On June 29th 2010 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality transmitted by the Cour de cassation (decision N° 12105 of June 25th 2010), made by Messrs Samir M and Mohamed E pertaining to the conformity of Article 323 of the Customs & Excise Code with the rights and freedoms guaranteed by the Constitution.
THE CONSTITUTIONAL COUNCIL
Having regard to the Constitution;
Having regard to Ordinance n° 58-1067 of November 7th 1958 as amended (Institutional Act on the Constitutional Council);
Having regard to decision n° 2010/14-22 QPC of the Constitutional Council dated July 30th 2010;
Having regard to the Customs & Excise Code;
Having regard to the Regulation of February 4th 2010 as to 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 of the Prime Minister, registered on July 21st 2010;
Having regard to the observations on behalf of Mr M made by the SCP Capedevielle et Larié, Attorneys at the Bayonne Bar, registered on August 9th 2010;
Having regard to the documents produced and appended to the case file;:
Me Colette Capdevieille for the Applicants, and Mr Thierry-Xavier Girardot, representing the Prime Minister, were heard by the Council in open court on September 14th 2010;
Having heard the Rapporteur;
ON THE FOLLOWING GROUNDS
Article 323 of the Customs & Excise Code provides : " The commission of offences under Customs & Excise statutes and regulations may be ascertained by a Customs & Excise agent or an agent from any other Administration.
Agents who have ascertained the commission of an offence under C&E statutes and regulations are vested with the power to seize all items liable to be confiscated, to retain all and any consignments and all other documents pertaining to the items seized and to seize as a preventive measure all items intended to ensure the payment of such penalties as may be imposed.
They may only retain offenders when said offenders have been apprehended in the act of committing an offence.
The Public Prosecutor shall be immediately informed.
The length of said retention shall not exceed 24 hours unless extended for a further 24 hours with the authorization of the Public Prosecutor.
During the period of retention the Public Prosecutor may personally visit the premises to verify the manner in which said retention is being proceeded with and be shown all official records and registers provided for to this end. He may require the intervention of a doctor if he deems this necessary.
The agents referred to above shall indicate in their official record of ascertainment, the duration of questioning and rest periods between questioning, the date and hour of the beginning and end of the period of retention.
This information shall also be entered in a special register kept on the C & E premises.
When persons retained are remanded in custody upon the expiry of the period of retention, the duration of said retention shall be included in the period of remand."
The Applicants argue that these provisions, which deprive the person retained by the Customs & Excise Authorities of the assistance of a lawyer, infringe the rights of the defence.
Article 7 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims :" No man shall be accused, arrested or detained except in the cases and the manner prescribed by law. Whosoever shall solicit, expedite, execute or cause to be executed any arbitrary order shall be punished; but any citizen summoned or apprehended pursuant to the law shall obey forthwith: resistance shall render him guilty". Article 9 proclaims : Insofar as every man is presumed innocent until found guilty, if it is deemed indispensable to arrest him, any undue harshness not needed to secure his person shall be severely curbed by the law". Article 16 proclaims "Any society is which no provision is made for guaranteeing rights, or for defining the separation of powers, has no Constitution".
Under Article 34 of the Constitution it is incumbent upon Parliament to determine the scope of criminal law. In cases of criminal procedure and C&E procedures, compliance this requirement is necessary in particular to avoid any unnecessary harshness when seeking to apprehend offenders.
It is furthermore the task of Parliament to reconcile on the one hand the need to prevent breaches of the peace and to seek out offenders, both of which are essential for the safeguard of rights and principles of constitutional value, with on the other hand the need to ensure the exercising of constitutionally guaranteed freedoms. Such freedoms include respect for the rights of the defence, which derives from Article 16 of the Declaration of 1789.
Article 1 of the Customs & Excise Code vests Customs & Excise agents and agents of any other Administration with the power to ascertain the commission of offences under C&E Statutes and regulations. 2° of this same Article allows them to seize all items liable to be confiscated, to retain all documents pertaining to the items seized and to seize as a preventive measure all items intended to ensure the payment of such penalties as may be imposed. These provisions do not infringe any constitutionally guaranteed right or freedom.
3° of Article 323 of the Customs & Excise Code allows agents to "retain offenders" when such persons have been caught in the act of committing an offence. This provision applies to all C&E offences irrespective of the seriousness thereof. It authorises the questioning of a person who has been retained by C&E agents. Article 336 of the same Code provides: " formal C&E records drawn up by two C&E agents or agents of any other Administration shall be conclusive.. unless otherwise proved, as regards the accuracy and the authenticity of admissions and statements which they record". 3° of Article 323 does not allow the person retained against his will to have the benefit of the effective assistance of a lawyer while undergoing questioning. Such a restriction of the rights of the defence is imposed in a general manner without taking into consideration particular circumstances likely to justify the same in order to collect or keep evidence or ensure the protection of people. The person retained by C&E agents is not informed of his right to remain silent.
In these conditions, it cannot be said that the reconciliation on the one hand of the need to prevent breaches of the peace and to seek out offenders, with on the other hand, the need to ensure the exercising of constitutionally guaranteed freedoms is carried out in a balanced manner. Hence 3° of Article 323 of the Customs & Excise Code infringes Articles 9 and 16 of the Declaration of 1789 and must be held to be unconstitutional.
The Constitutional Council is not vested with any power of appraisal similar to that vested in Parliament. It is not incumbent upon the Council to indicate the amendments to the rules of Customs & Excise procedure for dealing with offenders needed to remedy this ascertained unconstitutionality. Although in principle a finding of unconstitutionality must inure to the benefit of the party applying for a priority preliminary ruling on the issue of constitutionality, the immediate repeal of the challenged provisions would fail to oomply with the objectives of preventing breaches of the peace and seeking out offenders and would entail patently disproportionate consequences. Repeal of said Article must therefore be postponed until July 1st 2011 in order to allow Parliament to remedy this unconstitutionality. No measures taken under these same provisions shall be challenged on the grounds of the unconstitutionality ascertained herein.
Article 1: 1° and 2° of Article 323 of the Customs & Excise Code are constitutional.
Article 2: 3° of Article 323 of the Customs & Excise Code is unconstitutional.
Article 3: The finding of unconstitutionality set out in Article 2 above shall take effect on July 1st 2011 in the conditions specified in paragraph 9 hereinabove.
Article 4: This decision shall be published in the Journal officiel of the French Republic and notified in the conditions provided for in Section 23-11 of the Ordinance of November 7th 1958 referred to hereinabove.
Deliberated by the Constitutional Council sitting on September 21st 2010 and composed of Messrs Jean-Louis DEBRE, President, Messrs Jacques BARROT, Mrs Claire BAZY MALAURIE, Messrs Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Messrs Hubert HAENEL and Mr Pierre STEINMETZ.
Announced on September 22nd 2010.