Decision no. 2017-694 QPC of 2 March 2018

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 28 December 2017 by the Cour de Cassation (Criminal Division, Decision no. 3356 of 13 December 2017), under the conditions set out in Article 61-1 of the Constitution. This question was raised on behalf of Mr. Ousmane K., Mr. Kodjo B. and Mr. Youssef C. by the firm Waquet-Farge-Hazan, Attorneys at the Conseil d'État and the Cour de Cassation. It was registered by the General Secretariat of the Constitutional Council under number 2017-694 QPC. It concerns the conformity of Articles 362 and 365-1 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. 2011-939 of 10 August 2011 on the Participation of Citizens in the Functioning of Criminal Justice and the Adjudication of Minors, along with Decision no. 2011-635 DC of 4 August 2011 of the Constitutional Council;
• Law no. 2014-896 of 15 August 2014 on the individualisation of punishments and the improvement of the effectiveness of criminal penalties;
• Judgments no. 15-86.914, no. 16-80.389 and no. 16-80.391 of 8 February 2017 of the criminal division of the Cour de Cassation;
• 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 filed on behalf of the applicants by the firm Waquet−Farge−Hazan registered on 22 January 2018;
• the observations presented by the Prime Minister, registered on 22 January 2018;
• the observations from the intervening parties filed on behalf of Mr. Bernard C. by the firm Piwnica et Molinié, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 19 January and 5 February 2018;
• the observations from the intervening party filed on behalf of the real estate firm SCI Baraka by the firm Waquet−Farge−Hazan registered on 22 January 2018;
• the documents produced and attached to the case file;

After having heard Ms. Hélène Farge, Esq., Attorney at the Conseil d'État and the Cour de cassation, on behalf of the applicants and the real estate firm SCI Baraka, intervening party, Mr. Éric Dupont-Moretti, Esq. Attorney admitted to the Paris Bar, for the applicants, Ms. Marie Molinié, Esq., Attorney at the Conseil d'État and the Cour de cassation, for Mr. Bernard C., intervening party, and Mr. Philippe Blanc, appointed by the Prime Minister, at the public hearing of 13 February 2018;

And having heard the Rapporteur;

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE 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 in appeal proceedings regarding judgments of the Assize Court delivered in 2017. Therefore, the Constitutional Council is asked to decide on Article 362 of the Code of Criminal Procedure, in its drafting resulting from the Law of 15 August 2014 mentioned above, and Article 365-1 of the same Code, in its drafting resulting from the Law of 10 August 2011, mentioned above.

2. Article 362 of the Code of Criminal Procedure, in this drafting, sets the rules regarding the judgments from the Assize Court on penalties. It provides:
   “Where a positive answer is made on guilt, the president reads out the provisions of articles 132-18 and 132-24 of the Criminal Code to the jurors. The Assize Court then deliberates without interruption on the form of the sentence. Voting then takes place by secret ballot and separately for each person accused.
   “The sentencing decision is reached by an absolute majority of voters However, the maximum custodial sentence incurred may only be imposed by a majority of at least six votes when the Assize Court rules in the first instance and by a majority of at least eight votes when the Assize Court rules on appeal. If the maximum penalty incurred does not attain this majority, a sentence in excess of thirty years' criminal imprisonment may not be imposed where the penalty incurred is a life sentence, nor a sentence in excess of twenty years' felonious imprisonment where the penalty incurred is thirty years' felonious imprisonment. The same rules apply in the event of felonious detention. If the Assize Court responded positively to the matter regarding the applicability of the provisions of the second Subparagraph of Article 122-1 of the same Code, custodial sentences of a period equal or higher than two thirds the sentence initially imposed may only be decided on the decision of a qualified majority indicated in the second sentence of this Subparagraph.
   “If, after two ballots, a third ballot is taken during which the highest sentence suggested in the previous ballot is not considered If no sentence attains an absolute majority of votes in this third ballot, a fourth ballot is organised, and so on, by continuing to discard the highest sentence until a sentence is imposed.
   “When the Assize Court imposes a misdemeanour sentence, it may decide by a majority that the enforcement of the penalty will be suspended with or without probation.
   “The Assize Court also deliberates on the incidental or additional penalties.
   “Under the circumstances established in Article 706-53-13, it also deliberates, as the case may be, to potentially re examine the situation of the condemned individual before the entire penalty is executed in order to rule on a potential secure detention pursuant to Article 706-53-14”.

