Return to homepage
Français
English
Deutsch
Español
Italiano

Decision no. 2014-403 QPC of 13 June 2014

Return to homepagePrint this pageMake this page a PDF documentAdd to bookmarks Reduce fontIncrease font

Mr Laurent L. [Invalidity of appeals by accused persons who have absconded]

On 11 April 2014 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. 2135 of 9 April 2014) raised by Mr. Laurent L., regarding the compatibility of the fifth subparagraph of Article 380-11 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 Code of Criminal Procedure;

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 Piwnica et Molinié, Attorney at the Conseil d'État and the Cour de Cassation, registered on 2 and 19 May 2014;

Having regard to the observations of the Prime Minister, registered on 5 May 2014;

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

Having heard Emmanuel Piwnica Esq., Attorney at the Conseil d'État and the Cour de Cassation, for the applicant, and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 3 June 2014;

Having heard the Rapporteur;

1. Considering that the fifth subparagraph of Article 380-11 of the Criminal Procedure Code provides: "An appeal filed by the accused shall be invalid also by effect of a ruling by the president of the assize court that the former has absconded and could not be located prior to the start of or during the course of the hearing";

2. Considering that, according to the applicant, in depriving him or her of his or her right of appeal, an accused person who was not present during the oral hearing before the assize court ruling on the appeal, these provisions violate the principle of equality and the right to effective relief; that moreover, the lack of any discretion for the president of the assize court violates the requirements resulting from Article 16 of the 1789 Declaration of the Rights of Man and the Citizen;

3. Considering that pursuant to Article 16 of the 1789 Declaration: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; that the requirement to respect the rights of the defence is guaranteed by these provisions; that it also follows that no substantial breaches may occur of the right of interested parties to secure effective relief before a court;

4. Considering that Articles 317 to 320-1 of the Code of Criminal Procedure require the accused to appear in person before the assize court; that the legislator provided that the default procedure applicable to criminal matters, which is governed by Articles 379-2 to 379-6 of the Code, should apply to proceedings in which the accused person is absence without a valid excuse; that Article 380-1 however precludes this procedure before the assize courts when ruling on an appeal;

5. Considering that Article 380-2 of the Code of Criminal Procedure grants the accused the right to appeal against a conviction handed down by an assize court at first instance; that the first four subparagraphs of Article 380-11 of the Code provide for the right of the accused to withdraw his or her appeal until questioned by the president of the court; that the fifth subparagraph provides that an appeal filed by the accused shall be invalid if the president of the assize court rules that the former has absconded and could not be located prior to the start of or during the course of the hearing; that these provisions pursue the objective of general interest of ensuring the appearance in person of the accused in appeal proceedings in order to enable the trial to be completed properly and for a definitive ruling to be made on the charges;

6. Considering that the contested provisions apply to accused persons who have duly filed appeals against their convictions; that they deprive such persons of the right for the case to be re-examined by the court seized on the sole grounds that, at a specific moment during the trial, they failed to comply with the obligation to appear, thereby rendering immediately enforceable the contested conviction; that these provisions violate the right to an effective judicial appeal in a manner that is disproportionate having regard to the objective of general interest pursued; that accordingly, they violate the requirements resulting from Article 16 of the 1789 Declaration; that these provisions must be ruled unconstitutional, without any requirement to examine the other grounds for challenge;

7. 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;

8. Considering that the repeal of the fifth subparagraph of Article 380-11 of the Code of Criminal Procedure shall take effect upon publication of this decision; that it shall apply in all proceedings that have not been definitively resolved at that time; that in order to enable judgments to be made in appeals filed by accused persons who have absconded, it is appropriate to stipulate that, notwithstanding the provisions of Article 380-1 of the Code of Criminal Procedure, they may be judged according to the default procedure applicable to criminal matters,

HELD:

Article 1.– The fifth subparagraph of Article 380-11 of the Code of Criminal Procedure is unconstitutional.

Article 2. – The declaration of the unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions set down by its recital 8.

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 of 12 June 2014, 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 13 June 2014.