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Decision no. 2011-125 QPC of 6 May 2011

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Mr Abderrahmane L. [Transfer into the custody of the Public Prosecutor]

On 4 March 2011, 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, decree no. 1388 of 1 March 2011) raised by Mr Abderrahmane L., regarding the compatibility of Articles 393 and 803-2 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 Law no. 75701 DC of 6 August 1975 amending and supplementing certain provisions of the Code of Criminal Procedure, including in particular Article 7;

Having regard to Law no. 8182 of 2 February 1981 to reinforce the security and protect the freedom of persons, including in particular Articles 47 and 51, along with decision no. 80127 DC of the Constitutional Council of 20 January 1981;

Having regard to decision no. 201014/22 QPC of the Constitutional Council of 30 July 2010;

Having regard to decision no. 2010-80 QPC of the Constitutional Council of 17 December 2010;

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 Esq. Éric Plouvier, Attorney at the Paris Bar, registered on 21 and 23 March 2011;

Having regard to the observations of the Prime Minister, registered on 22 March and 6 April 2011;

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

Having heard Esq. Plouvier on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 27 April 2011;

Having heard the Rapporteur;

1. Considering that Article 393 of the Code of Criminal Procedure provides: "In misdemeanour cases, after having established the identity of the person deferred to him, having informed him of the matters of which he is charged with, and having recorded his statement if he so requests, the Public Prosecutor may, if he considers that a judicial investigation is not necessary, proceed as stated under articles 394 to 396.

"The Public Prosecutor then informs the person brought before him that he has the right to the assistance of a counsel of his choice or of a counsel appointed ex officio for him. The counsel chosen, or the president of the local bar in the event of an application for an appointment ex officio, is informed forthwith.

"The counsel may consult the file immediately and freely communicate with the defendant.

" Mention of these formalities is entered into the official record under penalty of nullity of the proceedings";

2. Considering that Article 803-2 of the same Code provides: "Any person who at the request of the Public Prosecutor has been transferred to court custody following police custody appears before this prosecutor, or where an investigation is being opened, before the investigating judge seised with the case, on the same day. The same applies if the person is transferred to the investigating judge at the end of a period of police custody in accordance with a rogatory letter or if the person is brought before a judge in answer to a summons or an arrest warrant";

3. Considering that, according to the applicant, Article 8032, which is applicable to any transfer to court custody following police custody, and Article 393, relating to the summons by official record and the procedure governing immediate appearance, have the effect of permitting a person who is suspected of having committed a misdemeanour to be brought before a Public Prosecutor following his transfer from police custody who may record his statements and use them during the later stages of the prosecution without this person having had access to the case file or being represented by counsel; that, accordingly, these provisions violate the right to a defence and the principle of the separation of powers;

4. Considering that pursuant to Article 34 of the Constitution, it is for statute to determine the rules governing criminal procedure; that pursuant to Article 66: “No one shall be arbitrarily detained. The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle under the conditions laid down in law”;

5. Considering that pursuant to Article 34 of the Constitution the legislator is under an obligation to specify the scope of criminal law; that, in relation to criminal procedure, this requirement demands in particular that it avoid unnecessary rigour in the search for the authors of misdemeanours;

6. Considering moreover that it is incumbent upon the legislator to achieve a balance between, on the one hand, preventing breaches of public order and bringing offenders to justice, both of which are necessary to safeguard rights and principles with constitutional status, and on the other, the exercise of freedoms guaranteed under the Constitution; and that these freedoms include respect for the right to a defence resulting from Article 16 of the 1789 Declaration and the individual liberty that Article 66 of the Constitution places under the protection of the Judicial Authority;

WITH RESPECT TO ARTICLE 8032:

7. Considering that the transfer of the person to court custody following police custody under the terms of Articles 63(3) and 77(3) of the Code of Criminal Procedure and in accordance with the procedures specified under Article 8032 is a custodial measure that is necessary in order to prosecute offences and to ensure that the persons who are being prosecuted appear before the courts; that, nonetheless, it must be subject to the appropriate guarantees;

