject to appeal, within thirty days of the date of receipt of the request";

3. Considering that, according to the applicant, by excluding any right to appeal against a decision of the investigation chamber which, following the surrender of an individual to a Member State of the European Union under the terms of a European arrest warrant, extensions of the effects of this mandate to other offences, the provisions of the fourth subparagraph of Article 695-46 violate the principle of equality before the courts and the right to effective judicial relief;

4. Considering that the application for a priority preliminary ruling on the issue of constitutionality concerns the phrase "by a ruling not subject to appeal" included in the fourth subparagraph of Article 695-46 of the Code of Criminal Procedure;

5. Considering, on the one hand, that Article 16 of the Declaration of the Rights of Man and the Citizen of 1789 provides: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no Constitution at all"; that according to this provision, no substantial encroachments may be made upon the right of the individuals concerned to seek effective relief before a court; that pursuant to Article 6 of the Declaration, the Law "must be the same for all, whether it protects or punishes"; that, whilst the legislator may enact different rules of procedure depending upon the facts, situations and individuals to which they apply, this is upon condition that such differences do not result in unjustified distinctions and that the parties to the trial be ensured legal guarantees, specifically with regard to the rights of the defence, which implies in particular the existence of a fair and equitable procedure which strikes a fair balance between the rights of the parties;

6. Considering, on the other hand, that pursuant to Article 88-2 of the Constitution: "Statutes shall determine the rules relating to the European arrest warrant pursuant to acts adopted under the Treaty of European Union"; that, by these special provisions, the constituent legislator intended to remove constitutional barriers precluding the enactment of the legislative provisions that necessarily follow from the acts adopted by the institutions of the European Union relating to the European arrest warrant; that in consequence, it is for the Constitutional Council when seized in relation to legislative provisions on the European arrest warrant to review the constitutionality of such legislative provisions that result from the exercise by the legislator of the margin of appreciation provided for under Article 34 of the Treaty on European Union, in the version currently in force;

7. Considering that, following the reference for a preliminary ruling requested by the aforementioned decision of the Constitutional Court of 4 April 2013, the Court of Justice of the European Union held that: "Articles 27(4) and 28(3)(c) of Council Framework Decision 2002/584/JAI of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JAI of 26 February 2009, must be interpreted as not precluding Member States from providing for an appeal suspending execution of the decision of the judicial authority which rules, within 30 days from receipt of the request, on giving consent either to the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order of a person for an offence committed prior to its surrender pursuant to a European arrest warrant, other than that for which he was surrendered, or to the surrender of a person to a Member State other than the executing Member State, pursuant to a European arrest warrant issued for an offence committed prior to its surrender, provided that the final decision is adopted within the time limits laid down in Article 17";

8. Considering that, accordingly, in providing that the decision of the investigation chamber be given "by a ruling not subject to appeal", the fourth subparagraph of Article 695-46 of the Code of Criminal Procedure does not necessarily result from the acts adopted by the institutions of the European Union in relation to the European arrest warrant; that it is for the Constitutional Court, when seized on the basis of Article 61-1 of the Constitution, to review the compatibility of the contested provisions with the rights and freedoms guaranteed under the Constitution;

9. Considering that following the surrender of the concerned party to the judicial authorities of the issuing state of a person arrested in France under the terms of the European arrest warrant, the investigation chamber seized pursuant to Article 695-46 of the Code of Criminal Procedure of a request to extend the effects of the said mandate to other offences, which may be more serious than those establishing grounds for surrender, or for the purpose of the enforcement of a custodial sentence or detention order, shall be required to complete the formal checks and the legal assessments relating to the offences, sentences and measures concerned; that in depriving the parties of the right to appeal to the Cour de Cassation against the judgement of the investigation chamber ruling on such an application, the contested provisions impose an unjustified restriction on the right to obtain effective judicial relief; that accordingly, the phrase "by a ruling not subject to appeal" contained in the fourth subparagraph of Article 695-46 of the Code of Criminal Procedure must be ruled unconstitutional;

10. 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;

11. Considering that the declaration that the phrase "by a ruling not subject to appeal" contained in the fourth subparagraph of Article L. 695-46 of the Code of Criminal Procedure is unconstitutional shall take effect upon publication of this decision; that it shall apply to all appeals before the Cour de Cassation on that date,

HELD :

Article 1 . – The wording "by a ruling not subject to appeal" included in the fourth subparagraph of Article 695-46 of the Code of Criminal Procedure is unconstitutional.

Article 2 . – The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision under the terms set down in recital 11.

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 aforementioned Ordinance of 7 November 1958.

Deliberated by the Constitutional Council in its session of 13 June 2013, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL and Ms Nicole MAESTRACCI.

Announced on 14 June 2013.