On 27 July 2020, the Constitutional Council, in the conditions provided for by Article 61 of the Constitution, received a referral to review the law instituting security measures against offenders having committed terrorist acts after said offenders have completed their sentence, under number 2020-805 DC, from the President of the National Assembly.
It also received a referral, on 28 July 2020, from Patrick KANNER, Maurice ANTISTE, Viviane ARTIGALAS, David ASSOULINE, Claude BÉRIT-DÉBAT, Joël BIGOT, Maryvonne BLONDIN, Nicole BONNEFOY, Yannick BOTREL, Muriel CABARET, Thierry CARCENAC, Catherine CONCONNE, Hélène CONWAY-MOURET, Roland COURTEAU, Michel DAGBERT, Yves DAUDIGNY, Marc DAUNIS, Marie-Pierre de la GONTRIE, Gilbert-Luc DEVINAZ, Jérôme DURAIN, Alain DURAN, Vincent ÉBLÉ, Rémi FÉRAUD, Corinne FÉRET, Jean Luc FICHET, Martine FILLEUL, Hervé GILLÉ, Annie GUILLEMOT, Jean-Michel HOULLEGATTE, Olivier JACQUIN, Victoire JASMIN, Patrice JOLY, Bernard JOMIER, Gisèle JOURDA, Éric KERROUCHE, Jean-Yves LECONTE, Claudine LEPAGE, Jean-Jacques LOZACH, Monique LUBIN, Victorin LUREL, Didier MARIE, Rachel MAZUIR, Michelle MEUNIER, Marie-Françoise PÉROL-DUMONT, Angèle PRÉVILLE, Claude RAYNAL, Sylvie ROBERT, Gilbert ROGER, Laurence ROSSIGNOL, Marie-Noëlle SCHOELLER, Jean Pierre SUEUR, Simon SUTOUR, Sophie TAILLÉ-POLIAN, Rachid TEMAL, Jean-Claude TISSOT, Nelly TOCQUEVILLE, Jean-Marc TODESCHINI, Jean-Louis TOURENNE, André VALLINI and Yannick VAUGRENARD, Senators.
On 29 July 2020, it then received a referral from Valérie RABAULT, Jean-Luc MÉLENCHON, André CHASSAIGNE, Joël AVIRAGNET, Marie-Noëlle BATTISTEL, Gisèle BIÉMOURET, Jean-Louis BRICOUT, Alain DAVID, Laurence DUMONT, Olivier FAURE, Guillaume GAROT, David HABIB, Christian HUTIN, Régis JUANICO, Marietta KARAMANLI, Jérôme LAMBERT, Serge LETCHIMY, Josette MANIN, Philippe NAILLET, George PAU-LANGEVIN, Christine PIRES BEAUNE, Dominique POTIER, Joaquim PUEYO, Claudia ROUAUX, Hervé SAULIGNAC, Sylvie TOLMONT, Cécile UNTERMAIER, Hélène VAINQUEUR CHRISTOPHE, Boris VALLAUD, Michèle VICTORY, Clémentine AUTAIN, Ugo BERNALICIS, Éric COQUEREL, Alexis CORBIÈRE, Caroline FIAT, Bastien LACHAUD, Michel LARIVE, Danièle OBONO, Mathilde PANOT, Loïc PRUD'HOMME, Adrien QUATENNENS, Jean-Hugues RATENON, Muriel RESSIGUIER, Sabine RUBIN, François RUFFIN, Bénédicte TAURINE, Manuéla KÉCLARD-MONDÉSIR, Moetai BROTHERSON, Gabriel SERVILLE, Alain BRUNEEL, Marie-George BUFFET, Pierre DHARRÉVILLE, Jean-Paul DUFRÈGNE, Elsa FAUCILLON, Sébastien JUMEL, Jean-Paul LECOQ, Stéphane PEU, Fabien ROUSSEL, Hubert WULFRANC, Jean Félix ACQUAVIVA, Michel CASTELLANI, Jean-Michel CLÉMENT, Paul-André COLOMBANI, Charles de COURSON, Frédérique DUMAS, Sandrine JOSSO, François-Michel LAMBERT, Paul MOLAC, Bertrand PANCHER and Sylvia PINEL, Members of Parliament.
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 Criminal Code;
- the Code of Criminal Procedure;
Having regard to the observations of the Government, registered on 3 August 2020;
And after having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDED THAT:
- The President of the National Assembly, the applicant Senators and Members of Parliament refer to the Constitutional Council the law instituting security measures against offenders having committed terrorist acts after said offenders have completed their sentence. The President of the National Assembly asks the Constitutional Council to rule on the conformity of Article 1 with the Constitution. The applicant Senators and Members of Parliament oppose this same Article 1.
