Decision no. 2020-858/859 QPC of 2 October 2020

On 9 July 2020, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received two applications for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (Criminal Division, ruling nos 1433 and 1434 of 8 July 2020). These applications were made on behalf of Geoffrey F. and Ossama H. by SCP Spinosi et Sureau, Lawyer for the Conseil d'État and for the Cour de Cassation. They were registered by the general secretariat of the Constitutional Council under no 2020-858 QPC and 2020-859 QPC. They relate to the conformity with rights and freedoms that the Constitution guarantees in Articles 137-3, 144, and 144-1 of the Code of Criminal Procedure.

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 Convention for the Protection of Human Rights and Fundamental Freedoms
• the Code of Administrative Justice;
• the Code of Criminal Procedure;
• Act No 2000-516 of 15 June 2000 reinforcing the protection of the presumption of innocence and of the rights of victims;
• Act No 2009-1436 of 24 November 2009 concerning corrections;
• Act No 2019-222 of 23 March 2019 on planning for 2018-2022 and for judicial system reform;
• Conseil d'État Decision No 410677 of 28 July 2017;
• Ruling nos 1399 and 1400 from the Cour de Cassation of 8 July 2020 (Criminal Division, nos. 20-81.731 and 20-81.739);
• 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 of intervenors on behalf of the Conseil national des barreaux. and the Conférence des bâtonniers de France et d'outre-mer association by SCP Boré, Salve de Bruneton et Mégret, Lawyer for the Conseil d'État and for the Cour de Cassation, registered on 29 July 2020;
• the observations of intervenors on behalf of the Section française de l'observatoire international des prisons, Avocats pour la défense des droits des détenus, and the Ligue des droits de l'homme associations by SCP Spinosi et Sureau, registered on 30 July 2020;
• the observations on behalf of the applicants by SCP Spinosi et Sureau, registered on 31 July 2020;
• the observations of intervenors on behalf of the Syndicat des avocats de France by SCP Sevaux et Mathonnet, Lawyer for the Conseil d'État and for the Cour de Cassation, registered on the same date;
• the observations of the Prime Minister, registered on the same date;
• the second observations of intervenors on behalf of the Conseil national des barreaux. and the Conférence des bâtonniers de France et d'outre-mer association by SCP Boré, Salve de Bruneton et Mégret, registered on 4 August 2020;
• the second observations on behalf of the applicants by SCP Spinosi et Sureau, registered on 17 August 2020;
• the additional documents produced and appended to the case files;

After having heard Patrice Spinosi, Lawyer for the Conseil d'État and for the Cour de Cassation, for the first applicant and the Section française de l'observatoire international des prisons and Ligue des droits de l'homme associations, Maxime Gouache, Lawyer at the Nantes Bar, for the second applicant, Amélie Morineau, Lawyer at the Paris Bar, for the Avocats pour la défense des droits des détenus association, Louis Boré, Lawyer for the Conseil d'État and for the Cour de Cassation, for the Conseil national des barreaux and the Conférence des bâtonniers de France et d'outre-mer association, Paul Mathonnet, Lawyer for the Conseil d'État and for the Cour de Cassation, for the Syndicat des avocats de France, and Philippe Blanc, appointed by the Prime Minister, at the public hearing of 22 September 2020;

And after having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. The two applications for a priority preliminary ruling on the issue of constitutionality should be joined to issue a single ruling.

2. The application for a priority preliminary ruling on constitutionality must be considered as relating to the provisions applicable to the legal dispute at the moment in which the application was made. Consequently, a referral to the Constitutional Council is made for Article 137-3 of the Code of Criminal Procedure in its formulation resulting from the aforementioned law of 23 March 2019, for Article 144 of the same code, in its formulation resulting from the aforementioned law of 24 November 2009, and of Article 144-1 of the same code, in its formulation resulting from the aforementioned law of 15 June 2000.

3. Article 137-3 of the Code of Criminal Procedure, in this formulation, provides that:
   “The judge for liberties and detention gives their ruling by a reasoned ordinance. Where they order or prolong a pre-trial detention, or reject a request for release, the ordinance must specify the legal and factual matters that render judicial supervision or house arrest with electronic surveillance inadequate, as well as the grounds for detention, with reference only to the provisions of Articles 143-1 and 144.
   “In every case, the person under judicial examination is notified of the ordinance and receives a complete copy of it, for which they have to sign the case file.”