3. Article 365-1 of the Code of Criminal Procedure, in this drafting, deals with the motivation for the decision of the Assize Court. It establishes: “The presiding judge or one of the magistrates appointed by him drafts the grounds for the decision.
   “In the event of a conviction, the grounds consist in indicating the key evidence against the accused that, for each fact brought against the accused, convinced the Assize Court to reach such judgment. Such evidence is the one that was brought to light during deliberations conducted by the court and the jury pursuant to Article 356 prior to voting on these issues.
   “The grounds are indicated on a document attached to the questions sheet called the motivation sheet, which is signed pursuant to Article 364.
   “When, due to a particularly complex case, related to the number of accused individuals or the crimes that they are accused of, it is not possible to immediately draft the motivation sheet, it must then be drafted, included in the record and filed with the Registrar of the Assize Court at the latest within a period of three days from the time the decision is delivered”.

4. The applicants and the intervening parties claim that these provisions, considering the fact that they do not impose on the Assize Court to indicate the grounds for the penalty, infringe on the principles of necessity and legal penalties, the principle of individualisation of penalties, of the right to fair and equitable proceedings, on the rights of defence and on the principle of equality before the law and before justice.

5. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the second Subparagraph of Article 365-1 of the Code of Criminal Procedure.

• On its admissibility:

6. 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 be asked to 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.

7. Article L. 365-1 of the Code of Criminal Procedure was enacted by the Law of 10 August 2011. The Constitutional Council specifically examined this Articles in Sections 29 to 31 its Decision of 4 August 2011 mentioned hereinabove, and declared it constitutional. However, since this declaration of constitutionality, on the one hand, the Cour de cassation decided, in the three decisions dated 8 February 2017 mentioned above, that the provisions of Article 365-1 of the Code of Criminal Procedure exclude the possibility of the Assize Court to provide grounds of the penalty that it delivers in case of a conviction. On the other hand, the first Subparagraph of Article 362 of the Code of Criminal Procedure has been modified by the Law of 15 August 2014 in order to establish that in the event of a conviction, the presiding judge of the Assize Court reads out to the jury Articles 130-1 and 132-1 of the Criminal Code, which indicate the purposes of the penalty and the necessity of individualising it. This results in a change in circumstances justifying the contested provisions being re-examined

• On the merits:

8. It follows from Articles 7, 8 and 9 of the Declaration of the Rights of Man and the Citizen of 1789 that it is the legislature's responsibility, when exercising their duty, to establish the rules of criminal law and criminal procedure in a way that is not arbitrary in searching for those committing infractions, in judging accused individuals as well as in issuing and implementing penalties. The principle of individualisation of penalties, which results from Article 8 of this Declaration implies that criminal penalties may only be applied pursuant to the express ruling of a court, taking into account the individual circumstances specific to each case. These constitutional requirements impose that decisions and convictions must be motivated, both for the guilt as well as for the penalty.

9. According to Article 365-1 of the Code of Criminal Procedure, the presiding judge or one of the magistrates appointed by him must draft the motivation of the judgment delivered by the Assize Court According to the second Subparagraph of this Article, in the event of a conviction, the grounds for the decision consist in indicating the key elements that, for each fact brought against the accused, led the Assize Court to reach such a judgment. However, it follows from the Cour de Cassation's constant case law that Article 365-1 of the Code of Criminal Procedure prohibits the Assize Court from declaring the grounds for the penalty that it delivers.

10. By not compelling the Assize Court to state he grounds for the choice of penalty, the legislature infringed on the requirements of Articles 7, 8 and 9 of the Declaration of 1789. As a result, without reviewing other grievances, the second Subparagraph of Article 365-1 of the Code of Criminal Procedure should be declared unconstitutional.

• On the Effects of the Ruling of Unconstitutionality:

11. According to the second Subparagraph of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of Article 61−1 is repealed as of the publication of the decision of the Constitutional Council or as of a subsequent date determined by said 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.

12. Immediate repeal of the contested provisions would have the effect of eliminating the methods according to which, in the event of conviction, the grounds for a judgment of the Assize Court must be drafted with regard to guilt. It would thus lead to manifestly excessive consequences. Therefore, in order to enable the legislature to remedy the unconstitutional situation ascertained, it is appropriate to defer the date of this repeal until 1 March 2019.

13. In order to put an end to the unconstitutional situation from the publication of this decision, it is best to decide, for judgments of the Assize Court issued from proceedings initiated after this date, that the provisions of the second Subparagraph of Article 365-1 of the Code of Criminal Procedure must be interpreted as also imposing upon the Assize Court to indicate, on the "feuille de motivation", the key elements leading it to such ruling.

14. The rulings of the Assize Court handed down in last resort before the publication of this judgment and those handed down from proceedings initiated before this date cannot be challenged on the basis of this unconstitutionality.

THE CONSTITUTIONAL COUNCIL DECIDES:
Article 1. - The second Subparagraph of Article 365-1 of the Code of Criminal Procedure is unconstitutional.
Article 2. - The declaration of unconstitutionality of Article 1 shall take effect under the conditions set out in Paragraphs 12 to 14 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 1 March 2018, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Dominique LOTTIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 2 March 2018.

JORF no. 0052 of 3 March 2018 text no. 55