Version en anglais - 2017-625 QPC

Decision no. 2017-625 QPC of 07 April 2017 - Mr. Amadou S. - [Individual terrorist undertaking]

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 25 January 2017 by the Cour de cassation (Criminal Division, Decision no. 347 of 25 January 2017), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for Mr. Amadou S. by Mr. Michaël Bendavid, Esq., attorney admitted to the Paris bar. It was recorded by the General Secretariat of the Constitutional Council under number 2017-625 QPC. It relates to compliance with the rights and liberties that the Constitution guarantees under Article 421-2-6 of the Criminal Code, in its drafting pursuant to Law number 2014-1353 of 13 November 2014, reinforcing the provisions related to the fight against terrorism and Article 421-5 of the same Code.

In light of the following texts:
- the Constitution;
- Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Organic Law on the Constitutional Council;
- the Criminal Code;
- Law number 2014-1353 of 13 November 2014 reinforcing the provisions related to the fight against terrorism;
- Decision number 86-213 DC of the Constitutional Council of 03 September 1986;
- the Regulation of 04 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;
In light of the following items:
- the observations filed on behalf of the applicant by Mr. Bendavid Esq., registered on 21 February and 08 March 2017;
- the observations presented by the Prime Minister, registered on 21 February 2017;
- the observations in response presented for the association the Ligue des Droits de l'Homme [League of Human Rights] by the firm Spinosi et Sureau, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 21 February and 08 March 2017;
- the documents produced and attached to the case file;
Having heard Mr. Bendavid, Esq. for the applicant, Mr. François Sureau, Esq., attorney at the Conseil d'État and the Cour de cassation, for the intervening party, and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 28 March 2017;
And having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDED ON THE FOLLOWING:


1. A priority matter of constitutionality must be considered as relating to the provisions applicable to the dispute at the time it was raised. This matter was raised during the course of criminal proceedings for events committed in 2015. Accordingly, the Constitutional Council has been asked to decide on Article 421-5 of the Criminal Code as written pursuant to the Law of 13 November 2014 mentioned herein above.

2. Article 421-2-6 of the Criminal Code, as written pursuant to the Law of 13 November 2014, provides that:
"I. - What constitutes an act of terrorism is preparing to commit one of the infractions mentioned in part II when the preparation of said infraction is intentionally related to an individual undertaking that has the goal of seriously disturbing public order by intimidation or terror and is characterised by:
"Section 1° - possessing, searching for, obtaining or making objects or substances that create a danger to others;
"Section 2° - and one of the following material facts:
"a) gathering information on locations or persons that would allow for carrying out harmful actions in these locations or inflicting damage to these persons or staking out these locations or these persons;
"b) training or learning how to use arms in any form of combat, fabricating or using explosive, incendiary, nuclear, radiological, biological or chemical substances, or learning how to fly aircraft or navigate ships;
"c) regularly consulting one or more public online communication services or possessing documents that directly induce the commission of terrorist acts or in defence of them;
"d) travelling abroad to a terrorist group operations theatre.
"II. - Part I involves preparing to commit the following infractions:
"Section 1° - a terrorist act described in Section 1° of Article 421-1;
"Section 2° - a terrorist act described in Section 2° of Article 421-1 when the act consists in destroying, damaging or deteriorating by explosive or incendiary substances carried out at times and in locations that may result in harm to the physical well-being of one or several persons;
"Section 3° - a terrorist act described in Article 421-2 when the act may result in harm to the physical well-being of one or several persons;

3. Article 421-5 of the Criminal Code, in this same writing, establishes:
"The terrorist acts defined in Articles 421-2-1 and 421-2-2 are punishable by ten years of imprisonment and a fine of 225,000 euros.
"Leading or organising the group or the arrangement defined in Article 421-2-1 is punishable by twenty years of criminal detention and a fine of 500,000 euros.
"Attempting the infraction defined in Article 421-2-2 is punishable by these same penalties.
"The act of terrorism defined in Article 421-2-6 is punishable by ten years of imprisonment and a fine of 150,000 euros.
"The two first Subparagraphs of Article 132-23 relate to the minimal imprisonment periods applicable to the infractions established in this Article."

