On 23 December 2011 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received from the Conseil d'État (decision no. 354200 of 23 December 2011), an application for a priority preliminary ruling on the issue of constitutionality raised by the Bastia Bar Council, regarding the conformity of Article 706-88-2 of the Code of Criminal Procedure as in force following the enactment of Law no. 2011-392 of 14 April 2011 on police custody 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 the basic law on the Constitutional Council;
Having regard to the Code of Criminal Procedure;
Having regard to the Criminal Code;
Having regard to law no. 2011-392 of 14 April 2001 on police custody;
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 made on behalf of the applicant by Patrice Spinosi Esq., Attorney to the Cour de Cassation and the Conseil d'État, registered on 16 and 31 January 2012;
Having regard to the observations of the Prime Minister, registered on 16 January 2012;
Having regard to the observations in intervention filed by SCP Masse-Dessen et Thouvenin on behalf of the Syndicat des avocats de France [Trade Union of French Lawyers] registered on 13 January 2012;
Having regard to the observations in intervention filed by Mr Philippe K. registered on 13 January 2012;
Having regard to the documents produced and appended to the case files;
Having heard Patrice Spinosi Esq. for the applicant, Hélène Masse-Dessen Esq. on behalf of the intervener Trade Union and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 7 February 2012;
Having heard the Rapporteur;
Considering that Article 706-88-2 of the Code of Criminal Procedure provides: "If a person is placed under police custody for one of the offences referred to in paragraph 11 of Article article 706-73, the custodial judge, seized by the Public Prosecutor upon request by the officer of the investigating police, or the investigating judge in the event that custody is ordered during the course of an investigation, may decide that the person be assisted by a lawyer appointed by the president of the bar from a list of eligible lawyers drawn up by the office of the National Board of Bar Councils acting on proposals by the boards of each bar council.
"The procedures regulating the application of the first subparagraph shall be determined by order of the Conseil d'État";
Considering that, according to the applicant, by permitting the custodial judge or the investigating judge to appoint a lawyer ex officio in order to assist a person placed under police custody for one of the offences referred to in paragraph 11 of Article 706-73 of the Code of Criminal Procedure and in failing to define the objective and rational criteria on the basis of which an exception may be made to the freedom to appoint one's own lawyer, these provisions violate the rights to a defence as well as the principle of equality before the law;
Considering that the first subparagraph of Article 61 -1 of the Constitution provides: "If, during proceedings in progress before a court of law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d'État or by the Cour de Cassation to the Constitutional Council, within a determined period"; that the fact that Parliament breached its own powers may only be invoked in relation to an application for a priority preliminary ruling on the issue of constitutionality in cases in which a right or freedom guaranteed by the Constitution is affected;
Considering that pursuant to Article 34 of the Constitution the legislator is under an obligation to specify the scope of criminal law; that, in relation to criminal procedure, this requirement demands in particular that it avoid unnecessary rigour in the search for the authors of misdemeanours;
Considering that it is for Parliament to ensure a reconciliation between the prevention of breaches of public order on the one hand, including in particular the safety of persons and property and the search for the perpetrators of offences, both of which are necessary in order to safeguard rights and principles of constitutional standing, and on the other hand the exercise of freedoms guaranteed under the Constitution; that these include the respect for the rights to a defence, resulting from Article 16 of the 1789 Declaration of the Rights of Man and the Citizen;
Considering that the contested provisions enable the right to choose one's own lawyer to be suspended for the duration of police custody implemented in relation to the terrorist offences provided for under Articles 421-1 to 421-6 of the Criminal Code; that Parliament accordingly sought to take account of the complexity and seriousness of this category of offences as well as the need to provide particular guarantees to ensure investigative secrecy in this area;
Considering that whilst the freedom for the suspect to choose his own lawyer may be set aside on exceptional grounds for the duration of police custody in order to avoid compromising the search for the perpetrators of terrorist offences or to guarantee public security, it is incumbent upon Parliament to define the conditions and procedures according to which such an infringement of the conditions applicable to the exercise of defence rights may be implemented; that the contested provisions are limited to specifying in respect of a category of offences that the court may decide that the person in police custody is to be assisted by a lawyer appointed by the president of the bar council from a list of eligible lawyers drawn up by the office of the National Board of Bar Councils acting on proposals by the boards of each bar council; that they do not require that reasons be given for the decision and do not define the particular circumstances of the investigation or examination and the reasons which make it possible to impose such a restriction on the rights of the defence; that by adopting the contested provisions without framing the power granted to the court to deprive the person in police custody of the right to choose his lawyer freely, Parliament acted in excess of its powers in a manner which violated the rights of the defence; that accordingly, Article 706-88-2 of the Code of Criminal Procedure 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 revoked 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 under which the effects produced by the provision may be questioned"; that, if, 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 repeal of Article 706-88-2 of the Code of Criminal Procedure will take effect at the time this decision is published; that it shall be applicable to all cases in which a suspect is remanded in police custody after that date,
Article 1.- Article 706-88-2 of the Code of Criminal Procedure is unconstitutional.
Article 2.- The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions set down by recital 9.
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 16 February 2012, 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 February 2012.