On 30 March 2012 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 (criminal chamber, judgment no. 2069 of 27 March 2012), raised by Mr Mickaël D., regarding the compatibility of Article 3341-1 of the Public Health 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 the basic law on the Constitutional Council;
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 24 April 2012;
Having regard to the observations on behalf of the applicant by Cédric Michalski Esq., Attorney at the Mulhouse Bar, registered on 7 May 2012;
Having regard to the documents produced and appended to the case files;
Having heard Michalski Esq. for the applicant and Mr Xavier Pottier at the public hearing of 15 May 2012;
Having heard the Rapporteur;
Considering that Article L. 3341-1 of the Public Health Code provides: "Any person who is found in a state of intoxication in a public place shall be removed by the police at its own expense to the nearest police or gendarmerie station, or to a secured room where it shall be held until it has recovered its senses";
"If it is not necessary to hear the person referred to in the first subparagraph immediately after it has recovered its senses, notwithstanding subparagraph one, an officer of the investigating police may place it under the supervision of a third party who shall guarantee for its conduct";
Considering that, according to the applicant, in permitting persons found in a state of intoxication in a public place to be deprived of their freedom for an indefinite period by a policing measure which is not subject to review by the judicial authorities and in reserving the judgment regarding intoxication solely to the subjective assessment of a police officer or an officer from the national gendarmerie, these provisions violate the constitutional protection of individual freedom;
Considering that pursuant to the eleventh recital to the Preamble of the 1946 Constitution, the Nation is to guarantee to all persons the right to protection of health; that Article 34 of the Constitution provides that the law shall lay down rules concerning the fundamental guarantees afforded to citizens in order to exercise public freedoms;
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 statute"; that it is for the legislature to ensure a reconciliation between, on the one hand, the protection of the health of individuals and the the prevention of breaches of public order 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 freedom of movement protected under Articles 2 and 4 of the 1789 Declaration of the Rights of Man and the Citizen as well as individual freedom which Article 66 of the Constitution reserves to the protection of the judicial authorities; that the restrictions imposed on the exercise of this freedom must be necessary, appropriate and proportional having regard to the objective pursued; that when exercising its powers, the legislator may determine the procedures governing intervention by the judicial authorities that differ in line with the nature and scope of the measures affecting individual freedom that it intends to enact;
Considering first that, on the one hand, according to Article L. 3341-1 of the Public Health Code, the removal to a police or gendarmerie station of an individual found in a state of intoxication in a public place and its detention at this place or in a secured room until it has recovered its senses are administrative policing measures, the objective of which is to prevent breaches of public order and to protect the person involved; that these provisions enable police officers and officers of the national gendarmerie, as the only parties charged with this task of public security, to order detention after establishing the state of intoxication which is a material fact if manifested through the conduct of the individual;
Considering on the other hand that according to the terms of that provision, the deprivation of freedom cannot be continued after the person has recovered its senses; that the condition thereby imposed by the legislature has the objective and effect of limiting this deprivation of freedom to several hours at most; that moreover, the same provision authorises an officer of the investigating police to refrain from placing it in a secured room and to place it under the supervision of a third party who shall guarantee for its conduct if it appears that it will not be necessary to hear the person after it has recovered his senses; that detention in a secured room, which is duly provided for, organised and limited by law, does not constitute arbitrary detention; that, depending upon the circumstances, any error committed by police officers or officers of the national gendarmerie during the course of their duties incurs the liability of the public authorities before the competent courts;
Considering accordingly that the provisions of Article L. 3341-1 of the Public Health Code do not violate the requirement that any deprivation of freedom must be necessary for, suited to and proportionate with the objectives of the preservation of public order and the protection of health which they pursue;
Considering secondly that having regard to the brief duration of this deprivation of freedom organised for administrative policing purposes under the contested provisions, the absence of any provision for intervention by the judicial authorities does not violate the requirements of Article 66 of the Constitution;
Considering however that when the person is placed in custody after being subject to a measure involving the deprivation of its freedom pursuant to the first subparagraph of Article L. 3341-1 of the Public Health Code, the constitutional protection of individual freedom by the judicial authorities requires that the duration of the period in a secured room, which must be recorded under all circumstances by police officers or officers of the national gendarmerie, be taken into account for the duration of the period in custody;
Considering that it follows from the above that, subject to the reservation stated in recital 9, Article L. 3341-1 of the Public Health Code does not violate either Article 66 of the Constitution or any other right or freedom guaranteed under the Constitution,
Article 1.- Subject to the reservation stated in recital 9, Article L. 3341-1 of the Public Health Code is constitutional.
Article 2.- 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.
Deliberated by the Constitutional Council in its session of 7 June 2012, sat on by: Mr. Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.
Announced on 8 June 2012.