Decision no. 2018-768 QPC of 21 March 2019

On 21 December 2018, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (first civil division, case no. 1242 of the same date). This application was made on behalf of Adama S. by SCP Zribi et Texier, Attorney for the Conseil d'État and for the Cour de Cassation. It was registered by the general secretariat of the Constitutional Council under no. 2018-768 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees in Article 388 of the Civil Code, in its formulation resulting from Act No. 2016-297 of 14 March 2016 relating to the protection of children.

Having regard to the following texts:

• the Constitution;
• Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• the Civil Code;
• Act No. 2016-297 of 14 March 2016 relating to the protection of children;
• the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
  Having regard to the following documents:
• the observations on behalf of the applicant by SCP Zribi et Texier, registered on 14 January 2019;
• the observations of the Prime Minister, registered on 14 January 2019;
• the observations of intervenors on behalf of the Groupe d'information et de soutien des immigrés, Cimade, Médecins du monde, Association nationale d'assistance aux frontières pour les étrangers, Avocats sans frontières France, and the Secours catholique associations, and for the Syndicat des avocats de France and the Syndicat de la magistrature by SCP Zribi et Texier, registered on 14 January 2019;
• the observations of intervenors on behalf of the Avocats pour la défense des droits des étrangers association by Brigitte Jeannot, Attorney at the Nancy Bar, registered on 14 January 2019;
• the observations of intervenors on behalf of the Ligue des droits de l'homme association, by SCP Spinosi et Sureau, Attorney at the Conseil d'État and at the Cour de Cassation, registered on 14 January 2019;
• the second observations on behalf of the applicant by SCP Zribi et Texier, registered on 29 January 2019;
• the second observations of intervenors on behalf of the Groupe d'information et de soutien des immigrés, Cimade, Médecins du monde, Association nationale d'assistance aux frontières pour les étrangers, Avocats sans frontières France, and the Secours catholique associations, and for the Syndicat des avocats de France and the Syndicat de la magistrature by SCP Zribi et Texier, registered on 29 January 2019;
• the second observations of intervenors on behalf of the Avocats pour la défense des droits des étrangers association by Brigitte Jeannot, registered on 29 January 2019;
• the additional documents produced and appended to the case files;

After having heard Isabelle Zribi, Attorney at the Conseil d'État and at the Cour de Cassation, on behalf of the applicant and for the Groupe d'information et de soutien des immigrés association and other intervenors, Patrice Spinosi, Attorney at the Conseil d'État and at the Cour de Cassation, on behalf of the Ligue des droits de l'homme association, intervenor, Brigitte Jeannot, on behalf of the Avocats pour la défense des droits des étrangers association, intervenor, and Philippe Blanc, appointed by the Prime Minister, at the public hearing on 12 March 2019;
And after having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED THAT:

l. Article 388 of the Civil Code, in its formulation resulting from the aforementioned Act of 14 March 2016, stipulates:
“A minor is an individual of either sex who has not yet reached the full age of eighteen years.
“Radiological bone scans used to determine age in the absence of valid identification documents and when the alleged age does not seem to correspond, can only be carried out by decision of the judicial authority and with the consent of the party concerned.
“The conclusions of these scans, that must specify their margin of error, cannot by themselves be used to determine if the party concerned is a minor. Any doubt benefits the party concerned.
“In case of doubt as to whether the party concerned is a minor, age may not be evaluated through a pubertal development exam of primary and secondary sexual characteristics.”

2. According to the applicant, these measures firstly violate the protection of the best interest of the child founded on the tenth section of the Preamble of the Constitution of 1946, when the lack of reliability of radiological bone scans would lead to considering unaccompanied foreign minors as adults, and to consequentially exclude them from benefiting from legislative measures destined to protect them. It is also held that the right to the protection of health would be violated by the disputed provisions, in that they would authorise the use of a radiological exam with risks to health, without a medical purpose and without the actual consent of the party concerned. These provisions would also, for the same reasons, violate the principle of safeguarding the dignity of the individual. They would also violate the right to personal privacy in as much as they would lead to the exposure of medical data concerning unaccompanied minors, without said minors having given their consent. Lastly, the disputed provisions would be likely judged as not acting fully within the competence of jurisdiction (“incompétence négative”), infringing on the principle of equality before the law in that they would allow for bone scans in the absence of “valid identification documents” without further defining that notion or referring to other legislation that does define it.

3. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the second and third sections of Article 388 of the Civil Code.

4. The intervenors submit objections that are similar to those of the applicant. According to some of them, the disputed provisions also violate the right to physical integrity and the principle of precaution.

