On 4 October 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 (commercial chamber, decree no. 1019 of 4 October 2011) raised by Mr Wathik M., regarding the compatibility of Articles 389 of the Customs 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 Customs 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 26 October and 10 November 2011;
Having regard to the documents produced and appended to the case files;
Having heard Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 22 November 2011;
Having heard the Rapporteur;
Considering that Article 389 of the Customs Code provides: « 1. In cases involving the seizure of means of transport the return of which against payment of a deposit has been offered but not accepted by the party as well as in cases involving the seizure of property which cannot be stored without incurring a risk of deterioration, the property seized shall be sold at auction upon request by the Customs administration and following approval by the nearest court or an investigating judge.
"2. The order granting permission to sell shall be served on the other party on the same day in accordance with the provisions of Article 362−2 above, along with a statement that the property will immediately be sold irrespective of whether he is present or absent, given the risk inherent in any delay.
"3. The order by the court or the investigating judge shall be enforced notwithstanding any opposition or appeal.
"4. The proceeds of the sale shall be deposited with the funds of the Customs authorities for disposal as soon as a definitive ruling has been issued by the court responsible for ruling on the seizure";
Considering that according to the applicant, in first permitting the Customs administration to seek permission from the courts to sell the means of transport and perishable objects seized by it before a conviction has been handed down, Article 389 of the Customs Code violates the right of ownership guaranteed under Articles 2 and 17 of the 1789 Declaration of the Rights of Man and the Citizen; that secondly in providing that the court order authorising the sale may be enforced notwithstanding any opposition or appeal, the third subparagraph of Article 389 of the same Code violates the rights of the defence and the right to effective judicial relief according to Article 16 of the 1789 Declaration;
- WITH RESPECT TO THE RIGHT OF OWNERSHIP:
Considering that Article 17 of the 1789 Declaration provides: "Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified";
Considering that the contested provisions permit the sale by the Customs authorities whilst proceedings are underway, subject to authorisation by the courts, of vehicles and perishable objects seized; that such a sale, which does not result from a measure of confiscation ordered against the owners of the property seized, results in a violation of the right of ownership for the purposes of Article 17 of the 1789 Declaration;
Considering on the one hand that the deprivation of ownership under Article 389 of the Customs Code only applies to means of transport and objects seized "which cannot be stored without incurring a risk of deterioration"; that their sale is intended to avoid them from deteriorating during the course of the proceedings and to limit storage and custody fees; that it has an objective of conservation, in the interest both of the prosecuting authority as well as the owner of the property seized; that it moreover pursues the objective of constitutional standing of the proper administration of justice and the proper usage of public funds; that accordingly it meets with a requirement of public interest;
Considering on the other hand that, first, the sale of seized property before it has deteriorated is intended to ensure that, according to the outcome of the proceedings, the proceeds of the sale which correspond to the value of the property seized may either be allocated as payment for the orders issued against their owner, or be returned to the latter; that accordingly it does not violate the requirement of fair compensation for the deprivation of ownership;
Considering secondly the requirement of a prior payment of the indemnity could not prevent it being withheld as security for payment of the criminal or customs fines which the person concerned may be ordered to pay; that accordingly, in preventing the proceeds from the sale of the property seized from being made available during the course of the proceedings, Article 389 of the Customs Code does not violate the requirement for prior indemnity for the deprivation of ownership;
Considering that it follows from the above that the deprivation of the right of ownership provided for under the contested provisions does not violate the requirements set forth in Article 17 of the 1789 Declaration;
- WITH RESPECT TO THE RIGHT TO EFFECTIVE JUDICIAL RELIEF:
Considering that Article 16 of the 1789 Declaration provides: “A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all”;
Considering that the non-suspensory nature of a form of relief does not in itself violate the right to effective judicial relief guaranteed under Article 16 of the 1789 Declaration;
Considering however that, on the one hand, the request for sale made by the administration pursuant to Article 389 of the Customs Code is examined by a court without hearing or summoning the interested party; that on the other hand the enforcement of the sale order is in actual fact a definitive measure, as the property sold is definitively removed from the ownership of the person concerned;
Considering that having regard to the consequences which may result from the enforcement of the sale order, the combination of the lack of any opportunity to make representations within the procedure and the non-suspensory nature of the appeal against the court order mean that the applicable procedure violates the requirements resulting from Article 16 of the 1789 Declaration; that accordingly, Article 389 of the Customs Code must be ruled unconstitutional;
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 are subject to revision"; whilst, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both 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;
Considering that the immediate repeal of Article 389 of the Customs Code would have manifestly excessive consequences; that accordingly this declaration of unconstitutionality shall take effect from 1 January 2013,
Article 1.- Article 389 of the Customs Code is unconstitutional.
Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect on 1 January 2013 in the conditions specified in recital 14.
Article 3.- 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 Ordinance of 7 November 1958 referred to hereinabove.
Deliberated by the Constitutional Council in its session on 1 December 2011, sat on by: Mr Jean−Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Ms Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.
Announced on 2 December 2011.
Journal officiel of 3 December 2011, p 20015 (@ 83)