THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON two priority matters of constitutionality on 24 June 2016 by the Cour de cassation (Criminal Division, Decisions nos. 3780 and 3781 of 21 June 2016), under the conditions set out in Article 61-1 of the Constitution. One was raised on behalf of Mr. Georges F. by the firm Spinosi et Sureau, Attorneys at the Conseil d'État and the Cour de Cassation, the other was raised on behalf of Mr. Nordine B. by the firm Didier et Pinet, Attorneys at the Conseil d'État and the Cour de Cassation. They were registered with the general secretariat of the Constitutional Council respectively under no. 2016-567 QPC and no. 2016-568 QPC. They relate to compliance with the rights and freedoms that the Constitution guarantees under Section 1° of Article 11 of Law number 55-385 of 3 April 1955 relating to states of emergency, in its drafting resulting in Ordinance number 60-372 of 15 April 1960, modifying certain provisions of Law number 55-385 of 3 April 1955 relating to states of emergency.
In light of the following texts:
- the Constitution;
- Constitutional Law number 2008-724 of 23 July 2008 on modernising the institutions of the Fifth Republic;
- Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Organic Law on the Constitutional Council;
- Law no. 55-385 of 3 April 1955 on states of emergency;
- Ordinance no. 60-372 of 15 April 1960 modifying certain provisions of Law no. 55-385 of 3 April 1955 relating to states of emergency;
- Law no. 85-96 of 25 January 1985 on states of emergency in New Caledonia and Dependencies;
- Law no. 2015-1501 of 20 November 2015 extending the application of Law no. 55-385 on states of emergency and enhancing the efficacy of its provisions;
- Decision no. 2016-536 QPC of the Constitutional Council of 19 February 2016;
- the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;
In light of the following items:
- the observations presented on behalf of Mr. Georges F. by the firm Spinosi et Sureau, registered on 18 July and 1 August 2016;
- the observations presented on behalf of Mr. Nordine B. by the firm Didier et Pinet, registered on 18 July and 2 August 2016;
- the observations of the Prime Minister, registered on 18 July 2016;
- the observations in response presented for the association La Ligue des Droits de l'Homme [the League of Human Rights] by the firm Spinosi et Sureau, recorded on 18 July 2016;
- the documents produced and appended to the case file;
Having heard Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 13 September 2016;
And having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDED ON THE FOLLOWING:
It is appropriate to join the two priority matters of constitutionality in order to address them with a single decision.
Article 11 of the Law of 3 April 1955 mentioned herein above has been rewritten by the seventh Subparagraph of Article 1 of the Ordinance of 15 April 1960 mentioned herein above. It determines the specific measures that must be established by express provision of a decree declaring a state of emergency or the law extending it. Its Section 1° provides that this decree or this law may: "Allow the administrative authorities indicated in Article 8 the power to authorise searches of a home during the day and the night".
The applicants and the intervening association claim that these provisions, insofar as they allow administrative authorities to order searches of the home day and night without providing a guarantee as to their motives and their conditions, infringe on the right to respect for private life, the sanctity of the home as well as the right to effective legal remedy. They also claim that the legislature extended the scope of its authority in regard to the conditions that affect the rights and freedoms mentioned above.
- On the provisions referred to the Constitutional Council for review:
According to the first Subparagraph of Article 61-1 of the Constitution: If it is argued during proceedings in progress before a court that a legislative provision violates any of the rights and freedoms guaranteed under the Constitution, the Constitutional Council may be called to examine this matter on referral from the Conseil d'État or the Cour de Cassation, which shall decide on it by a determined deadline. The Constitutional Council may only be called under the conditions established by this Article on provisions of a legislative nature.
Prior to Article 38 of the Constitution being modified by Article 14 of the Constitutional Law of 23 July 2008 mentioned herein above, the ratification of all or part of the provisions of an ordinance applied by Article 38 of the Constitution may result in a law, without this ratification being the direct objective that necessarily requires it.