• Concerning the objection to the violation of the protection of the best interest of the child:

5. According to the tenth and eleventh sections of the Preamble of the Constitution of 1946: “The Nation shall provide the individual and the family with the conditions necessary to their development. - It shall guarantee to all, notably to children, mothers and elderly workers, protection of their health, material security, rest and leisure.”

6. This results in an obligation of protection of the best interest of the child. This obligation requires that minors present on the national territory benefit from the legal protection attached to their age. It follows that the rules related to determining the age of an individual must be bound by the necessary guarantees in order that minors not be incorrectly considered as adults.

7. The disputed provisions authorise the use of a radiological bone scan in order to contribute to determining the age of a person. Current scientific knowledge has established that the results of this type of exam can have a considerable margin of error.

8. However, firstly, only the judicial authority can decide to use such an exam.

9. Secondly, this exam can only be ordered if the person concerned does not have valid identification documents, and if the age that the person alleges does not correspond. It is up to the judicial authority to ensure that the subsidiary character of this exam is maintained.

10. Thirdly, this exam can only take place after the informed consent of the party concerned is obtained, in a language that the concerned person understands. In this regard, a person being an adult or a minor would not be deduced solely from their refusal to submit to a bone scan.

11. Lastly, the legislator has taken into account, in the guarantees that they have established, the existence of a margin of error providing boundaries for the conclusions of radiological exams. On the one hand, the legislator required that this margin of error be mentioned in the results of these exams. On the other hand, the legislator excluded that these conclusions could constitute the sole basis in determining a person's age. It is therefore the responsibility of the judicial authority to evaluate the status of minor or adult of this person, taking into account the other elements that were able to be collected, such as a social evaluation or interviews carried out by child protection services. Lastly, if the conclusions of the radiological exams contradict the other aforementioned determining elements, and that a doubt persists when considering all of the collected evidence, this doubt must favour the person concerned being considered a minor.

12. It is up to administrative and judicial authorities to give full force to the aforementioned guarantees.

13. It follows from the foregoing that, given the guarantees that limit the use of radiological bone exams for determining age, the legislator has not violated the requirement of protection of the best interest of the child that comes from the tenth and eleventh sections of the Preamble of the Constitution of 1946. The objection to the violation of this requirement must therefore be dismissed.

• Concerning the objection to the violation of the right to protection of health:

14. It is not for the Constitutional Council to substitute its judgement for that of the legislator on the health consequences of a radiological bone exam, once this judgement is not, as far as it knows, clearly inadequate.

15. Secondly, a radiological bone exam can only be ordered under the conditions specified in paragraphs 8, 9, and 10, and taking into account a medical opinion that would recommend against it due to specific risks that it could pose for the person concerned.

16. As such, the objection based on the violation of the right to protection of health must therefore be dismissed.

• Concerning the objections to the violation of the principle of safeguarding the dignity of the individual and the principle of inviolability of the human body:

17. The Preamble of the Constitution of 1946 reaffirmed that all human beings, without distinction as to race, religion or belief, have inalienable and sacred rights. Safeguarding the dignity of the individual from all forms of servitude and degradation is one of these rights, and constitutes a principle with constitutional value.

18. The disputed radiological bone scans are solely used to determine a person's age and cannot be carried out without their consent. They do not involve any internal surgical procedure on the body and do not involve any painful or invasive procedure, or one that infringes on the dignity of the individual. Consequently, they lack the characteristics of the objections made concerning the principle of safeguarding the dignity of the individual, and the inviolability of the human body.

• Concerning the other objections:

19. Firstly, the notion of “valid identification documents”, which refers to documents whose authenticity is established according to the rules provided for them, specifically Article 47 of the Civil Code, being sufficiently precise, the legislator in no way violated the breadth of their competence.

20. Secondly, the disputed provisions, which only permit radiological bone scans to be carried out to determine a person's age with their consent, also do not violate the right to respect of an individual's privacy.

21. The second and third sections of Article 388 of the Civil Code, which also do not violate the principle of precaution, nor do they violate any other right or freedom that the Constitution guarantees, must therefore be declared as conforming to the Constitution.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - The second and third sections of Article 388 of the Civil Code, in its formulation resulting from Act No. 2016-297 of 14 March 2016 relating to the protection of children, conform to the Constitution.
Article 2. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned Ordinance of 7 November 1958.

Ruled by the Constitutional Council in its 21 March 2019 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, Jacques MÉZARD and Michel PINAULT.

Published on 21 March 2019.