Decision no. 2014-420/421 QPC of 9 October 2014

On 16 July 2014 the Constitutional Council, pursuant to 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, order no. 4428 of 16 July 2014) raised by Mr. Maurice L., regarding the compatibility of subparagraph 8-bis of Article 706-73 of the Code of Criminal Procedure with the rights and freedoms guaranteed by the Constitution.

It was also seized on the same day under the same conditions with a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (criminal chamber, decree no. 4429 of the same day) on behalf of Mr Bernard T. raising the conformity of Article 706-88 of the Code of Criminal Procedure 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 Criminal Code;

Having regard to the Code of Criminal Procedure;

Having regard to Law no. 2004-204 of 9 March 2004 bringing the justice system into line with evolution in crime, along with Decision no. 2004-492 DC of 2 March 2004 of the Constitutional Council;

Having regard to Decision no. 2010-31 QPC of the Constitutional Council of 22 September 2010;

Having regard to law no. 2011-392 of 14 April 2001 on police custody, including in particular Article 16;

Having regard to Law no. 2011-525 of 17 May 2011 on the simplification and improvement of the quality of the law, including in particular Article 157;

Having regard to law no. 2014-535 of 27 May 2014 implementing Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, including in particular Article 4;

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 SAS Consortium de réalisation and SAS CDR Créances, defendants, by Benoît Chabert Esq., Attorney at the Paris Bar, registered on 7 August 2014;

Having regard to the observations on behalf of Mr Maurice L. by Paul-Albert Iweins Esq., Attorney at the Paris Bar, registered on 8 and 28 August 2014;

Having regard to the observations on behalf of Bernard T. by SCP Lyon-Caen et Thiriez, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 8 and 28 August 2014;

Having regard to the observations of the Prime Minister, registered on 8 August 2014;

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

Having heard Iweins Esq. and Frédéric Thiriez Esq. on behalf of the applicants, Chabert Esq. on behalf of the defendants and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 23 September 2014;

Having heard the Rapporteur;

1. Considering that it is appropriate to join these applications for priority preliminary rulings on the issue of constitutionality in order to rule by a single decision;

2. Considering that the applications for priority preliminary rulings on the issue of constitutionality must be deemed to relate to the provisions applicable to the dispute at the time when they were raised; that accordingly, the Constitutional Council has been seized of subparagraph 8-bis of Article 706-73 of the Code of Criminal Procedure as currently in force and of Article 706-88 of the Code as in force following the enactment of the aforementioned Law of 14 April 2011 and prior to the enactment of the aforementioned Law of 27 May 2014;

3. Considering that title XXV of book IV of the Code of Criminal Procedure which, in the version in force following the enactment of the aforementioned Law of 27 May 2014, is comprised of Articles 706-73 to 706-106, is dedicated to the procedure applicable to organised crime and delinquency; that Article 706-73 specifies the list of crimes and major offences for which the procedure applicable to the inquiry, prosecution, investigation and judgment is subject to the special provisions laid down in title XXV; that subparagraph 8-bis of this Article 706-73, as in force following the enactment of the aforementioned Law of 17 May 2011, specifies the "major offence of conspiracy to defraud by an organised gang provided for under the last subparagraph of Article 313-2 of the Criminal Code";

4. Considering that, pursuant to Article L. 706-88 of the Code of Criminal Procedure as in force following the enactment of the Law of 14 April 2011: "For the purposes of the application of Articles 63, 77 and 154, if necessary owing to the requirements of the inquiry or the investigation relating to one of the offences falling within the scope of Article 706-73, the period in police custody of a person may exceptionally be subject to two supplementary extensions of twenty-four hours each.
   "These extensions shall be authorised by a written decision supported by reasons either, upon request by the public prosecutor, by the custodial judge or by the investigating judge.
   "The person held in police custody must be brought before the judge ruling on the extension before this decision is made. However, the second extension may in exceptional cases be authorised even if the person has not been brought before the judge beforehand owing to the requirements of investigations underway or pending.
   "If the first extension is granted, the person held in police custody shall be examined by a physician appointed by the public prosecutor, the investigating judge or the investigating police officer. The physician shall issue a medical certificate which must comment in particular on the suitability of continuing police custody, which shall be placed on the case file. The person shall be informed by the investigating police officers of his or her right to request a new medical investigation. These medical investigations shall be available as of right. A reference to this notice shall be placed on the case file and signed by the person concerned; if he or she refuses to sign, this fact shall be noted.
   "Notwithstanding the provisions of the first subparagraph, if so justified by the foreseeable duration of the investigations that still need to be carried out upon completion of the first forty-eight hours of police custody, the custodial judge or the investigating judge may decide in the manner provided for under the second subparagraph that the police custody shall be subject to one single supplementary extension of forty-eight hours.
   "Notwithstanding the provisions of Articles 63-4 to 63-4-2, if the person is held in police custody for an offence falling within the scope of Article 706-73, the right to consult with a lawyer may be postponed in consideration of compelling reasons relating to the particular circumstances of the inquiry or the investigation either in order to enable evidence to be gathered or preserved or in order to prevent harm to other persons for a maximum period of forty-eight hours or, if the offence is referred to under subparagraph 3 or 11 of Article 706-73, for a maximum period of seventy-two hours.
   "The decision to postpone the right to consult with a lawyer until the end of the twenty-four hour period shall be taken by the public prosecutor, either on his or her own initiative or upon request by the investigating police officer. The decision to postpone the right to consult with a lawyer until the end of the twenty-four hour period shall be taken, within the limits laid down in subparagraph six, by the custodial judge upon request by the public prosecutor. If the period in police custody is ordered in response to a request for mutual judicial assistance, the decision to postpone shall be made by the investigating judge. In all circumstances, the decision by the judge, which shall be made in writing and supported by reasons, shall specify the period of time by which the right to consult with a lawyer is to be deferred.
   "If the sixth and seventh subparagraphs of this Article are applied, the lawyer shall be vested with the rights provided for under Articles 63-4 and 63-4-1, the first subparagraph of Article 63-4-2 and Article 63-4-3 from the time when he or she is authorised to consult with the person held in police custody";

