THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 1 August 2017 by the Cour de cassation (Criminal Division, Decision no. 2118 of 26 July 2017), under the conditions set out in Article 61-1 of the Constitution. This question was raised on behalf of Mr. Mikhail P., by the firm Sevaux-Mathonnet, Attorneys at the Conseil d'État and the Cour de Cassation. It was recorded by the General Secretariat of the Constitutional Council under number 2017-670 QPC. It concerns the conformity of Article 230-8 of the Code of Criminal Procedure with the rights and freedoms guaranteed by the Constitution.
Having regard to the following texts:
- the Constitution;
- Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
- the Code of Criminal Procedure;
- Law no. 2011-267 of 14 March 2011 on guiding and programming for carrying out national security, along with Decision no. 2011-625 DC of 10 March 2011 of the Constitutional Council;
- Law no. 2016-731 of 3 June 2016 reinforcing the fight against organised crime, terrorism and their financing, and improving the efficiency and the guarantees of criminal proceedings;
- the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;
Having regard to the following items:
- the observations presented on behalf of the applicant by the firm Sevaux-Mathonnet, registered on 22 August 2017;
- the observations presented by the Prime Minister, registered on 23 August 2017;
- the documents produced and attached to the case file;
Having heard Mr. Paul Mathonnet, Esq., attorney at the Conseil d'État and the Cour de cassation, for the applicant, and Mr. Philippe Blanc, appointed by the Prime Minister, at the public hearing of 17 October 2017;
In light of the notice in deliberation presented by the Prime Minister, registered on 24 October 2017;
And having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:
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 appeal filed before the Cour de Cassation against a decision handed down on 21 November 2016 by the Investigation Chamber of a court of appeals dismissing a request to erase the personal data of a criminal record. Accordingly, the Constitutional Council has been asked to decide on Article 230-8 of the Criminal Code as written pursuant to the Law of 3 June 2016 mentioned herein above.
Article 230-8 of the Code of Criminal Procedure, in this drafting, relates to criminal records that the services of the national police and the national "gendarmerie" may implement. It establishes: “Processing personal data is carried out under the supervision of the competent Public Prosecutor who requests that it be erased, completed or rectified, specifically in the event of legal reclassification. Rectification for legal reclassification is a matter of law. The Public Prosecutor decides on the follow-up regarding requests for erasure or rectification within one-month. In the event that a decision of discharge or acquittal becomes final, the personal data of the persons in question is erased, unless the Public Prosecutor decides that it be maintained, in which case this shall be recorded. When the Public Prosecutor decides to maintain the personal data regarding a person for whom the discharge or acquittal decision has become final, they shall advise the individual in question thereof. Decisions to dismiss or to close the case with no further action shall be recorded, unless the Public Prosecutor orders the erasure of personal data. When a decision is recorded, the data regarding the person in question can be subject to being seen within the framework of administrative inquiries established in Articles L. 114-1, L. 234-1 to L. 234-3 of the Code of National Security and Article 17-1 of Law no. 95-73 of 21 January 1995 on orientation and safety programming. The decisions of the Public Prosecutor set forth in this Subparagraph referring to maintaining or erasing personal data are made for reasons related to the purposes of the file regarding the nature or the circumstances of the offence committed or the personality of the individual in question.
“The decisions to erase or rectify personal data made by the Public Prosecutor are brought to the attention of data processors for all automatic data processing for which, subject to their own rules of erasure or rectification, these measures have consequences on the retention period of the personal data.
“The decisions of the Public Prosecutor in terms of erasure or rectification of personal data may be appealed before the President of the Investigation Chamber.
“The Public Prosecutor, in order to perform his duties, benefits from a direct access to automated processing of personal data set forth in Article 230-6”.
The applicant claims that these provisions infringe on the right to privacy in the sense that they allow only the individuals subject to a decision of acquittal, discharge, dismissal, or closing of their case to have their personal data erased from a criminal record file. By excluding individuals found guilty of an offence but exonerated from this measure, these provisions would be a disproportionate breach to privacy, given the nature of the data recorded, its retention period, the purposes of the police file and its scope of use.
Consequently, the priority matter of constitutionality concerns the first Subparagraph of Article 230-8 of the Code of Criminal Procedure.
- On its admissibility:
Pursuant to the provisions of the third subparagraph of Article 23-2 and the third subparagraph of Article 23-5 of the Ordinance of 7 November 1958 mentioned hereinabove, the Constitutional Council shall not decide on a priority preliminary ruling on a provision already declared constitutional on the grounds and procedures of a decision of the Constitutional Council, except due to a change in circumstances.