4. Article 144 of the Code of Criminal Procedure, in this formulation, provides that:
   “Pre-trial detention may be ordered or extended only if it is shown, in the light of the precise and detailed elements resulting from the proceedings, that it is the only means of achieving one or more of the following objectives and that these objectives cannot be achieved in the event of placement under judicial supervision or house arrest with electronic surveillance:
   “1º to preserve material evidence or clues that are necessary for the discovery of the truth;
   “2º to prevent pressure on witnesses or victims, as well as their families;
   “3º to prevent fraudulent collaboration between the person under investigation and their co-authors or accomplices;
   “4° to protect the person under investigation;
   “5° to guarantee maintaining the availability of the person under investigation to the courts;
   “6° to bring an end to the offence or prevent its re-occurrence;
   “7° to bring an end to exceptional and persistent disturbance of public order brought on by the seriousness of the offence, the circumstances surrounding the commission of the offence, or the significance of the damage it has caused. This disturbance cannot be the result of the media coverage of the case alone. However, this section is not applicable in relation to correctional cases.”

5. Article 144-1 of the Code of Criminal Procedure, in this formulation, provides that:
   “Pre-trial detention may not exceed a reasonable length of time in respect of the seriousness of the charges brought against the person under judicial examination and of the complexity of the investigations necessary for the discovery of the truth.
   “The investigating judge, or when a referral is made to the judge for liberties and detention, must order the immediate release of the person placed in pre-trial detention, pursuant to the terms provided for by Article 147, as soon as the conditions provided under Article 144 and under the present article are no longer fulfilled.”

6. Relying on the interpretation of these provisions that the Cour de Cassation would have made in its referral decisions, the applicants, joined by the intervenors, consider that, by failing to require the judicial authority to put an end to pre-trial detention conditions contrary to the dignity of the individual, the legislator would have violated the scope of their jurisdiction to an extent affecting the principle of safeguarding the dignity of the individual, the principle of prohibition of inhuman and degrading treatment, individual freedom, the right to effective legal protection and the right to personal privacy. By way of the referred provisions, the applicants also denounce the direct violation of the same constitutional requirements for the same reasons.

7. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the second section of Article 144-1 of the Code of Criminal Procedure.

• Concerning the provisions referred to the Constitutional Council for review:

8. Article 61-1 of the Constitution recognises the right of any litigant to have examined, at their request, the ground that a legislative provision violates the rights and freedoms guaranteed by the Constitution. By imposing, in the fifth section of Article 23-2 of the aforementioned ordinance of 7 November 1958, and in the second section of its Article 23-5, the priority consideration of the grounds of constitutionality before the consideration of the grounds derived from the lack of conformity of a legislative provision with France's international commitments, the institutional legislator sought to guarantee compliance with the Constitution and to recall its place at the top of the domestic legal order.

9. It follows from this that the court called upon to rule on the serious nature of an application for a priority preliminary ruling on the issue of constitutionality cannot rely on the interpretation of the disputed legislative provision imposed by its respect of France's international commitments in order to refute this serious nature, regardless of whether this interpretation is formed simultaneously with the decision that it issues or has previously issued. When the Constitutional Council receives a referral for an application for a priority preliminary ruling on the issue of constitutionality, it is not within its mandate to take this interpretation into account to decide if the disputed provisions conform to the rights and freedoms that the Constitution guarantees.

10. However, these same requirements are not enforceable against an objection, raised in the context of an application for a priority preliminary ruling on the issue of constitutionality, to the effective scope that such an interpretation gives to a legislative provision, if the alleged unconstitutionality does indeed come from this interpretation.

11. Consequently, in this case, contrary to what the Prime Minister contends, the Constitutional Council must rule on the disputed provisions independently of the interpretation made by the Cour de Cassation in its aforementioned rulings, nos 1399 and 1400 of 8 July 2020, in order to make them compatible with the requirements arising from the European Convention for the Protection of Human Rights and Fundamental Freedoms.

