Decision no. 2011-174 QPC of 6 October 2011

On 6 July 2011 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 from the Cour de cassation (first civil chamber, decree no. 864 of the same date), raised by Mrs Oriette P., concerning the compatibility of Articles L. 3213−2 and L. 3213−3 of the Code of Public Health 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 basic law on the Constitutional Council;

Having regard to Decision no. 2011−135/140 QPC of the Constitutional Council of 9 June 2011;

Having regard to the Public Health Code;

Having regard to 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 observations of the Prime Minister, registered on 28 July 2011;

Having regard to the observations filed on behalf of the applicant by Esq. Laurent Friouret, Attorney at the Castres Bar, registered on 5 August 2011;

Having regard to the observations during intervention submitted for information purposes on behalf of the Association "Groupe information asiles" by Corinne Vaillant Esq., Attorney at the Paris bar, registered on 2 August 2011;

Having regard to the documents produced and appended to the case files;

Having heard Esq. Vaillant on behalf of the intervenor association and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 27 September 2011;

Having heard the Rapporteur;

1. Considering that pursuant to Article L. 3213−2 of the Code of Public Health, in the version prior to Law no. 2011−803 of 5 July 2011 relating to the rights and protection of people receiving psychiatric treatment and the procedures relating to the terms and conditions of their care: "In case of imminent danger for the safety of people, certified by a medical certificate or, in its absence, by an official, the mayor or, in Paris, the chiefs of police shall order all necessary provisional measures towards individuals whose conduct displays clear signs of mental illness, subject to the requirement to make a report within twenty four hours to the representative of the State in the Department who shall reach a decision without delay and, if appropriate, issue a involuntary confinement in accordance with the procedures provided for under Article L. 3213−1. If the State representative fails to reach a decision, these provisional measures shall expire after forty eight hours";

2. Considering that pursuant to Article L. 3213−3 of the same Code, in the version prior to this Law of 5 July 2011: "Within fifteen days, and also one month after confinement and thereafter at least every month, the patient shall be examined by a psychiatrist from the establishment who shall issue a medical certificate confirming or rejecting, if appropriate, the observations contained in the previous certificate and specifying in particular the characteristics of the evolution or resolution of the illness that justified confinement. Each certificate is transmitted to the representative of the State in the Department and to the commission referred to under Article L. 3222−5 by the director of the establishment";

3. Considering that, according to the applicant, the conditions under which the involuntary confinement of a person may be ordered in the event of imminent danger are insufficiently framed and violate the constitutional requirements providing protection for individual freedom; that moreover the intervening association points out that the ability to order the confinement of a person suffering from mental illness solely on the basis of publicly known facts violates these requirements;

4. Considering that Article 66 of the Constitution provides that: “No one shall be arbitrarily detained. − The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle in the conditions laid down by the law"; that when exercising its powers, the legislator may determine different actions by the judicial authorities depending on the nature and scope of the measures affecting individual freedom that it intends to enact;

5. Considering that pursuant to the eleventh paragraph of the Preamble to the Constitution of 1946, the Nation guarantees to all the right to protection of health; that Article 34 of the Constitution provides that the law determines the rules concerning the fundamental guarantees granted to citizens for the exercise of their civil liberties; that the legislator is free at any time, when ruling on matters within its competence, to adopt new provisions that are in his view appropriate, and to amend previous legislation or repeal it and, depending on the circumstances, replace it with other provisions, provided that when exercising this power, he does not deprive these constitutional requirements of legal guarantees;

6. Considering that the involuntary confinement of a person suffering from mental illness must respect the principle enshrined in Article 66 of the Constitution, whereby individual freedom may not be restricted to an unnecessary extent; that it is for the legislator to ensure that a balance is struck between, on the one hand, the protection of health of people suffering from mental illness and the prevention of disordely conduct in order to safeguard rights and principles with constitutional status and, on the other hand, the exercise of freedom guaranteed under the Constitution; including the freedom of movement and privacy, protected under Articles 2 and 4 of the 1789 Declaration of the Rights of Man and the Citizen, as well as the individual freedom which Article 66 of the Constitution entrust the protection to the judicial authorities; that violations of these freedoms must be adapted, necessary and proportionate to the pursued objectives;

