Version en anglais - 2016-561/562 QPC

Decision no. 2016-561/562 QPC of 9 September 2016 - Mr. Mukhtar A. - [Pre-extradition Custody]


THE CONSTITUTIONAL COUNCIL, in the conditions provided for by Article 61-1 of the Constitution, received from the Cour de Cassation (criminal division, judgments nos. 3558 and 3559 of 8 June 2016) two applications for a priority preliminary ruling on the issue of constitutionality on 14 June 2016. These questions were raised on behalf of Mr. Mukhtar A. by the SCP Waquet, Farge, Hazan, Attorney at the Conseil d'État and the Cour de Cassation. They were registered with the general secretariat of the Constitutional Council respectively under no. 2016-561 QPC and no. 2016-562 QPC. They both concern the compatibility of Articles 696-11 and 696-19 of the Code of Criminal Procedure with the rights and freedoms guaranteed by the Constitution.


Having regard to the following texts:

- the Constitution;

- Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Basic Law on the Constitutional Council;

- the Code of Criminal Procedure;

- Law no. 2011-392 of 14 April 2001 on police custody;

- 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 following documents:

- the observations presented by the Prime Minister, registered on 6 July 2016;

- the observations presented on behalf of the applicant by the SCP Waquet, Farge, Hazan and by Bruno Rebstock Esq., Attorney at the Aix-en-Provence bar, registered respectively on 21 and 20 July 2016;

- the documents produced and appended to the case file;

Having heard Claire Waquet Esq., attorney at the Conseil d'État and the Cour de Cassation, Mr. Rebstock Esq. for the applicant and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 2 August 2016;
And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL CONCLUDES AS FOLLOWS:


1. It is appropriate to join the two applications for priority preliminary rulings on the issue of constitutionality in order to address them with a single decision;

2. An application for a priority preliminary ruling on the issue of constitutionality must be considered to relate to the provisions applicable to the dispute at the time when it was raised. The applicant has been subject to two extradition requests submitted to the French Government by Ukraine and subsequently by the Russian Federation. Having been detained in pre-extradition custody as part of the extradition procedures, on 22 February 2016 he filed in relation to each of them a request to the investigation chamber seeking his release. The applications for priority preliminary rulings on the issue of constitutionality were made during the appeal against the decisions to reject these requests. Accordingly, the Constitutional council has been seized in relation to Articles 696-11 and 696-19 of the Code of Criminal Procedure as in force following the enactment of the Law of 14 April 2011 mentioned above.

3. Article L. 696-11 of the Code of Criminal Procedure, as in force following the enactment of the aforementioned Law of 14 April 2011, provides that: «After notification of the extradition request, if it is decided that the individual sought should not remain free, the prosecutor general shall bring him before the first president of the court of appeal or to the sitting judge designated by him.
«The first president of the court of appeal or the sitting judge designated by him shall order the incarceration and detention in pre-extradition custody of the individual sought in the custodial facility at the seat of the court of appeal.
«However, if he considers that his representation throughout all stages of the procedure is sufficiently guaranteed, the first president of the court of appeal or the sitting judge designated by him may subject the individual sought to any of the measures provided for under Articles 138 and 142-5 until he appears before the investigation chamber. Notice of this decision shall be served verbally and shall be noted in the report, a copy of which shall be provided to him immediately. An appeal may be filed against it to the investigation chamber, which must rule within a period of five days.
«Article 696-21 shall be applicable to an individual who has been allowed to remain free or who has been placed under judicial control or under house arrest with electronic tagging if the individual intentionally breaches or fails to comply with the obligations of judicial control or house arrest with electronic tagging?.

4. Article L. 696-19 of the Code of Criminal Procedure, as in force following the enactment of the aforementioned Law of 14 April 2011, provides that: «Release may be requested at any time from the investigation chamber according to the arrangements provided for under Articles 148-6 and 148-7.
«The lawyer of the individual sought shall be summoned by registered letter with advice of delivery at least forty-eight hours in advance of the hearing. After having heard the public prosecutor and the individual sought or his lawyer, the investigation chamber shall rule as quickly as possible and no later than twenty days after receipt of the request by a judgment issued under the conditions laid down in Article 199. If a request for release is made by the individual sought within forty-eight hours of the time he was detained in pre-extradition custody, the time limit granted to the investigation chamber in order to reach a decision shall be reduced to fifteen days.
«When ordering the release of the individual sought, the investigation chamber may also as a security measure subject the interested party to any of the obligations laid down in Articles 138 and 142-5.
«Before he is released, the individual sought must inform the investigation chamber or the head of the detention facility of his address. He shall be notified that he must inform the investigation chamber by a new declaration or by registered letter with advice of delivery of any change to the declared address. He shall also be notified that any notice or service given at the last declared address shall be deemed to have reached him.
«A reference to this notification along with the declaration of address shall be made both in the report and in the document, the original version or a copy of which shall be sent without delay to the investigation chamber by the head of the detention facility?.