Article L. 230-8 of the Code of Criminal Procedure was enacted by the aforementioned Law of 14 March 2011. The Constitutional Council specifically examined this article in the "having regard to"11 to 13 of the Decision of 10 March 2011 mentioned hereinabove, and declared it constitutional. Following this compliance statement, the first Subparagraph of Article 230-8 was amended by the Law of 3 June 2016, in particular regarding the cases in which data may be erased from a criminal record file and the reasons for which such erasure may be decided. The contested provisions being different from those subject to the compliance statement, the priority matter of constitutionality is admissible.
- On the merits:
The freedom proclaimed by Article 2 of the 1789 Declaration of the Rights of Man and the Citizen includes the right to privacy. Consequently, collecting, recording, storage, consulting and communicating personal data must be justified by public interest and implemented in an adequate and proportionate manner.
Pursuant to Article 230-6 of the Code of Criminal Procedure, the national police and national "gendarmerie" services may implement automatic processing of personal data collected during preliminary or caught red-handed investigations or during rogatory commission investigations and relating to any felony or misdemeanour and certain class five felonies. Pursuant to the first Subparagraph of Article 230-7 of this same Code, this data processing may contain information on individuals for which serious or congruent indications indicating it is possible that they participated may exist, as authors or accomplices, in the performance of these infringements.
Pursuant to the contested provisions, this data processing is carried out under the supervision of the local competent Public Prosecutor. In the event that a decision of discharge or acquittal e becomes final, the personal data of the person in question shall be erased, unless the Public Prosecutor decides it should be retained. The Public Prosecutor may also order the erasure of personal data in the event of a decision of dismissal or closing of the case with no further action. Pursuant to Article 230-9 of the Code of Criminal Procedure, a judge is in charge of supervising the implementation of updating this data processing. The judge has the same erasure powers as the Public Prosecutor. It follows from constant case law that no person in question other than those being subject to a decision of acquittal, discharge, dismissal, or closing of the case with no further action may have their data erased, on the basis of the contested provisions. By authorising the creation of personal data processing documenting criminal records and the access to this data processing by authorities vested by the law with judicial police authority and by certain persons vested with administrative police authority, the legislature sought to provide them a tool to help them with judicial and certain administrative investigations. It also sought the objective of the constitutional value of searching for the authors of infringements and preventing attacks to the public order.
However, firstly, by establishing that criminal record files may contain information collected during an inquiry or investigation concerning a person for which serious or congruent indications indicating that that they may have participated in the performance of certain infringements may exist, the legislature allowed this file to contain particularly sensitive data. Thus, Article R. 40-26 of the Code of Criminal Procedure establishes that civil, professional or family details of the individual and photographs containing technical characteristics allowing for facial recognition may be recorded.
Secondly, criminal record files may pertain to a large number of individuals insofar as it pertains to information regarding all individuals suspected of a crime, infringement and certain class five felonies.
Thirdly, the legislature did not establish a maximum retention period of the information recorded on a criminal record file. Thus, Article R. 40-27 of the Code of Criminal Procedure establishes that they be kept for a period between 5 and 40 years depending on the age of the individual and the nature of the infringement.
Lastly, this information may be seen not only to establish criminal law infringement, to gather proof of these infringements and to find their authors, but also for the purposes of administrative police.
Therefore, by depriving individuals suspected in criminal procedures, other than those being subject to a decision of acquittal, discharge, dismissal, or closing of their case with no further action, of the possibility to have their personal data erased from the criminal record file, the contested provisions are a disproportionate infringement on the right to privacy. The first Subparagraph of Article L. 230-8 of the Code of Code of Criminal Procedure should therefore 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 this decision. The Constitutional Council shall determine the conditions and the limits according to which the effects produced by the provision shall be liable to challenge". 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 Constitutional Council's Decision. However, the provisions of Article 62 of the Constitution reserve for the latter the power both to set the date of repeal and to postpone its effects as well as to reconsider the effects that the provision may produce before this declaration takes effect.
The Constitutional Council does not have general discretionary powers of the same nature that Parliament does. It cannot indicate the modifications that must be made in order to remedy the ascertained unconstitutionality. The immediate repeal of the contested provisions would result in depriving all of the individuals with a criminal record file benefiting from a decision of acquittal, discharge, dismissal, or closing of their case with no further action, of the possibility to have their personal data erased. It would thus result in clearly excessive consequences. Consequently, it is best to postpone these contested provisions to 1 May 2018.
THE CONSTITUTIONAL COUNCIL DECIDES:
Article 1. - The first Subparagraph of Article 230-8 of the Criminal Code, in its drafting resulting in Law no. 2016-731 of 3 June 2016, reinforcing the provisions related to the fight against organised crime, terrorism and their financing, and improving the efficiency and the guarantees of criminal procedure, is unconstitutional.
Article 2. - The declaration of unconstitutionality of this Article 1 shall take effect under the conditions set out in Paragraph 16 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 26 October 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.
Made public on 27 October 2017.
JORF no. 0254 of 29 October 2017 text no. 38