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12 questions to begin with

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1- What is an "application for a priority preliminary ruling on the issue of constitutionality" ?

An application for a priority preliminary ruling on the issue of constitutionality is the right for any person who is involved in legal proceedings before a court to argue that a statutory provision infringes rights and freedoms guaranteed by the Constitution.

The priority preliminary ruling on the issue of constitutionality is provided for by Article 61-1 of the Constitution under the constitutional reform of July 23rd 2008.

Prior to this reform, it was impossible to challenge the constitutionality of a statute which had come into force. From now on, persons involved in legal proceedings will be vested with this new right.

2- What is meant by "statutory provision" ?

This means a provision in a law passed by the body entitled to legislate. It is therefore basically a law enacted by Parliament (statute, Institutional Act or Ordinance ratified by Parliament). It may also be a law of the land of New Caledonia.

Ordinances which have not been ratified, Decrees, Government Orders or individual decisions cannot therefore be the object of an application for a priority preliminary ruling on the issue of constitutionality. (These are administrative acts which come under the jurisdiction of Administrative courts).

3- What is meant by "rights and freedoms guaranteed by the Constitution" ?

The rights and freedoms guaranteed by the Constitution are the rights and freedoms found in :

- the Constitution of October 4th 1958 as amended on several occasions : for example, the judicial authority which is the guardian of the freedom of the individual (Article 66) ;

- the texts referred to by the Preamble to the Constitution of October 4th 1958, namely :

- the Declaration of the Rights of Man and the Citizen of 1789,

- the Preamble to the Constitution of 1946,

- the fundamental principles recognized by the laws of the Republic (to which the Preamble to the Constitution of 1946 refers) ; for instance freedom of association or freedom of education,

- the Charter for the Environment of 2004.

4- Why is this ruling said to be " priority preliminary" ?

Institutional Act n° 2009-1523 of December 10th 2009 concerning the application of Article 61-1 of the Constitution has given priority status to the issue of constitutionality.

This means firstly that, when it is raised before a court of first instance or a court of appeal, the issue must be addressed without delay. The time devoted to dealing with the priority preliminary ruling on the issue of constitutionality will be part of the time given to the proceedings overall and must not delay the latter.

Secondly, when the court is asked to rule on arguments which challenge both the constitutionality of a statute (priority preliminary ruling on the issue of constitutionality) and the failure of said statute to comply with international treaties and agreements (plea of failure to comply with international obligations) the court shall be required to address the issue of constitutionality in priority.

5- Does one need to have recourse to a lawyer to make an application for a priority preliminary ruling on the issue of constitutionality ?

The rules governing the making of an application for a priority preliminary ruling on the issue of constitutionality comply with the rules applicable before the court hearing the case. When the presence of a lawyer is required before the court, the application for a priority preliminary ruling on the issue on constitutionality can only be made by a lawyer.

However, in courts where a party is allowed to defend himself without a lawyer, it is possible for this party to directly apply for a priority preliminary ruling on the issue of constitutionality.

NB : The application for a priority preliminary ruling on the issue of constitutionality must always be made in a separate written document containing the reasons for this application (even in courts where proceedings are oral).

6- When can an application for a priority preliminary ruling on the issue of constitutionality be made ?

It may be made during any court proceedings before a normal court of law (coming under the supervisory jurisdiction of the Cour de cassation) or Administrative court (coming under the supervisory jurisdiction of the Conseil d'Etat).

The application may be made at first instance, before a court of appeal or before the Cour de cassation.

7- What are the conditions governing the making of such an application ?

Any court under the supervisory jurisdiction of the Conseil d'Etat or the Cour de cassation may be asked to rule on an application for a priority preliminary ruling on the issue of constitutionality. Only the Cour d'assises cannot be asked to make such a ruling. However, in criminal matters, this application may be made prior to trial, at the level of the Investigating Magistrate during the preliminary investigation, or after trial before the Cour d'assises, on appeal or before the Cour de cassation.

The application for a priority preliminary ruling on the issue of constitutionality must be made in writing and reasons given for this application. It must always be separate from any other submissions put to the court in the proceedings in question.

8- Can a person involved in legal proceedings make such an application directly to the Constitutional Council ?

No. An application for a priority preliminary ruling on the issue of constitutionality must be made during court proceedings.

The court called upon to hear such proceedings will, when such an application is made, promptly look into this matter. It will decide whether the application is admissible and if the conditions laid down by the Institutional Act have been met.

If these conditions have been met, the court will then transmit the application to the Conseil d'Etat or the Cour de cassation.

The Conseil d'Etat or the Cour de cassation will then proceed to look more closely at the issue raised and decide whether or not to transmit the application to the Constitutional Council

9- What conditions must be met for an application to be referred to the Constitutional Council ?

There are three conditions set out in Article 61-1 of the Constitution :

- the challenged statutory provision must apply to the litigation or proceedings involved, or be the basis of such proceedings ;

- the challenged statutory provision has not previously been found to be constitutional by the Constitutional Council ;

- the issue raised is a new one or is of a serious nature.

10- Can one challenge a refusal by a court to refer an application to the Constitutional Council ?

Refusal by a court of first instance or a court of appeal to transmit an application for a priority preliminary ruling on the issue of constitutionality can only be challenged when lodging an appeal (before a court of appeal, the Conseil d'Etat or the Cour de cassation) against the decision on the merits handed down by the court hearing the case.

No appeal may be lodged against refusal by the Conseil d'Etat or the Cour de cassation to refer the application to the Constitutional Council.

11- What are the consequences of a decision of the Constitutional Council ?

If the Constitutional Council holds that the challenged statutory provision is constitutional, this provision will continue to exist in the national legal order. The court must apply this provision, unless it finds it to be incompatible with a provision in an international treaty or the law of the European Union.

If the Constitutional Council holds that the challenged statutory provision is unconstitutional, this decision will in effect repeal said provision. It will no longer exist in the national legal order.

12- When will this reform come into force ?

It will come into force on March 1st 2010.

It will apply to proceedings underway at said date. However only those applications for a preliminary ruling on the issue of constitutionality made as from March 1st 2010 in a written, separate and reasoned memorandum will be admissible.