On 18 January 2012 the Constitutional Council, in the conditions provided for by Article 61-2 of the Constitution, received two applications for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (first criminal division, judgments no. 261 and 262 of 18 January 2012) on behalf of Mr Kiril Z. relating, respectively, to the seventh subparagraph of Article 116-1 of the Code of Criminal Procedure and the seventh subparagraph of Article 64-1 of the same Code.
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 Criminal Code;
Having regard to the Code of Criminal Procedure;
Having regard to Law no. 2007-291 of 5 March 2007 seeking to reinforce the equilibrium within criminal procedure;
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 on behalf of the applicant by Loïc Auffret Esq., attorney at the Lyon bar, registered on 8, 9 and 24 February 2012;
Having regard to the observations on behalf of the Prime Minster, registered on 9 February 2012;
Having regard to the documents produced and appended to the case files;
Having heard Auffret Esq. for the applicant and Mr Xavier Pottier, appointed by the Prime Minster, at the public hearing of 27 March 2012
Having heard the Rapporteur;
Considering that it is appropriate to join the two applications for priority preliminary rulings on the issue of constitutionality in order to rule by a single decision;
Considering that pursuant to the seventh subparagraph of Article 64-1 of the Code of Criminal Procedure: “This Article shall not apply where the person is being held in custody for one of the offences referred to in Article 706-73 of this Code of provided for under Titles I and II of Book IV of the Criminal Code, unless the Public Prosecutor orders the recording”; that pursuant to the seventh subparagraph of Article 116-1 of the Code: “This Article shall not apply where the information relates to an offence referred to in Article 706-73 of this Code or provided for under Titles I and II of Book IV of the Criminal Code, unless the investigating judge decides to make a recording”.
Considering that, according to the applicant, by making an exception to the principle requiring the audio-visual recording of questioning in relation to criminal proceedings during the course of inquiries or investigations relating to organised crime offences or attacks against the fundamental interests of the Nation, these provisions violate the principle of equality and respect for the rights of the defence;
Considering in the first place that pursuant to Article 6 of the 1789 Declaration of the Rights of Man and the Citizen, the law is “the same for all, whether it protects or punishes”; that Article 7 provides that: “No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law...”; that Article 9 provides that: “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”; and that Article 16 provides that: “A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all”;
Considering secondly that it is for Parliament to ensure a reconciliation between on the one hand the prevention of breaches of public order and the prosecution of offenders, both necessary in order to safeguard rights and principles with constitutional status, and on the other hand the exercise of the freedoms guaranteed under the Constitution;
Considering that according to these provisions as a whole, whilst Parliament may make provision for special investigative measures with a view to discovering particularly serious and complex offences, and to gathering evidence and searching for the perpetrators, this is conditional upon the requirement that the restrictions which it applies to rights guaranteed under the Constitution be necessary in order to establish the truth, proportional with the seriousness of the offences committed and do not introduce any unjustified discrimination;
Considering that in introducing Articles 64-1 and 116-1 into the Code of Criminal Procedure, the aforementioned Law of 5 March 2007 has provided for the recording of the person in custody or following indictment if questioned in relation to a criminal offence; that however, the contested provisions provide that the guarantees established by these two Articles do not apply to inquiries and investigations carried out for the offences listed in Article 706-73 of the Code or those provided for and punished under Titles I and II of Book IV of the Criminal Code, unless the Public Prosecutor or the investigating judge orders that they be recorded; that according to the travaux preparatoires relating to the Law of 5 March 2007, in limiting in this manner the number of inquiries or investigations subject to the requirement of recording for the persons suspected of having committed an offence, Parliament sought to reconcile the new procedural rule with the particular requirements of inquiries and investigations conducted in relation to organised crime or attacks against the fundamental interests of the Nation;
Considering first that, on the one hand, Articles 64-1 and 116-1 of the Code of Criminal Procedure provide that the Public Prosecutor or the investigating judge may provide that hearings or questioning not be recorded due to the “number of people... which must be questioned at the same time”; that the requirement of recording does not apply in cases in which it is technically impossible, as mentioned in the report; that on the other hand, these provisions do not enable recordings to be consulted unless ordered by the investigating judge or the trial court, upon request by the public prosecutor or one of the parties; that moreover, the unauthorised disclosure of the recordings is punished under the criminal law; that accordingly, the contested provisions are not justified either by the difficulty in apprehending the perpetrators of organised crime offences or the objective of maintaining the secrecy of the inquiry or investigation;
Considering secondly that no constitutional requirement demands that the hearings or questioning of persons suspected of having committed an offence be recorded; that however, in permitting such recordings, Parliament intended to make it possible for them to be consulted in order to verify the statements transcribed in the reports of the hearing or questioning of persons suspected of having committed an offence; that accordingly, having regard to the objective pursued, the difference in treatment between persons suspected of having committed one of the offences covered by the contested provisions and those who are heard or questioned when they are suspected of having committed other offences results in unjustified discrimination; that accordingly the provisions violate the principle of equality and must be ruled unconstitutional;
Considering that pursuant to the second subparagraph of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of article 61-1 shall be repealed as of the publication of the said decision of the Constitutional Council or as of a subsequent date determined by said decision. The Constitutional Council shall determine the conditions and the limits according to which the effects produced by the provision shall be liable to challenge”; that 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 repeal of the seventh subparagraphs of Articles 64-1 and 116-1 of the Code of Criminal Procedure shall take effect from the date of publication of this decision; that it shall be applicable to the hearings of persons in custody and to the questioning of persons indicted which are carried out after that time,
Article 1.- The seventh subparagraphs of Articles 64-1 and 116-1 of the Code of Criminal Procedure are unconstitutional.
Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect on the date of publication of this decision in the conditions set down in recital 11.
Article 3.- 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 7 November 1958 referred to hereinabove.
Deliberated by the Constitutional Council in its session on 5 April 2012 sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Ms Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.
Announced on 6 April 2012.