- Concerning Article 1:
- Article 1 of the law referred for review creates, in Articles 706-25-15 et seq of the Code of Criminal Procedure, a “security measure” that is applicable to offenders having committed terrorist acts after said offenders have completed their sentence.
- This new measure is applicable, subject to three conditions: On the one hand, the person has to have been sentenced for having committed a terrorist offence mentioned in Articles 421-1 to 421-6 of the Criminal Code, excluding offences relating to provocation of terrorism and justification of terrorism. On the other hand, the person has to have received a custodial sentence of a duration of at least five (5) years, or, in the case of legal recidivism, of at least three (3) years. Lastly, at the end of their sentence, the person must present a particular danger characterised by a very high probability of recidivism and by a persistent attachment to an ideology or to ideas that encourage performing acts of terrorism.
- This measure is taken according to a reasoned opinion from the multidisciplinary commission on security measures, in charge of evaluating the dangerous nature of the person. It is ordered by the Paris regional jurisdiction for preventive detention or, in the case of minors, by the Paris juvenile courts.
- The security measure obliges the person to comply with one or several of the following obligations or prohibitions: respond to summons from the judge responsible for sentence enforcement or from the penitentiary integration and probation department; receive visits from this service and disclose information or provide documents to it that allow for verification of the person's means of earning a living and their fulfilment of their obligations; inform this service when they change their place of employment or residence, or of any travel that exceeds a duration of fifteen (15) days, and report on their return; obtain prior authorisation from the judge responsible for sentence enforcement when the change in place of employment or place of residence is such that it impedes the execution of the security measure; carry out a professional activity, or take part in professional training; establish their residence in a given locale; obtain prior authorisation from the judge responsible for sentence enforcement for any travel outside of France; not engage in the activity in the course of or in connection with which the offence was committed; present themselves periodically to the police or gendarmerie units, limited to three (3) times a week or, in the case of mobile electronic monitoring, once a week; not enter into contact with specifically designated persons or categories of persons; avoid being present in any specifically designated locale, category of locale, or zone; not possess or carry a weapon; respect the conditions of being under health, social, educational or psychological care, with the purpose of reintegrating society and acquiring the values of citizenship, if applicable within an adapted host institution in which the person is required to reside; be placed, with their own consent, under mobile electronic monitoring. Violation of these obligations or prohibitions is punishable by three (3) years of imprisonment and a fine of €45,000.
- The measure is ordered for a maximum duration of one (1) year. It can, under certain conditions, be renewed for the same duration, up to five (5) years or ten (10) years when the acts committed by the convicted offender are a criminal offence or a misdemeanour punishable by ten (10) years of imprisonment. When the convicted offender is a minor, these limits are reduced, respectively, to three (3) and five (5) years.
- The President of the National Assembly asks the Constitutional Council to review the conformity of these provisions with Article 9 of the Declaration of Human and Civic Rights of 1789 and with Article 66 of the Constitution. According to the applicant Senators, these same provisions would obstruct individual freedom through unnecessary rigour and would bring infringement on the freedom of movement and the right to personal privacy that would not be necessary, adapted or proportional to the legislator's pursued objective. The applicant Members of Parliament present the same objections and add that the principle that offences and penalties must be defined by law would be violated due to the subjectivity of the evaluation of the dangerous nature of a person. They also esteem that the combination of certain obligations provided for by the law give the disputed measure a custodial character that justifies the application of the principle of non-retroactivity of criminal law.
- According to Article 9 of the Declaration of Human and Civic Rights of 1789: “As every man is presumed innocent until he has been declared guilty, if it should be considered necessary to arrest him, any undue harshness that is not required to secure his person must be severely curbed by Law.”
- If the measure provided by Article 706-25-15 of the Code of Criminal Procedure is pronounced in the consideration of a criminal conviction and follows the completion of the sentence, it is not decided at the time of the conviction by the trial court, but at the completion of the sentence, by the regional jurisdiction of preventive detention. It is not based on the guilt of the person convicted, but on the specific dangerous nature determined by the regional jurisdiction on the date of its ruling. Its goal is to make recidivism difficult and prevent it. As such, this measure is neither a sentence nor a sanction that carries a punitive character.
- However, while lacking punitive character, it must comply with the principle of not impeding individual freedom with unnecessary rigour that comes from Articles 2, 4, and 9 of the Declaration of Human and Civic Rights of 1789. It is the legislator's responsibility, on the one hand, to ensure the reconciliation between preventing disturbances to public order, and on the other hand, the exercise of rights and freedoms guaranteed by the Constitution. Among these are the freedom of movement, an element of individual freedom, the right to personal privacy protected by Article 2 of the Declaration of Human and Civic Rights of 1789, and the right to have a normal family life, resulting from the tenth section of the Preamble to the Constitution of 27 October 1946. The infringement to the exercise of these rights and freedoms must be appropriate, necessary, and proportional to the pursued objectives of prevention.
