On 18 January 2016 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received from the Conseil d'État (decision no. 395091 of 15 January 2016), an application for a priority preliminary ruling on the issue of constitutionality raised on behalf of the association Human Rights League by the SCP Spinosi et Sureau, Attorney at the Conseil d'État and the Cour de Cassation, regarding the conformity of Article 8 of Law no. 55-385 of 3 April 1955 on the state of emergency with the rights and freedoms guaranteed by the Constitution, registered with the general secretariat of the Constitutional Council as no. 2016-535 QPC.
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 Law no. 55-385 of 3 April 1955 on the state of emergency;
- Having regard to Law 2011-525 of 17 May 2011 on the simplification and improvement of the quality of the law;
- 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 filed on behalf of the applicant association by the SCP Spinosi et Sureau, registered on 26 January and 1 February 2016;
- Having regard to the observations of the Prime Minister, registered on 26 January 2016;
- Having regard to the observations in intervention filed on behalf of Mr Pierre B., Ms Cléa A. and Ms Claire G., Mr Adam S., Ms Alice B. and Mr Matthieu Q. by Alice Becker Esq., Raphaël Kempf Esq. and Marie Roch Esq., Attorneys at the Paris bar, registered on 26 January and 1 February 2016;
- Having regard to the documents produced and appended to the case file;
Having heard Patrice Spinosi Esq., Attorney at the Conseil d'État and the Cour de Cassation on behalf of the applicant association, Mr Becker Esq. and Mr Kempf Esq. on behalf of the interveners, and Mr Thierry-Xavier Girardot, appointed by the Prime Minister, at the public hearing of 11 February 2016;
Having heard the Rapporteur;
Considering that pursuant to Article 8 of the aforementioned Law of 3 April 1955 as in force following the enactment of the aforementioned Law of 17 May 2011: "The Minister of the Interior may order for the entire territory in which a state of emergency has been declared, and the prefect may order within the department, the temporary closure of performance halls, public houses and meeting places of all kinds in the areas specified by the decree provided for under Article 2." Meetings that are of such a nature as to provoke or foment disorder may also be prohibited as a general matter or in a specific case";
Considering that, according to the applicant association and the interveners, in vesting the administrative authorities with the power to order the temporary closure of meeting places and to prohibit meetings without specifying the conditions governing the imposition of these measures and the grounds justifying them, and without providing for their maximum duration and the existence of forms of appeal, the contested provisions violate freedom of expression and communication, freedom of collective expression of ideas and opinions, freedom of assembly, freedom of association, freedom of trade and industry, freedom of enterprise and the right to effective relief; that for the same reasons, the legislator is claimed to have acted in breach of its competence under conditions that affect the rights and freedoms mentioned above;
- The objections alleging the violation of the rights and freedoms guaranteed by article 11 of the 1789 declaration and article 34 of the constitution:
Considering that the Constitution does not exclude the possibility that the legislator may establish a regime to govern the state of emergency; that within this context, it falls to it to ensure that a balance is struck between, on the one hand, the prevention of public order offences and, on the other hand, the respect for the rights and freedoms granted to all persons resident in the Republic; that these rights and freedoms include the right to collective expression of ideas and opinions, protected under Article 11 of the 1789 Declaration of the Rights of Man and the Citizen;
Considering that the fact that the legislator acted in excess of its own powers may only be invoked in relation to an application for a priority preliminary ruling on the issue of constitutionality in the event that this breach itself impinges upon a right or freedom guaranteed by the Constitution; that pursuant to Article 34 of the Constitution: "Statutes shall determine the rules concerning ... the fundamental guarantees granted to citizens for the exercise of their civil liberties";
Considering that the contested provisions do not have the object or effect of regulating the conditions under which demonstrations are prohibited on public streets;
Considering that the contested provisions enable the administrative authorities to order the temporary closure of performance halls, public houses and meeting places of all kinds and to prohibit meetings of such a nature as to provoke or foment disorder; that insofar as they restrict freedom of association, these provisions violate the right to collective expression of ideas and opinions;