• Concerning the conformity of the disputed provisions with the rights and freedoms guaranteed by the Constitution:

12. The Preamble of the Constitution of 1946 reaffirmed and declared the constitutional rights, freedoms, and principles, emphasising at the outset that: “In the morrow of the victory achieved by the free peoples over the regimes that had sought to enslave and degrade humanity, the people of France proclaim anew that each human being, without distinction of race, religion or creed, possesses sacred and inalienable rights.” It follows that 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.

13. As stated in 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.” According to its Article 16: “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.” It follows from this provision that the right of the persons concerned to access effective legal recourse before a court must not be substantially impaired.

14. It follows that it is the responsibility of the judicial authorities as well as the administrative authorities to ensure that the deprivation of freedom of persons held in pre-trial detention is, in all circumstances, carried out with respect for the dignity of the individual. Moreover, it is the responsibility of the competent authorities and courts to prevent and punish acts that violate the dignity of persons in pre-trial detention and to order compensation for damages. Lastly, it is the responsibility of the legislator to guarantee that persons placed in pre-trial detention can refer to the court when the conditions of detention are contrary to those required for the dignity of the individual, in order to bring such conditions to an end.

15. Firstly, if a person placed in pre-trial detention and exposed to conditions of detention contrary to the dignity of the individual may refer the matter to the administrative court in summary proceedings, on the basis of Articles L. 521-2 or L. 521-3 of the Code of Administrative Justice, the measures that this court is likely to pronounce in this context, which may depend on the administration's ability to implement them usefully and at very short notice, do not guarantee, in all circumstances, that said detention will be ended.

16. Secondly, on the one hand, if, by virtue of Article 148 of the Code of Criminal Procedure, a person placed in pre-trial detention may at any time file a request for release, the court is only required to act on it in the cases provided for in the second section of Article 144-1 of the same code. Yet, this is the case when pre-trial detention exceeds a reasonable length of time, in view of the seriousness of the alleged facts and the complexity of the investigations necessary to discover the truth, and when detention is no longer justified by one of the causes listed in Article 144 of the same code, all of which fall within the requirements of safeguarding public order or searching for the perpetrators of offences. On the other hand, while Article 147-1 of the same code authorises the court to order the release of a person placed in pre-trial detention, it is only in the situation where medical expertise establishes that this person is suffering from a life-threatening disease or that the person's physical or mental state of health is incompatible with continued detention. Consequently, there is no recourse before the judicial authority to obtain an end to the violation of the person's dignity resulting from their conditions of pre-trial detention.

17. Consequently, and independently of the liability actions that may be brought on account of undignified conditions of detention, the disputed provisions violate the aforementioned constitutional requirements. Without having to rule on the other objections, they must therefore be ruled unconstitutional.

Concerning the effects of the declaration of unconstitutionality:

18. According to the second section of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of Article 61-1 shall be repealed as of the publication of the said 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 must benefit the person who brought the application for a priority preliminary ruling on the issue of constitutionality, and the provision declared unconstitutional may not be applied in the proceedings under way on the date of the publication of the decision of the Constitutional Council. However, the provisions of Article 62 of the Constitution maintain the right for the latter both to set the date of the repeal and to postpone its effects, and allowing for challenging the effects that the provision produced before the declaration was made. These same provisions also maintain the Constitutional Council's power to oppose engaging the government's responsibility given the provisions declared unconstitutional, or to determine specific conditions or limits.

19. In this case, the immediate repeal of the provisions declared as not conforming to the Constitution, in that it would impede the release of persons held in pre-trial detention when such detention is no longer justified or exceeds a reasonable period of time, would have clearly excessive consequences. As a result, the date of repeal should be postponed to 1 March 2021.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - The second section of Article 144-1 of the Code of Criminal Procedure, in its formulation resulting from Act No 2000-516 of 15 June 2000 reinforcing the protection of the presumption of innocence and of the rights of victims, is unconstitutional.

Article 2. - The declaration of unconstitutionality of Article 1 becomes effective according to the conditions of paragraph 19 of this decision.

Article 3. - 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 1 October 2020 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, Jacques MÉZARD, François PILLET and Michel PINAULT.

Published on 2 October 2020.