5. The applicant asserts that the conditions under which the first president of the court of appeal or the sitting judge designated by him is to rule on a request by the prosecutor general seeking the incarceration of an individual whose extradition has been sought violate individual freedom, freedom of movement, the right of privacy, the presumption of innocence, the right to judicial relief and the rights of the defence. In his view, the same applies to the failure to set a maximum time limit for incarceration and the time limits within which a request seeking the release of an individual incarcerated in this manner must be examined.

6. Under Article 696-11 of the Code of Criminal Procedure, the second and third subparagraphs stipulate the procedures according to which the first president of the court of appeal or the sitting judge designated by him may order the incarceration of the individual whose extradition has been sought. Within Article 696-19 of the Code of Criminal Procedure, the second and third phrases of the second subparagraph stipulate the conditions, including in particular the time limit, subject to which the investigation chamber is to rule on a request for release by the individual sought. The applications for priority preliminary rulings on the issue of constitutionality thus relate to the second and third subparagraphs of Article 696-11 of the Code of Criminal Procedure and to the second and third phrases of the second subparagraph of Article 696-19 of the Code.

? On the second and third subparagraphs of Article 696-11 of the Code of Criminal Procedure:

7. The applicant asserts that, insofar as they lay down the principle of the incarceration of the individual whose extradition has been sought without enabling the first president of the court of appeal or the judge designated by him to release the individual sought after receiving a request to order such incarceration, the contested provisions from Article 696-11 of the Code of Criminal Procedure are unnecessarily strict and in doing so violate individual freedom. According to the applicant, these provisions also disproportionately violate freedom of movement, the presumption of innocence and the right to respect for privacy. He also asserts that these provisions violate the rights of the defence as they do not provide that incarceration may only be ordered after an adversarial debate and do not allow the individual sought to be assisted by a lawyer when he is brought before the first president of the court of appeal or the judge designated by him. Finally, these provisions violate the right to effective relief due to the fact that it is not possible to challenge a decision to remand an individual in custody.

8. According to Article 16 of the Declaration of the Rights of Man and the Citizen of 1789: «A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all?. It follows that no substantial violations may be committed of the right of interested parties to seek effective relief before a court of law and that the rights of the defence must be respected, which implies in particular the existence of a fair and equitable procedure that guarantees a balance between the rights of the parties.

9. According to Article 66 of the Constitution: «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 by law?. Individual freedom, the protection of which is entrusted to the judicial authorities, cannot be impaired to an extent that is unnecessarily strict.

10. It shall be for the legislator to ensure that a balance is struck on the one hand between the prevention of breaches of public order and the search for the perpetrators of offences, both of which are necessary in order to safeguard rights and principles of constitutional standing, and on the other hand respect for other rights and freedoms guaranteed under the Constitution. These include freedom of movement and respect for privacy, which are protected by Articles 2 and 4 of the 1789 Declaration, as well as individual freedom. Breaches of these freedoms must be appropriate, necessary and proportionate having regard to the objectives pursued.

11. Pursuant to Article 696-11 of the Code of Criminal Procedure, in the event that the prosecutor general decides not to release the individual sought, the latter must be brought before the first president of the court of appeal or the sitting judge designated by him. According to the second and third subparagraphs of this Article, it will be for such a judge as the case may be to order the incarceration of the individual sought, having regard to any guarantees provided by him that he will be represented throughout all stages of the procedure. If this judge considers that the representation of the individual sought is sufficiently guaranteed, he may release the individual, subjecting him either to a measure of judicial control or placing him under house arrest with electronic tagging. An appeal may be filed against any such alternative measures to incarceration to the investigation chamber, which must rule within a period of five days.

12. First, any interpretation of the contested provisions as excluding the ability of a sitting judge hearing the request for incarceration as part of an extradition procedure to release the individual sought without any control measure where the individual concerned provides sufficient guarantees regarding his representation would be unnecessarily strict, thereby constituting a breach of individual freedom and causing a disproportionate violation of freedom of movement.