8. Considering that the Judicial Authority include both magistrates as well as public prosecutors; that upon expiry of the period of police custody, the Public Prosecutor may request that the person be remanded in custody to appear in court on the same day; that the period falling between the end of the period in police custody and the time when the person appears before before him is placed under his control; that the judge may decide when he is to appear and when he is to be released; that in the event that the procedure for immediate appearance is implemented according to the arrangements provided for under Articles 395 et seq of the Code of Criminal Procedure, the person is immediately placed under the control of the court that disposes of these powers; that, in its aforementioned decision of 17 December 2010 on Article 8033 of the Code of Criminal Procedure, the Constitutional Council ruled that a deprivation of freedom that was necessary in order for a person to be brought before a judge following his release from police custody or, depending on the circumstances, the next day, was constitutional; that it follows from the above that in permitting a person transferred to court custody following police custody to be brought before a public prosecutor on the same day, Article 8032 of the Code of Criminal Procedure does not violate the aforementioned constitutional requirements;

WITH RESPECT TO ARTICLE 393:

9. Considering that Articles 47 and 51 of the aforementioned Law of 2 February 1981 have, for the former, repealed Articles 71 to 713 of the Code of Criminal Procedure which permitted the Public Prosecutor to question a person transferred to him and to remand him in custody until his appearance in court and, for the latter, reformulated Article 393 of the Code; that in doing so they have eliminated the right, established under the aforementioned Law of 6 August 1975 for the person brought before the Public Prosecutor with a view to being prosecuted before the Criminal Court from benefiting from the presence of lawyer;

10. Considering that the Constitutional Council specifically examined these provisions in recital 34 to its aforementioned decision of 20 January 1981; that it ruled that they were constitutional in Article 2 of the operative part of this decision;

11. Considering, nonetheless, that in its aforementioned decision of 30 July 2010, the Constitutional Council ruled that Articles 62, 63, 631, 634(1)-(6) and 77 of the Code of Criminal Procedure were unconstitutional, in particular insofar as they permitted a person in police custody to be questioned without benefiting from the actual presence of a lawyer; that this decision amounts to a change in legal circumstances that justifies the re-examination of the contested provision;

12. Considering, on the one hand, that Articles 40 et seq of the Code of Criminal Procedure grant the Public Prosecutor the power to initiate a prosecution and, in this case, to decide on the manner of prosecution that appears to him to be the most appropriate for the nature of the case, to implement and choose an alternative to prosecution, or alternatively to discontinue proceedings; that the detention of the person being prosecuted by the Public Prosecutor in accordance with Article 393 has the sole objective of permitting the prosecuting authority to inform the person being prosecuted of the decision taken regarding the initiation of public action and also to inform him on the subsequent stages of the proceedings; that the respect for the right to a defence does not require that the person being prosecuted have access to the case file before receiving this notification and that he be assisted by a lawyer during that stage of the proceedings;

13. Considering, on the other hand, that Article 393 requires the Public Prosecutor to establish the identity of the person brought before him, to inform him of the offence he has been charged with, to record a statement if he asks to make one and, in the event that he appears immediately or according to the official record, to inform him of his right to be assisted by a lawyer during the subsequent stages of the proceedings; that this provision, which does not permit the Public Prosecutor to question the interested party, could not authorise the former to take statements from the latter regarding the facts at issue in the prosecution in the official record mentioning the formalities of his appearance without violating the rights of the defence;

14. Considering that it follows from the above that, subject to the reservation stated in the previous recital, Article 393 of the Code of Criminal Procedure does not violate the rights of the defence;

15. Considering that Articles 393 and 8032 of the Code of Criminal Procedure do not violate any right or freedom guaranteed under the Constitution,

H E L D:

Article 1. Subject to the reservation set out in recital 13, Article 393 of the Code of Criminal Procedure is constitutional.

Article 2. Article 8032 of the Code is constitutional.

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 5 May 2011, 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 6 May 2011.