5. Considering that according to the applicants, insofar as they enable the recourse to a period in police custody of ninety-six hours as part of an inquiry or investigation relating to offences classified as conspiracy to defraud by an organised gang, the combined provisions of subparagraph 8-bis of Article 706-73 of the Code of Criminal Procedure and Article 706-88 of the Code violate the principle of the necessary stringency of measures of restraint within criminal procedure, the protection of individual freedom and the rights of the defence;

6. Considering that, in relation to Article 706-88 of the Code of Criminal Procedure, the application for a priority preliminary ruling on the issue of constitutionality only refers to the first five subparagraphs thereof relating to the duration of the period in police custody;

• THE APPLICABLE PROVISIONS OF THE CONSTITUTION:

7. Considering that Article 7 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law. Anyone soliciting, transmitting, executing, or causing to be executed, any arbitrary order, shall be punished. But any citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offence"; 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"; 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”;

8. 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;

9. Considering that it is incumbent upon the legislator to strike a balance between, on the one hand, preventing breaches of public order and bringing offenders to justice, both of which are necessary to safeguard constitutional rights and principles, and on the other hand, the exercise of constitutional freedoms; that these freedoms include freedom of movement, the inviolability of the home, the secrecy of private correspondence and respect for private life, which are protected under Articles 2 and 4 of the 1789 Declaration as well as individual freedom, which Article 66 of the Constitution places under the protection of the judicial authorities;

• THE FIRST FIVE SUBPARAGRAPHS OF ARTICLE 706-88 OF THE CODE OF CRIMINAL PROCEDURE:

10. Considering that the first five subparagraphs of Article 706-88 of the Code of Criminal Procedure have been referred to the Constitutional Council in the version in force following the enactment of the aforementioned Law of 9 March 2004; that in recitals 21 to 27 of its aforementioned decision of 2 March 2004, the Constitutional Council specifically examined Article 706-88, which was introduced into the Code of Criminal Procedure by Article 1 of the Law of 9 March 2004; that it held that these provisions did not result in an excessive restriction on personal freedom; that it upheld these provisions as constitutional in Article 2 of the operative part of this decision; that accordingly, the first five subparagraphs of Article 706-88 have already been upheld as constitutional in the operative part of a decision of the Constitutional Council on the grounds stated in that decision; that, as the Constitutional Council held in its aforementioned decision of 22 September 2010, absent any change in circumstances following the aforementioned decision of 2 March 2004 on the combating of organised crime and delinquency, there is no reason for the Constitutional Council to re-examine these provisions; that with regard to the remainder, the objection alleging that the contested provisions permit the recourse to a period in police custody of ninety-six hours for the offence of conspiracy to defraud by an organised gang does not call into question Article 706-88 of the Code of Criminal Procedure itself, but rather the inclusion of this offence in the list provided for under Article 706-73 of the Code;

• SUBPARAGRAPH 8-BIS OF ARTICLE 706-73 OF THE CODE OF CRIMINAL PROCEDURE:

11. Considering that the inclusion of a crime or major offence in the list of offences specified under Article 706-73 of the Code of Criminal Procedure has the effect of enabling a period in police custody to be ordered during inquiries or investigations relating to that crime or major offence in accordance with the conditions laid down by Article 706-88 of the Code of Criminal Procedure and the recourse to the special powers of inquiry or investigation provided for under title XXV of book IV of the Code of Criminal Procedure, which are applicable to all of the offences specified under Article 706-73;