• WITH RESPECT TO ARTICLE L. 3213−2 OF THE CODE OF PUBLIC HEALTH:

7. Considering, in the first place, that Article L. 2113-1 of the Public Health Code, in the version prior to the aforementioned Law of 5 July 2011, provides that a person suffering from mental illness may not be involuntarily confined unless his illness requires treatment and jeopardises the safety of other people or seriously breaches the law and order; that, in its aforementioned decision of 9 June 2011, the Constitutional Council held that these grounds may justify the implementation of a measure that restricts freedom pursuant to the terms of the constitutional requirements guaranteeing protection for individual freedom;

8. Considering, secondly, that the administrative authority taking the provisional measures is required to report within twenty four hours to the representative of the State in the Department, who may issue a involuntary confinement order subject to the conditions and according to the procedures provided for under Article L. 3213−1; that where no such decision is reached, these measures shall expire after forty eight hours; that, whereas Article 66 of the Constitution requires that any deprivation of freedom be subject to the control of the judicial authority, it does not require that such review be conducted in advance of any measure depriving a person of his freedom; that, accordingly, the power of the mayor of the municipality or, in Paris, of the chief of police to order all provisional measures, including measures infringing personal freedom in case of imminent danger to the safety of the people, does not violate the requirements underlying Article 66 of the Constitution;

9. Considering, thirdly, that Article L. 3213−2 only applies in case of imminent danger for the safety of people and only applies to people whose conduct displays clear signs of mental illness; that under these conditions, the legislator was able to allow a provisional deprivation of personal freedom to be ordered after a simple medical opinion without violating the aforementioned constitutional requirements;

10. Considering however, that the deprivation of personal freedom provided for under Article L. 3213−2 is based on the existence of a metal illness; that in permitting such a measure to be ordered solely on the basis that it is a publicly known fact, the provisions of this Article do not guarantee that such action is reserved for cases in which it is appropriate, necessary and proportionate with the state of the mentally ill person as well as the safety of people or the preservation of public order; that, accordingly, the words: "or, in its absence, where it is a publicly known fact" must be ruled unconstitutional;

11. Considering that it follows from the above that the remainder of Article L. 3213−2 of the Code of Public Health does not violate any right or freedom guaranteed under the Constitution;

• WITH RESPECT TO ARTICLE L. 3213-3 OF THE CODE OF PUBLIC HEALTH:

12. Considering that Article L. 3213−3 is limited to requiring that within fifteen days, and subsequently also one month after confinement and thereafter at least every month the patient is to be examined by a psychiatrist from the establishment who must transmit his medical certificate to the representative of the State in the Department and to the departmental commission for psychiatric confinement; that this Article does not violate any right or freedom guaranteed under the Constitution; that it must be upheld as constitutional;

• WITH RESPECT TO THE EFFECT THROUGH TIME OF THIS DECISION:

12. Considering that the second paragraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61−1 is repealed as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits according to which the effects produced by the provision shall be liable to be challenged"; that the repeal of the words: "or, in its absence, where it is a publicly known fact" shall take effect from the time this decision is published; that it shall apply to all proceedings that have not been finally resolved at that time,

HELD:

Article 1.- In Article L. 3213−2 of the Code of Public Health, the words: "or, in its absence, where it is a publicly known fact" are unconstitutional;

Article 2.- The declaration of unconstitutionality of Article 1 shall take effect as from the date this decision is published in the conditions set down by recital 13.

Article 3.- The remainder of Article L. 3213−2 and Article L. 3213−3 of the Code of Public Health are constitutional.

Article 4.- This decision shall be published in the Journal officiel of the French Republic and notified in the conditions provided for under Article 23−11 of the aforementioned Ordinance of 7 November 1958.

Deliberated by the Constitutional Council in its session of 06 October 2011, 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 6 October 2011.