Decision no. 2016-594 QPC of 4 November 2016

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 04 August 2016 by the Cour de cassation (Criminal Division, Decision no. 4138 of 27 July 2016), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for Ms. Sylvie T. by Mr. Pierre-François Veil Esq. and Mr. David Père Esq., attorneys admitted to the Paris bar. It was recorded by the General Secretariat of the Constitutional Council under number 2016-594 QPC. It concerns the conformity of Articles 153 of the Code of Criminal Procedure with the rights and freedoms guaranteed by the Constitution.

In light of the following texts:

• the Constitution;
• Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Organic Law on the Constitutional Council;
• the Code of Criminal Procedure;
• Law no. 2004-204 of 9 March 2004 adapting the justice system to developments in crime;
• Law no. 2011-392 of 14 April 2001 on police custody;
• 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 filed on behalf of the applicant by the firm Piwnica et Molinié, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 24 August and 12 September 2016;
• the observations of the Prime Minister, registered on 26 August 2016;
• the documents produced and appended to the case file;

Having heard Mr. Emmanuel Piwnica, Esq., attorney at the Conseil d'État and the Cour de cassation, for the applicant, and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 20 October 2016;

And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED ON THE FOLLOWING:

1. A priority matter of constitutionality must be considered as relating to the provisions applicable to the dispute at the time it was raised. This matter was raised during an application for annulment before the Investigation Division of the Court of Appeal of Paris regarding criminal procedure actions occurring in June and November 2012. Thus the Constitutional Council has been asked to decide on Article 153-5 of the Code of Criminal Procedure as amended by the Law of 09 March 2004, mentioned herein above.

2. Article 153 of the Code of Criminal Procedure as written states: "Any witness summoned to be heard during a rogatory commission who is required to appear, must take an oath and give testimony. When there is no plausible reason to suspect that he or she has committed or attempted to commit an infraction, the witness may only be retained for the length of time strictly necessary to give testimony.
   "If this obligation is not satisfied, notice of this is given to the magistrate requiring that the individual be compelled to appear by law enforcement authorities. A witness who does not appear will incur the fine described in Article 434-15-1 of the Criminal Code.
   "The obligation to take an oath and give testimony is not applicable to individuals being detained in police custody, pursuant to the provisions of Article 154. The fact that individuals in police custody were heard after having sworn an oath however does not establish the grounds for nullifying the procedure".

3. The applicant claims that the obligation to swear an oath during the course of a criminal investigation, when it is required of a person who is suspected of having committed an infraction, infringes on the constitutional right to not speak and to not incriminate oneself. She claims that the second sentence of the last Subparagraph of Article 153 of the Code of Criminal Procedure is unconstitutional insofar as it does not allow nullification of hearings conducted under oath while under police custody undertaken within the framework of a rogatory commission.

4. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the second sentence of the last Subparagraph of Article 153 of the Code of Criminal Procedure.

• On the merits:

5. According to Article 9 of the Declaration of the Rights of Man and the Citizen of 1789: "Every person shall be presumed innocent until he or she is found guilty; if it is necessary to arrest an individual, all means that are not necessary to secure the individual must be severely limited by the law". It follows from this principle that no one should have to incriminate him or herself and thus, has the right to not speak.

6. Up until the aforementioned Law of 14 April 2011 took effect, pursuant to Article 63 of the Code of Criminal Procedure, only an individual for whom there exists one or more plausible reasons to suspect that this individual has committed or attempted to commit an infraction may be placed in police custody. From the time this law took effect, pursuant to Article 62-2 of the same Code, only an individual for whom there exists one or more plausible reasons to suspect that this individual has committed or attempted to commit a crime or offence punishable by a prison term may be placed in police custody. Pursuant to Article 63-1 of the same Code in its writing resulting in the Law of 14 April 2011, this person shall be immediately informed of his or her right, at hearings, to make statements, respond to questions that are asked or to not speak. Article 154 of the same Code establishes that these provisions are also applicable for rogatory commissions.

7. Furthermore, it follows from Articles 103 and 153 of the Code of Criminal Procedure that any person called to give testimony at a rogatory commission is required to swear an oath to "tell the truth, nothing but the truth".

8. Requiring a person in police custody to swear an oath to "tell the truth, nothing but the truth" may lead the person to believe that he or she does not have the right to not speak or may contradict the information he or she has received about this right. Therefore, by not allowing, under any circumstances, the nullification of the hearing carried out under oath while under police custody in the context of a rogatory commission, the contested provisions infringe on the suspected person's right to not speak. Consequently, the second sentence of the last Subparagraph of Article 153 of the Code of Criminal Procedure should be declared unconstitutional.

• On the effects of the ruling of unconstitutionality:

9. According to the second paragraph 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.

10. In this case, no motive should justify a delay of its effects of unconstitutionality. This should take effect from the date of the publication of this decision.

THE CONSTITUTIONAL COUNCIL RULES:

Article 1. - The second sentence of the last Subparagraph of Article 153 of the Code of Criminal Procedure as amended by the Law of 09 March 2004 on adapting the justice system to developments in crime is unconstitutional.

Article 2. - The declaration of unconstitutionality of this Article 1 shall take effect under the conditions set out in Paragraph 10 of this Decision.

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 03 November 2014, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 04 November 2016.