12. Considering that Article 706-88 of the Code of Criminal Procedure provides that, if necessary owing to the requirements of an inquiry, the period in police custody of a person may exceptionally be subject to two supplementary extensions of twenty-four hours each, which may be ordered by the custodial judge or the investigating judge; that in such cases, these extensions, which are added to the ordinary legal duration defined under Article 63 of the Code, increase to ninety-six hours the maximum period in police custody; that this Article also enables the right to consult with a lawyer to be postponed for a maximum period of forty-eight hours, in consideration of compelling reasons relating to the particular circumstances of the inquiry or the investigation either in order to enable evidence to be gathered or preserved or in order to prevent harm to other persons; that this deferral may be ordered by the investigating judge when police custody has been ordered during a judicial inquiry; that in other situations, the first extension may be ordered by the public prosecutor and the second extension may be ordered by the custodial judge;

13. Considering that fraud is an offence against property defined under Article 313-1 of the Criminal Code as "the act of deceiving a natural or legal person by the use of a false name or a fictitious capacity, by the abuse of a genuine capacity, or by means of unlawful manoeuvres, thereby to lead such a person, to his prejudice or to the prejudice of a third party, to transfer funds, valuables or any property, to provide a service or to consent to an act incurring or discharging an obligation"; that, even if it is committed by an organised gang, the offence of fraud is not liable to jeopardise the safety, dignity or life of other persons; that in permitting police custody to be ordered in the manner provided for under Article 706-88 of the Code of Criminal Procedure during the course of inquiries or investigations relating to this offence, the legislator permitted an encroachment on individual freedom and the rights of the defence that cannot be regarded as proportionate with the goal pursued; that accordingly, subparagraph 8-bis of Article 706-73 of the Code of Criminal Procedure violates these constitutional requirements and must be ruled unconstitutional;

• THE CONSEQUENCES OF THE ENACTMENT OF THE AFOREMENTIONED LAW OF 27 MAY 2014:

14. Considering that, according to the Prime Minister, the amendment made to Article 706-88 of the Code of Criminal Procedure by the aforementioned Law of 27 May 2014 put an end to the unconstitutionality objected to by the applicants, and hence that there are in any case no grounds to annul the provisions ruled unconstitutional;

15. Considering that Article 4 of the aforementioned Law of 27 May 2014 completes Article 706-88 of the Code of Criminal Procedure with a subparagraph providing that: "This Article shall not apply to the offence provided for under subparagraph 8-bis of Article 706-73 or, if they relate to this major offence, to the offences referred to in subparagraphs 14 and 16 of this Article. Nevertheless, it may be applied on an exceptional basis if the offences were committed in circumstances that jeopardised the security, dignity or life of other people or the fundamental interests of the nation as defined under Article 410-1 of the Criminal Code or if one of the actions constituting the offence was committed abroad where, in view of their complexity, an extension of the period in police custody is indispensable for prosecution or the conduct of investigations necessary in order to establish the truth. Orders extending the period in police custody may be adopted by the custodial judge, upon request by the public prosecutor, or by the investigating judge. They must be supported by specific reasons and refer to the factual circumstances establishing that the prerequisites laid down under this subparagraph are met. The sixth and seventh subparagraphs of this Article shall not apply";

16. Considering that neither the constitutive elements of the offence of fraud nor the aggravating circumstances applicable to this offence refer to jeopardy to the safety, dignity or life of other persons; that the fact of obtaining the transfer funds, valuables or any property through violence or threats is classified as extortion; that in permitting police custody to be ordered in the manner provided for under Article 706-88 of the Code of Criminal Procedure for the offences of conspiracy to defraud by an organised gang in cases in which the acts were carried out in circumstances that jeopardised the safety, dignity or life of other persons or the "fundamental interests of the nation as defined under Article 410-1 of the Criminal Code" or if any of the actions constituting the offence was committed abroad, the provisions introduced into Article 706-88 of the Code of Criminal Procedure by the Law of 27 May 2014 did not put an end to the unconstitutionality of subparagraph 8-bis of Article 706-73 of the Code of Criminal Procedure;

• THE TEMPORAL EFFECT OF THE RULING THAT SUBPARAGRAPH 8-BIS OF ARTICLE 706-73 OF THE CODE OF CRIMINAL PROCEDURE IS UNCONSTITUTIONAL:

17. 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;

18. Considering that the inclusion of a crime or major offence in the list of offences covered by Article 706-73 of the Code of Criminal Procedure also has the effect of enabling the exercise of these special powers of inquiry or investigation provided for under title XXV of book IV of the Code of Criminal Procedure, which are applicable to all offences falling under Article 706-73; that accordingly, the assessment of the temporal effect of the ruling that the subparagraph 8-bis of Article 706-73 is unconstitutional also requires an assessment of the constitutionality of the recourse to these special powers of inquiry or investigation;

