On 8 October 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 raised by the Courde Cassation (criminal chamber, decree no. 4978 of 14 September 2010), raising the conformity of the amending Article 803-3 of Criminal Procedure Code 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 organic law on the Constitutional Council;
Having regard to the Criminal Procedure Code;
Having regard to the Regulation of 4 February 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 the applicant by Esq. Xavier Flécheux, Attorney at the Paris Bar, registered on 2 November 2010;
Having regard to the observations of the Prime Minister, registered on 2 November 2010;
Having regard to the documents produced and appended to the case files;
Having heard Esq. Flécheux on behalf of the applicant and Mr Thierry-Xavier Girardot, appointed by the Prime Minister, at the public hearing on 7 December 2010;
Having heard the Rapporteur:
Considering that Article 803-3 of the Criminal Procedure Code provides: “Where necessary, and by special dispensation from the provisions of article 803-2, the person may appear in court the following day and may be detained for these ends in a specially arranged location belonging to the court, on the condition that his appearance will take place no later than twenty hours from when the police custody ended. If this does not happen, the party concerned is immediately released.
Where the provisions of the present article are applied, the person must have the chance to eat and, at his request, to have one of the persons mentioned in Article 63-2 informed, and to be examined by a doctor appointed in accordance with the provisions of Article 63-3, and to speak, at any time, an attorney specified by him or automatically appointed for him at his request, under the terms provided for in Article 63-4.
The identity of persons held in accordance with the provisions of the first paragraph, their time of arrival and of their appearance before the judge as well as the provisions of the second paragraph are recorded in a special register which is kept in the place where the persons are detained and which is supervised, under the direction of the public prosecutor, by members of the national police force or the gendarmerie.
The provisions of the present article do not apply where the person has been kept in police custody for more than 72 hours, under the provisions of Article 706-88”;
Considering that, according to the applicant, by authorizing detention for twenty hours in a location belonging to the regional court of a person whose custody has been ended to enable him to appear before a justice of this court, Article 803-3 of the Criminal Procedure Code fails to have regard for the protection of individual liberty and the prohibition of any measure that is not required to secure an accused person;
Considering that Article 9 of the Declaration of the Rights of Man and the Citizen of 1789 provides: “As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner's person shall be severely repressed by law”, that the Preamble to the Constitution of 1946 reaffirmed that every human being, regardless of race, religion or faith, has inalienable and sacred rights; that safeguarding human dignity against any form of servitude and debasement is one of those rights and constitutes a constitutional value; that Article 34 of the Constitution determines the rules of the law regarding criminal procedure;
that in accordance with 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 in law”;
Considering 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 constitutional rights and principles, and on the other, the exercise of constitutional freedoms; and that these freedoms include respect for the presumption of innocence, the safeguarding of human dignity and the individual liberty that Article 66 of the Constitution places under the protection of the Judicial Authority;
Considering that the principle of presumption of innocence, proclaimed as such by Article 9 of the Declaration of 1789, shall not preclude the imposition by the Judicial Authority of restrictive measures or deprivation of liberty, before any declaration of culpability, where there are sufficient grounds to believe that the person in question participated in committing an offence or crime; and that, however, this is conditional on such measures being issued in accordance with a procedure that respects the rights of defence and appear to be necessary to ascertain the truth, ensure that the person remains before the court, protect the person or third parties or safeguard public order;
Considering, firstly, that the detention authorized by the contested provision is only permitted when appearance on the same day is impossible; that by reserving the application of this measure to “cases of necessity”, the legislator has sought, in the interests of the proper administration of justice, to satisfy material constraints arising in connection with, in particular, the time that custody is due to end or the number of persons subject to the justice system; and that, if the competent authorities must, under the control of their jurisdictions, justify the circumstances necessitating the application of this exemptive coercive measure, any breach inherent to this requirement does not render the contested provisions unconstitutional;
Considering that deprivation of liberty instituted by the contested provision is strictly limited to twenty hours following the end of custody; and that it is not applicable when custody has lasted for more than seventy-two hours in application of Article 706-88 of the Criminal Procedure Code; and that the second and third subparagraphs of Article 803-3 guarantee the detainee's right to eat, have a relative or friend informed, be examined by a doctor and meet with an attorney at any time; and that it requires a special record to be kept identifying the persons detained, their time of arrival and behaviour before the judge;
Considering that, as a result of the above, the conditions, limits and guarantees that accompany the application of this measure, the legislator has adopted provisions appropriate to ensure a balance between the objective of the proper administration of justice and the principle that no one shall be subject to unnecessary measure;
Considering that, secondly, the judicial authorities are responsible for ensuring that the deprivation of liberty of detainees respects human dignity under all circumstances;
that it is, therefore, for the authorities to ensure that the facilities of the courts where such persons are detained are prepared and maintained in conditions that ensure respect for this principle; that any breach inherent to this requirement in the application of the aforementioned legislative provisions does not, in itself, render the provisions unconstitutional;
Considering, thirdly, that Article 803-3 of the Criminal Procedure Code is limited to placing supervision of the facility in which the person is detained under the control of the Public Prosecutor of the Republic; that individual liberty would however not be protected by the judicial authority if the judge before whom the person is summoned to appear were not in a position to assess immediately the appropriateness of the detention; and that, in such a case, the judge must be informed immediately of the arrival of the person at the location belonging to the court;
Considering, furthermore, that if the judicial authority comprises both judges and prosecutors, intervention by a judge is required in order to extend custody beyond forty-eight hours; that, consequently, deprivation of liberty instituted by Article 803-3 of the Criminal Procedure Code, on expiry of a detention measure extended by the Public Prosecutor of the Republic, would fail to have regard for the constitutional protection of individual liberty if the detained person was not effectively presented to a judge before expiry of the twenty-hour period provided by this Article;
Considering that, with the two reservations set forth in points 10 and 11, Article 803-3 of the Criminal Procedure Code does not contradict Article 66 of the Constitution;
Considering that the contested provision is not contrary to any other right or freedom guaranteed by the Constitution;
Article 1: With the two reservations set forth in recitals 10 and 11, Article 803-3 of the Criminal Procedure Code conforms to the Constitution.
Article 2: This decision shall be published in the Official journal of the French Republic and notified in the conditions provided for in Section 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.
Deliberated by the Constitutional Council in its session on 16 December 2010 and 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 17 December 2010.
Official Journal of 19 December 2010, p 22374 (@ 50)