Considering in the first place that the temporary closure and prohibition of meetings provided for under the contested provisions can only be ordered if a state of emergency has been declared and only for the locations situated in the area covered by the state of emergency or for meetings that are to be held there; that pursuant to Article 1 of the Law of 3 April 1955, a state of emergency may only be declared "in situations involving imminent danger resulting from serious breaches of public order" or "in circumstances which, due to their nature and seriousness, have the character of public disaster";
Considering secondly that, on the one hand, both the temporary closure of performance halls, public houses and meeting places of all kinds and the duration of such orders must be justified by and proportionate with the requirements of the preservation of public order that gave cause for such a closure; that on the other hand the prohibition of a meeting must be justified by the fact that such a meeting is "of such a nature as to provoke or foment disorder" and is proportionate with the grounds that gave cause for it; that any such measures that are individual in nature must be supported by reasons; that the administrative courts are charged with ensuring that each of these measures is suited to, necessary for and proportionate with the aim pursued by it;
Considering thirdly that, pursuant to Article 14 of the Law of 3 April 1955, the temporary closure and the prohibition on meetings adopted in accordance with this Law will cease to have effect at the latest at the time when the state of emergency ends; that a state of emergency, which may be declared by decree adopted in the Council of Ministers, must after a period of twelve days be extended by a Law which sets its duration; that the duration must not be excessive having regard to the imminent danger or to the public disaster that led to the declaration of a state of emergency; that if the legislator extends the state of emergency by a new Law, the temporary closure and prohibition on meetings ordered previously cannot be extended without being renewed;
Considering that it follows from the above that the contested provisions, which are not unconstitutional on the grounds that they involve a failure to exercise powers, reconcile the right to collective expression of ideas and opinions and the objective of constitutional standing of safeguarding public order in a manner that is not manifestly unbalanced;
- The objections alleging the violation of the rights and freedoms guaranteed by article 4 of the 1789 declaration:
Considering that the legislator is free to subject the freedom of enterprise, as resulting from Article 4 of the 1789 Declaration, to limitations associated with constitutional requirements or which are justified by general interest, provided that this does not result in harm that is disproportionate to the objective pursued;
Considering that the contested provisions enable the administrative authorities, during a state of emergency and within the area covered by the state of emergency, to order the temporary closure of performance halls, public houses and meeting places of all kinds; that this results in a violation of freedom of enterprise;
Considering that, for the reasons mentioned in recitals 7 to 9, the contested provisions reconcile freedom of enterprise with the objective of constitutional standing of safeguarding public order in a manner that is not manifestly unbalanced;
- The other objections:
Considering that the contested provisions do not deprive the individuals affected by a temporary closure order or a prohibition on meeting of the ability to contest it before the administrative courts, including by referral; that it falls to such a court to assess, having regard to the matters debated by the parties before it, whether there are grounds to justify the contested closure or ban; that, accordingly, the requirements of Article 16 of the 1789 Declaration have not been violated;
Considering that the contested provisions, which do not have the object or effect of laying down the conditions under which associations may be established and carry on their activity, do not violate the fundamental principle recognised under the laws of the Republic of freedom of association;
Considering that Article 8 of the Law of 3 April 1955, which does not violate any right or freedom guaranteed under the Constitution, must be upheld as constitutional;
Article 1.- Article 8 of Law no. 55-385 of 3 April 1955 on the state of emergency is constitutional.
Article 2.- 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 18 February 2016, sat on by: Mr Jean-Louis DEBRÉ, President, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Renaud DENOIX de SAINT MARC, Mr Jean-Jacques HYEST, Mr Lionel JOSPIN and Ms Nicole MAESTRACCI.
Announced on 19 February 2016.
JORF no. 0044 of 21 February 2016, text no. 26