On May 7th 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 (decisions n° 12006 and 12007 of May 7th 2010), application made respectively by Mr Stéphane A. and Marc PLANTEGENEST and Mr Francis H. pertaining to the conformity of Article L.7 of the Electoral 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 the Electoral Code and in particular Article 30 thereof;
Having regard to the Criminal Code;
Having regard to Act n° 95-65 of January 19th 1995 pertaining to the financing of political activities;
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 on behalf of Mr H. made by the SCP Ortscheidt, Attorney at the Conseil d'Etat and the Cour de cassation, registered on May 14th 2010;
Having regard to the observations on behalf of Mr P. made by Me Patrick Tabet, Attorney at the Paris Bar and the Courts of Saint-Pierre-et-Miquelon, registered on May 19th 2010;
Having regard to the observations on behalf of Mr A. made by the SELARL Flécheux et Associés, Attorneys at the Paris Ba,r registered on May 20th 2010;
Having regard to the observations of the Prime Minister, registered on May 20th 2010;
Having regard to the further observations on behalf of Mr P. made by Me Patrick Tabet, registered on May 26th 2010
Having regard to the documents produced and appended to the case file;:
Attorneys Xavier Flécheux for Mr A., Virginie Colin for Mr P., Jérôme Ortscheidt for Mr H. and Mrs Sophie Rimeu, representing the Prime Minister, were heard by the Council in open court on June 2nd 2010
Having heard the Rapporteur;
ON THE FOLLOWING GROUNDS
The two applications transmitted by the Cour de cassation both concern the same statutory provision and as such they will be joined together and will be the object of one single decision
Article L.7 of the Electoral Code provides: "Persons convicted of the commission of one of the offences provided for by Articles 432-10 to 432-16, 433-1, 433-2, 433-3 and 433-4 of the Criminal Code or of the offence of receiving the proceeds of one of said offences as defined by Articles 321-1 and 321-2 of the Criminal Code shall not, for a period of five years from the date on which said conviction becomes final, be entered on the electoral roll".
The parties lodging the application claim that these provisions infringe the principle of the necessity and tailoring of punishments guaranteed by Article 8 of the Declaration of the Rights of Man and the Citizen of 1789.
Article 8 of the Declaration proclaims : "The Law shall provide for such punishments as are strictly and obviously necessary, and no one shall be punished otherwise than under a law passed and promulgated before the commission of the offence, and lawfully applied to the same". The principle of the tailoring of punishments which derives from this Article implies that the punishment involving the prohibition of the entering of the name of the offender on the electoral roll and the resulting incapacity for holding public elective office may only be applied if a judge has expressly imposed said punishment, taking into account the specific circumstances of the case in hand.
The prohibition of entry of the name of the offender on the electoral roll laid down by Article L.7 of the Electoral Code is intended in particular to inflict a heavier punishment for certain acts when committed by persons vested with public authority, in charge of a public service mission or holders of elective public office. This punishment imposes an incapacity for holding elective public office for a period of five years. It is thus a measure which constitutes a punishment. This punishment which deprives the offender of the right to vote automatically accompanies various criminal convictions without the judge who decides on such measures having to expressly impose the same. He cannot vary the length of the period involved. Even if the offender may, in the conditions set out in paragraph 2 of Article 132-21 of the Criminal Code, see all or part of this prohibition immediately lifted, this possibility is not as such sufficient to ensure compliance with the requirements which derive from the principle of the tailoring of punishments. Article L.7 of the Electoral Code thus fails to comply with this principle as must he held to be unconstitutional.
The repeal of Article L.7 of the Electoral Code will enable those involved to ask for their name to be entered on the electoral roll in the conditions provided by statute as from the date of the publication of this decision.
Article 1: Article L.7 of the Electoral Code is unconstitutional.
Article 2: 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 June 10th 2010 and composed of Messrs Jean-Louis DEBRE, President, Messrs Jacques BARROT, Guy CANIVET, Michel CHARASSE, Jacques CHIRAC, Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Messrs Hubert HAENEL and Mr Pierre STEINMETZ.
Announced on June 11th 2010.