4. The applicant and the intervening party claim that these provisions, which establish an offence of "individual terrorist undertaking", infringe on the principle that offences and penalties must be defined by law insofar as the elements that make them up are not precisely defined and that they criminalise a great number of behaviours. According to them, the provisions also infringe on the principle of the necessity of offences and penalties insofar as, on the one hand, the legislature punishes events that may not lead to the commission of acts of terrorism and that, on the other, the contested infraction only refers to an intention. Finally, these provisions infringe on the principle of the proportionality of penalties.

5. Consequently, the priority matter of constitutionality relates to Article 421-2-6 of the Criminal Code and the fourth Subparagraph of Article 421-5 of the same Code.

On the claim of infringement on the principle that offences and penalties must be defined by law:

6. According to Article 8 of the Declaration of the Rights of Man and the Citizen of 1789: "No one may be punished except under a law that has been established and enacted prior to the time the offence is committed, and which is legally applied". Pursuant to Article 34 of the Constitution: "The law shall establish the rules concerning... the determination of crimes and offences as well as their applicable penalties". Pursuant to Article 34 of the Constitution, as well as the principle that offences and penalties must be defined by law according to Article 8 of the 1789 Declaration, the legislature is under the obligation to determine the scope of criminal law and to define crimes and offences in sufficiently clear and precise terms to avoid arbitrariness;

7. The contested provisions punish the act of preparing, individually, for the commission of a terrorist act. This offence occurs when several events take place.

8. On the one hand, the person must prepare to commit one of the following infractions: a voluntary attack on the life or integrity of a person, an abduction, a kidnapping or a hijacking of an aircraft, ship or any other means of transport, defined in Book II of the Criminal Code; destroying, damaging or deteriorating something by explosive or incendiary substances carried out at times and in locations that may result in harm to the physical well-being of one or several persons, defined in Book III of the Criminal Code; introducing into the atmosphere, on the ground, in the soil, in foods or food components, or in the water, including the territorial waters, a substance that may cause harm to the health of persons, animals or the natural habitat, when this act may result in harm to the physical well-being of one or several persons. Furthermore, preparing to commit this infraction must be intentionally related to an individual undertaking that has the goal of seriously disturbing public order by intimidation or terror.

9. On the other hand, this preparation must be characterised by two material facts. The person must possess, search for, obtain or make objects or substances that create a danger to others. This person must also have committed one of the following: gathering information on locations or persons that would allow for carrying out harmful actions in these locations or inflicting damage to these persons or staking out these locations or these persons; training or learning how to use arms in any form of combat, fabricating or using explosive, incendiary, nuclear, radiological, biological or chemical substances, or learning how to fly aircraft or navigate ships; regularly consulting one or more public online communication services or possessing documents that directly induce the commission of terrorist acts or in defence of them; travelling abroad to a terrorist group operations theatre.

10. First of all, on the one hand, the infractions of preparing to commit the contested offence are clearly defined by Paragraph II of Article 421-2-6 and by the provisions of the Criminal Code that this Article refers to. On the other hand, as the Constitutional Council decided in its Decision of 03 September 1986 mentioned herein above, the notion of an individual undertaking that has the goal of seriously disturbing public order by intimidation or terror is described in sufficiently precise terms that it does not infringe on the principle that offences and penalties must be defined by law

11. Secondly, the material facts that characterise a preparatory act are also defined with sufficient precision so that criminal behaviours are clearly identifiable.

12. It follows from the foregoing that the claim of infringement on the principle of offences and penalties being defined by law should be set aside.

On the claim of infringement on the principle of the necessity of offences and penalties and the proportionality of penalties:

13. Article 8 of the 1789 Declaration provides that: "The law shall establish punishments only as strictly and obviously necessary... ". Article 61 of the Constitution does not grant the Constitutional Council general powers of assessment and judgement of the same nature as those belonging to the Parliament, but only grants it the competence to decide on the constitutionality of the contested laws under its consideration. If it is necessary to inflict penalties related to an infraction under the legislature's power of assessment, it falls on the Constitutional Council to ensure that there is no manifest disproportionality between the infraction and the penalties incurred. The legislature may not, without infringing on the principle of the necessity of offences and penalties, only punish criminal or dishonest intent.