- Terrorism seriously threatens public order through intimidation or terror. The objective of the fight against terrorism contributes to the objective of constitutional value of preventing disturbances to public order.
- The security measure provided for in Article 706-25-15 of the Code of Criminal Procedure aims to subject those who commit terrorist acts, as soon as they finish their sentence, to obligations and prohibitions in order to prevent recidivism. As established in the disputed provisions, the legislator sought to fight terrorism and to prevent acts that seriously disturb public order. The legislator pursued the objective of constitutional value of preventing disturbances to public order.
- On the one hand, this measure is in addition to existing measures aiming to prevent recidivism in the most serious offences, such as socio-judicial follow-up, judicial monitoring, preventive detention, security monitoring, and registration in the national automated judicial register of terrorist offenders. It also adds to individual measures of administrative control and monitoring aiming to prevent the commission of terrorist acts. On the other hand, it aims to respond to the specific risk of recidivism that is involved with a person that continues, once they have completed their sentence, to adhere to an ideology or ideas that foster the commission of terrorist acts.
- However, if the legislator should provide security measures that are based on a specific dangerous nature of the person who committed a terrorist act, with this nature being evaluated using objective elements, and seeking to prevent recidivism in such offences, it is on the condition that no measure that infringes less on constitutionally guaranteed rights and freedoms is sufficient to prevent the commission of these acts, and that the conditions of implementation of these measures and their duration are adapted and proportional to the pursued objective. Complying with this requirement is all the more imperative when the person has already completed their sentence.
- Firstly, the disputed measure contributes to imposing various obligations and prohibitions, if applicable in a cumulative fashion, which infringe on the freedom of movement, the right to personal privacy, and the right to have a normal family life. Such is the case with the person establishing their residence in a specific location, their obligation to report regularly to police or to gendarmerie units, up to three (3) times per week, the prohibition of carrying out certain activities, the prohibition of entering into contact with certain persons, or to be present in certain locales, categories of locales, or zones and the obligation of complying with the conditions of being placed under health, social, educational, or psychological care.
- Secondly, the duration of the security measure increases its degree of rigour. Yet, if the disputed measure can be ordered for a period of one (1) year, it can be renewed and last up to five (5) years, and even, in certain cases, ten (10) years. If the person was a minor when they committed the offence, these periods are respectively three (3) and five (5) years. The maximum durations apply according to the penalty incurred, whatever the amount of the penalty issued.
- Thirdly, on the one hand, if the disputed measure can only be applied to a person convicted of a terrorist offence, it could consequently be applied once the person received a custodial sentence greater than or equal to five (5) years, or three (3) years in the case of legal recidivism. On the other hand, the measure can be ordered including if this sentence was partly accompanied with a suspended sentence. As such, it follows from the first section of paragraph I of Article 706-25-15 and from the first section of Article 706-25-16 that the security measure can be ordered as soon as the mandatory portion of the sentence is at least equal to three months of imprisonment, and this even while, by ordering a suspended sentence, the ruling jurisdiction did not deem it useful to provide that the portion of the sentence with a suspended sentence would be carried out under condition of complying with court-imposed obligations or prohibitions (sursis avec mis à l'épreuve) or probation (sursis probatoire), measures that nevertheless help ensure that the person is monitored after their imprisonment.
- Fourthly, the measure can only be issued due to the dangerous nature of the person, the characterisation of whom can include a very high probability of recidivism. However, while the security measure can only be implemented after a sentence of imprisonment is completed, it is not required that the person was able to benefit from reintegration measures during their period of incarceration.
- Lastly, renewals of the security measure may be decided under the same conditions as for the initial decision, without the dangerous nature of the person needing to be corroborated by new or additional evidence.
- It follows from the foregoing that the disputed provisions violate the aforementioned constitutional requirements. Without having to examine the other objections, Article 1 of the referred law, and consequently its Articles 2 and 4, should therefore be declared unconstitutional.
- Concerning the other provisions:
- The Constitutional Council has not systematically raised any question of constitutionality and has therefore not ruled on the constitutionality of provisions other than those examined in this decision.
THE CONSTITUTIONAL COUNCIL DECIDES:
Article 1. - Articles 1, 2, and 4 of the law instituting security measures against offenders having committed terrorist acts after said offenders have completed their sentence are unconstitutional.
Article 2. - This decision shall be published in the Journal Officiel of the French Republic.
Ruled by the Constitutional Council in its 7 August 2020 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Jacques MÉZARD, François PILLET and Michel PINAULT.
Published on 7 August 2020.