THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 25 September 2017 by the Conseil d'État (Decision no. 411771 dated 22 September 2017), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for La Ligue des Droits de l'Homme [the League of Human Rights] by the firm Spinosi and Sureau, Attorneys at the Conseil d'État and the Cour de cassation. It was recorded by the General Secretariat of the Constitutional Council under number 2017-677 QPC. It relates to compliance with the rights and freedoms guaranteed by the Constitution under Article 8-1 of Law number 55-385 of 3 April 1955 relating to states of emergency, in its drafting from Law number 2016-987 of 21 July 2016, extending the enforcement of Law number 55-385 of 3 April 1955 relating to state of emergency and regarding reinforcement measures in the fight against terrorism.
In light of the following texts:
- the Constitution;
- Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
- Law no. 55-385 of 3 April 1955 on states of emergency;
- Law no. 2016-987 of 21 July 2016 extending the application of Law no. 55-385 of 3 April 1955 on states of emergency and regarding reinforcement measures in the fight against terrorism;
- 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 the applicant association by the firm Spinosi and Sureau, registered on 17 October and 2 November 2017;
- the observations of the Prime Minister, registered on 17 October 2017;
- the documents produced and appended to the case file;
Having heard Mr. Patrice Spinosi, Esq. attorney at the Conseil d'État and the Cour de cassation on behalf of the applicant and Mr. Philippe Blanc, appointed by the Prime Minister, at the public hearing of 22 November 2017;
And having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:
Article 8-1 of the Law of 3 April 1955 mentioned herein above, in its drafting from the Law of 21 July 2016 mentioned herein above, establishes that, when a state of emergency has been declared in certain areas, pursuant to Article 2 of this Law:
“In the areas mentioned in Article 2 of this Law, the prefect may authorize, based upon a motivated decision, the agents mentioned in sections 2° to 4° of Article 16 of the Code of Criminal Procedure and, under their responsibility, those mentioned in Article 20 and in sections 1°, 1° bis and 1° ter of Article 21 of this same Code to carry out identity verification as established in the eighth subparagraph of Article 78-2 of said Code, the visual inspection and searching of bags as well as inspections of vehicles being driven, stopped or parked on public streets or in areas accessible to the public.
“The decision of the prefect shall designate the areas in question, which must be precisely defined, as well as the term of the authorization, which may not exceed 24 hours.
“The last three subparagraphs of II and the last two subparagraphs of III of Article 78-2-2 of the same Code are applicable to operations carried out pursuant to this Article.
“The decision of the prefect mentioned in the first subparagraph of this Article shall be immediately sent to the State Prosecutor.”
The applicant association contest these provisions insofar as they allow judicial police services, upon authorization of the prefects, to carry out, in areas where a state of emergency has been declared, visual inspection and searching of bags as well as inspections of vehicles, without application of these measures being contingent any upon particular conditions or threats or any effective judicial oversight thereof being exercised. The result is an infringement of the freedom to come and go, the right of respect for private life, the principle of equality before the law and the right to effective legal recourse, as well as the limits of the legislature's competence insofar as it affects these rights and freedoms.
-On the merits:
3. 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 harmonization 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 come and go, making up the personal freedoms protected under Articles 2 and 4 of the Declaration of the Rights of Man and the Citizen of 1789 and the right to respect for private life, protected by the same Article 2.
Pursuant to the first subparagraph of Article 8-1 of the Law of 3 April 1955, in areas where a state of emergency has been declared, the prefect may authorize, based upon a motivated decision, judicial police services and, under their responsibility, police officers and certain assistant police officers to carry out identity verification, the visual inspection and searching of bags as well as inspections of vehicles being driven, stopped or parked on public streets or in areas accessible to the public.
It follows from the other subparagraphs of Article 8-1, on the one hand, that the prefect must precisely designate the areas involved in these operations, as well as the timeframe during which they are authorized, which cannot exceed 24 hours, and on the other hand, that some of the guarantees applicable to inspections, searches and visits carried out in a judicial context are applicable to operations carried out on the basis of Article 8-1.
However, these operations may be carried out, in the areas designated by the prefect's decision, against any person, no matter his/her behavior and without his/her consent. If it is the legislature's responsibility to establish that the operations carried out within this framework may not be related to the person's behavior, the practice of these operations in a generalized and discretionary manner would be incompatible with the freedom to come and go and with the right to respect for private life. However, by establishing that these operations may be authorized in any area where a state of emergency applies, the legislature allowed them to be carried out without them necessarily being justified by the special circumstances that would establish a risk of attack on public safety in the areas in question.
Therefore, the legislature did not ensure harmonization between, on the one hand, the constitutional objective of safeguarding against attacks on public safety, and on the other, the freedom to come and go and the right to respect for private life. As a result, without the need to examine other grievances, the contested provisions 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 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 have produced before this declaration took 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. In this case, in the event of a state of emergency, the immediate removal of the contested provisions would have the effect of depriving the administrative authority the power to authorize these identity verifications, baggage searches and vehicle inspections. It would also lead to obviously excessive consequences. Consequently, the date of repeal of the contested provisions should be deferred to 30 June 2018.
THE CONSTITUTIONAL COUNCIL RULES:
Article 1. - Article 8-1 of Law no. 55-385 of 3 April 1955 on the state of emergency, in its drafting from Law no. 2016-987 of 21 July 2016, extending the enforcement of Law no. 55-385 of 3 April 1955 relating to states of emergency and regarding reinforcement measures in the fight against terrorism, is declared unconstitutional.
Article 2. - The declaration of unconstitutionality of Article 1 shall take effect under the conditions set out in paragraph 9 of this Decision.
Article 3. - This decision shall be published in the Journal official 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.