14. First of all, the contested provisions do not punish the execution or the beginning of a criminal or dishonest act, but the preparatory acts to these.

15. However, on the one hand, the legislature has limited the scope of the contested offence to preparatory acts to the commission of an infraction that may harm any human person and falls within a terrorist act.

16. On the other hand, the offence punished by the contested provisions may only have occurred if several material facts took place and if it has been established that these facts characterise the preparation for an infraction of a terrorist nature. In this case, the proof that the individual that prepares for an infraction in relation to an individual terrorist undertaking cannot, without infringing on the principle of the necessity of offences and penalties, only punish material acts considered as preparatory acts, as described in Sections 1° and 2° of Paragraph I of Article 421-2-6. Finally, these material facts must corroborate this intention.

17. However, by including the material facts that constitute a preparatory act of "searching for ... objects or substances that create a danger to others", without defining the acts that constitute such a search within the framework of an individual terrorist undertaking, the legislature allowed punishment for actions that have not materialised in, by themselves, the desire to prepare for an infraction.

18. If follows from the foregoing that the words "searching for", as appearing in Section 1° of Paragraph I of Article 421-2-6 are manifestly contrary to the principle of the necessity of offences and penalties. They should be declared unconstitutional. However, in regard to the gravity particular to acts of a terrorist nature and when these contested provisions punish only preparatory acts for committing an infraction, the rest of Article 421-2-6, subject to the conditions defined in Paragraph 16, does not infringe on the principle of the necessity of offences and penalties.

19. Secondly, by imposing a punishment for preparing for acts that may harm any human person in an individual undertaking that has the goal of disturbing public order by intimidation or terror, that is punishable by ten years of imprisonment and a fine of 150,000 euros, the legislature did not institute a manifestly disproportionate penalty. The claim of infringement on the principle of the proportionality of penalties should be set aside.

20. The rest of Article 421-2-6 of the Criminal Code, subject to the conditions defined in Paragraph 16, and the fourth Subparagraph of Article 421-5 of the same Code, which do not infringe on any other right or liberty guaranteed by the Constitution, should be declared constitutional.

On the effects of the ruling of unconstitutionality:

21. According to the second paragraph of Article 62 of the Constitution: «A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the date of publication of the Constitutional Council's Decision or at a later date stipulated in this Decision. The Constitutional Council determines the conditions and the limits according to which the effects produced by the provision may be challenged". In principle, the declaration of unconstitutionality should benefit the individual who brought up this priority matter and the provision declared unconstitutional may not be applied in proceedings pending on the date of publication of the Constitutional Council's Decision. However, the provisions of Article 62 of the Constitution provide the Constitutional Council with the power 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.

22. In this case, no motive should justify a delay of its effects of unconstitutionality. This should take effect from the date of the publication of this Decision.

THE CONSTITUTIONAL COUNCIL RULES:

Article 1. - The words "searching for", as appearing in Section 1° of Paragraph I of Article 421-2-6 of the Criminal Code as written pursuant to the Law number 2014-1353 of 13 November 2014 reinforcing the provisions related to the fight against terrorism are unconstitutional.

Article 2. - The declaration of unconstitutionality of this Article 1 shall take effect under the conditions set out in Paragraph 22 of this Decision.

Article 3. - The fourth Subparagraph of Article 421-5 of the Criminal Code as written pursuant to the Law number 2014-1353 of 13 November 2014 reinforcing the provisions related to the fight against terrorism is constitutional.

Article 4. - Subject to the conditions defined in Paragraph 16, the other provisions of Article 421-2-6 of the Criminal Code as written pursuant to the Law number 2014-1353 of 13 November 2014 reinforcing the provisions related to the fight against terrorism are constitutional.

Article 5. - This decision shall be published in the Journal officiel of the French Republic and notified under the conditions provided for in Article 23-11 of the Ordinance of 7 November 1958 referred to herein above.

Deliberated by the Constitutional Council in its session of 06 April 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Announced on 07 April 2017.