13. Secondly, respect for the rights of the defence requires that the individual brought before the first president of the court of appeal or the judge designated by him may be assisted by a lawyer and, as the case may be, made aware of the requests made by the prosecutor general.

14. Thirdly, neither the contested provisions from Article 696-11 of the Code of Criminal Procedure nor any other legislative provision provides for any specific form of appeal against the incarceration order. However, Article 696-19 of the Code of Criminal Procedure grants to an individual detained in pre-extradition custody the right to petition the investigation chamber at any time in order to request his release. On such an occasion, he may assert that the order detaining him in pre-extradition custody was unlawful. It follows that the interested party is not deprived of the ability to dispute the measure of incarceration.

15. Consequently, subject to the reservations set forth in paragraphs 12 and 13, the objections alleging that the second and third subparagraphs of Article 696-11 of the Code of Criminal Procedure violate individual freedom, freedom of movement, the rights of the defence and the right to effective relief must be rejected. Furthermore, these provisions do not violate the presumption of innocence or the right to respect for privacy, or indeed any other right or freedom guaranteed under the Constitution. Subject to the reservations set forth in paragraphs 12 and 13, they must be ruled constitutional.

? On the second and third phrases of the second subparagraph of Article 696-19 of the Code of Criminal Procedure:

16. The applicant asserts that the time limits granted to the investigation chamber under the contested provisions contained in Article 696-19 of the Code of Criminal Procedure in order to rule on a request for release by an individual detained in pre-extradition custody are excessive and that there is no maximum limit to incarceration ordered on this basis. He infers that these provisions violate individual freedom, freedom of movement, respect for privacy, the presumption of innocence, the right to judicial relief and the rights of the defence.

17. In the first place, regarding the deprivation of freedom, the right to effective judicial relief mandates that the court be required to rule as quickly as possible. It is for the judicial authorities, acting under the control of the Cour de Cassation, to oversee compliance with this requirement.

18. The first phrase of the second subparagraph of Article 696-19 of the Code of Criminal Procedure provides that the investigation chamber must rule as quickly as possible and no later than twenty days after receipt of a request from an individual incarcerated in relation to extradition procedures seeking his release. According to the second phrase of this subparagraph, this time limit is reduced to fifteen days if the request for release was filed within forty-eight hours of the time when the individual was detained in pre-extradition custody. These maximum time limits are not excessive, having regard in particular to the need for the court to ascertain whether the individual has provided sufficient guarantees that he will be represented throughout all stages of the procedure .

19. Secondly, neither Article 696-19 nor any other legislative provision stipulates a maximum duration for detention in pre-extradition custody. In addition, there is no requirement for the courts to review regularly whether the detention is warranted.

20. However, the individual sought may apply to the investigation chamber seeking his release at any stage of the procedure, whether before the courts or the administrative authorities.

21. However, individual freedom could not be considered to be safeguarded if the judicial authorities did not control the duration of incarceration in response to such a request, taking account in particular of any appeals filed by the individual and the time limits within which the judicial and administrative authorities have reached a decision. Such a control requires that the judicial authorities allow the request for release if the total duration of detention in relation to the extradition procedure is unreasonable.

22. Subject to the reservation set out in paragraph 21, the objections alleging a violation of Article 66 of the Constitution and Article 16 of the 1789 Declaration must be rejected. The same applies to the objections alleging a violation of freedom of movement, respect for privacy and the presumption of innocence.

23. Consequently, subject to the reservation laid down in paragraph 21, the second and third phrases of the second subparagraph of Article 696-19 of the Code of Criminal Procedure, which do not violate any other right or freedom guaranteed by the Constitution, must be ruled constitutional.


THE CONSTITUTIONAL COUNCIL RULES:


Article 1.- Subject to the reservations set out in paragraphs 12 and 13, the second and third subparagraphs of Article 696-11 of the Code of Criminal Procedure as in force following the enactment of Law no. 2011-392 of 14 April 2011 on police custody are constitutional.

Article 2.- Subject to the reservation set out in paragraph 21, the second and third phrases of the second subparagraph of Article 696-19 of the Code of Criminal Procedure as in force following the enactment of Law no. 2011-392 of 14 April 2011 on police custody are constitutional.

Article 3.- This decision shall be published in the Journal Officiel of the French Republic and notified under the terms set down in Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.