The Law of 25 January 1985 mentioned herein above, after an interruption, re-established a state of emergency in New Caledonia until 30 June 1985. This law, by an express provision, applied Section 1° of Article 11 of the Law of 3 April 1955 conferring upon the High Commissioner of the Republic in New Caledonia the power to order searches of a home day or night. Additionally, the Law of 25 January 1985, without having the direct objective of ratifying the seventh Subparagraph of Article I of the Ordinance of 15 April 1960, by making the contested provisions applicable, necessarily required such ratification. Subsequently, the provisions of Section 1° of Article 11 of the Law of 3 April 1955 in its rewriting resulting in the Ordinance of 15 April 1960 are legislative provisions. It is the Constitutional Council's right to decide on their constitutionality.
- On the conformity of the contested provisions with the rights and freedoms guaranteed by the constitution:
The Constitution does not exclude the possibility for the legislature to lay out a regime for states of emergency. In this framework, it is its responsibility to ensure harmonisation between, on the one hand, safeguarding against attacks on public safety, and on the other hand, respecting the rights and freedoms granted to all those who live on French soil. Among these rights and freedoms is the right to respect for private life, specifically the sanctity of the home, protected under Article 2 of the 1789 Declaration of the Rights of Man and the Citizen.
The measures of the contested provisions may be ordered by the Ministry of the Interior for all of the territory where a state of emergency is in effect, or by the Prefect in the department, only when a state of emergency has been declared and only in the areas located in the zone covered by this state of emergency. This state of emergency may be declared, pursuant to Article 1 of the Law of 3 April 1955, "in the case of imminent peril resulting from a serious attack on public safety" or "in the case of events that, by their nature or gravity, present a public disaster". However, by subjecting these searches to no conditions and framing their implementation in no guarantee, the legislature did not ensure harmonisation between the objective of the constitutional value of safeguarding against attacks on public safety and the respect for private life. Consequently, and without the need to examine other claims, the provisions of Section 1° of Article 11 of the Law of 3 April 1955, in its rewriting resulting in the Ordinance of 15 April 1960, which infringes on Article 2 of the Declaration of 1789, should be declared unconstitutional.
- On the effects of the ruling of unconstitutionality:
According to the second Subparagraph of Article 62 of the Constitution: “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 according to which the effects produced by the provision shall be liable to be challenged". In principle, the declaration of unconstitutionality should benefit the individual who brought up this priority matter, and the provision declared unconstitutional may not be applied in proceedings pending on the date of publication of the decision of the Constitutional Council. However, the provisions of Article 62 of the Constitution provide the Constitutional Council with the power 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.
Article 4 of the Law of 20 November 2015 mentioned herein above re-writes Article 11 of the Law of 3 April 1955, in which Paragraph I forms the basis of a new regime of searches undertaken in the framework of a state of emergency. In its Decision number 2016-536 QPC mentioned herein above, the Constitutional Council deemed the provisions of Paragraph I of Article 11 of the Law of 3 April 1955 in its rewriting constitutional, with the exception of those of the second sentence of its third Subparagraph relating to seizing computer data. Therefore, in this case, there is no need to defer the effects of unconstitutionality of the contested provisions. This should take effect from the date of the publication of this Decision.
However, calling into question the actions of criminal procedure following a measure undertaken on the foundation of the provisions that have been declared unconstitutional infringes upon the objective of the constitutional value of safeguarding against attacks on public safety and has manifestly excessive consequences. Thus, the measures undertaken on the foundation of the provisions that have been declared unconstitutional may not, within the framework of all of the criminal procedures following them, be contested on the basis of this unconstitutionality.
THE CONSTITUTIONAL COUNCIL RULES:
Article 1. - The provisions of Section 1° of Article 11 of Law number 55-385 of 3 April 1955 relating to states of emergency, in its drafting resulting in Ordinance number 60-372 of 15 April 1960, modifying certain provisions of Law number 55-385 of 3 April 1955 relating to states of emergency are unconstitutional.
Article 2. - The declaration of the unconstitutionality of Article 1 shall take effect on the date of publication of this decision under the conditions set down in its Paragraphs 10 and 11.
Article 3. - This decision shall be published in the Journal officiel of the French Republic and notified under the conditions provided for in Article 23-11 of the Ordinance of 7 November 1958 referred to herein above.
Deliberated by the Constitutional Council in its session of 22 September 2016, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS and Mr. Michel PINAULT.
Made public on 23 September 2016.