19. Considering that Article 706-80 of the Code of Criminal Procedure enables the competence of the officers or agents of the investigating police to be extended to the entire country in order to carry out surveillance of persons suspected of having committed certain offences, unless objected to by the public prosecutor, who must be informed in advance; that, where justified by the requirements of the inquiry or investigation, Articles 706-81 to 706-87 enable the public prosecutor or the investigating judge to authorise the organisation of an operation to infiltrate an officer or agent of the investigating police involving the "surveillance of persons suspected of having committed a crime or major offence by passing him- or herself off with these persons as one of their fellow perpetrators, accomplices or as a seller of stolen goods";

20. Considering that Articles 706-89 to 706-94 lay down the conditions subject to which the custodial judge or the investigating judge may authorise searches, inspections of private premises and the seizure of incriminating evidence outside of the hours provided for under Article 59 during a preliminary inquiry, an inquiry following detention in flagrante delicto or a preparatory investigation;

21. Considering that Article 706-95 provides that, if justified by the requirements of the inquiry following detention in flagrante delicto or the preliminary inquiry, the custodial judge may authorise the interception, recording and transcription of communications exchanged through telecommunications devices;

22. Considering that Articles 706-96 to 706-102-9 provide that, if necessary owing to information requirements, the investigating judge may issue an order supported by reasons authorising the deployment under his or her authority and control, on the one hand, of a "technical device designed to hear, preserve, transmit or record words spoken by any person or persons in a private or confidential context, in private or public places or vehicles, or the images of any person or persons in a private place, without the consent of the persons concerned" and on the other hand of a "technical device designed to access computer data in all locations, to record, store and transmit such data, such that they may be displayed on a screen for the user of an automated data processing system or such that they may be introduced therein by data input, without the consent of the persons concerned";

23. Considering that Article 706-103 provides that, during the course of the judicial inquiry, the custodial judge may order protective measures against moveable or immoveable property under joint or individual ownership of the person under examination in order to guarantee the payment of fines incurred and, as the case may be, the payment of compensation to victims;

24. Considering that by permitting the exercise of these special powers of inquiry and investigation for the offences of conspiracy to defraud by an organised gang, the legislator considered that the difficulty in apprehending the perpetrators of these offences results from the existence of a group or network, the identification of which, the gathering of knowledge concerning which and the dismantling of which raises complex problems; that having regard to the seriousness of the offence of conspiracy to defraud by an organised gang, to this effect the legislator was able to lay down special rules applicable to surveillance and investigation within inquiries and investigations relating to such an offence; that taking account of the guarantees associated with the implementation of these special measures of inquiry and investigation, the encroachments on the respect for private life and ownership rights resulting from their implementation are not disproportionate having regard to the goal pursued;

25. Considering in the first place that the immediate repeal of subparagraph 8-bis of Article 706-73 of the Code of Criminal Procedure would have the effect not only of preventing the holding of persons in police custody for ninety-six hours for the offences of conspiracy to defraud by an organised gang, but would also hinder the exercise of other special powers of surveillance and investigation provided for under title XXV of book IV of the Code and would thus have manifestly excessive consequences; that in order to enable the legislator to remedy the unconstitutionality of subparagraph 8-bis of Article 706-73 of the Code of Criminal Procedure, it is appropriate to defer the date of this repeal until 1 September 2015;

26. Considering in the second place that in order to put an end to the unconstitutionality ascertained starting from the date of publication of this decision, there are grounds to rule that the provisions of subparagraph 8-bis of Article 706-73 of the Code of Criminal Procedure must not be interpreted as enabling police custody as provided for under Article 706-88 of the Code of Criminal Procedure to be ordered in relation to the offence of conspiracy to defraud by an organised gang;

27. Considering thirdly that the calling into question of acts of criminal procedure adopted on the basis of the provisions ruled unconstitutional would violate the objective of constitutional standing that the perpetrators of offences should be brought to justice and would have manifestly excessive consequences; that accordingly, police custody ordered prior to the publication of this decision and other measures adopted prior to 1 September 2015 in accordance with the provisions ruled unconstitutional cannot be contested on the basis of this unconstitutionality,

HELD:

Article 1.- Subparagraph 8-bis of Article 706-73 of the Code of Criminal Procedure is unconstitutional.

Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect subject to the reservation stated in recital 26 and in the conditions specified in recitals 25 and 27.

Article 3.- There are no grounds for the Constitutional Council to rule on the application for a priority preliminary ruling on the issue of constitutionality concerning the first five subparagraphs of Article 706-88 of the Code of Criminal Procedure.

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 Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 9 October 2014, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL and Ms Nicole MAESTRACCI.