Decision No. 2004-492 Dc's March 2, 2004

Original Language Title: Décision n° 2004-492 DC du 2 mars 2004

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CONFORMITY , ARTICLE 61 , CONSTITUTIONAL COUNCIL , DC , PERBEN II LAW , JUSTICE , CRIMINALITE , TEMPORARY DETENTION , IMPRISONMENT , PUNISHMENT , SEPARATION OF POWERS , STATEMENT , PARQUET , GUARD A VIEW , SEARCH , COURT FILE , MINOR , OFFENSE , WORK ORDER , LAWYER , DELAI LAW NO. 2004-204


JORF No. 59 of 10 March 2004 4637 page
Text #4



Decision No. 2004-492 DC of March 2, 2004

NOR: CSCL0407180S ELI: Not available


ACT FOR ADJUSTMENT OF JUSTICE
TO EVOLUTION OF CRIMINALITY


The Constitutional Council has been seized, under the conditions laid down in the second paragraph of Article 61 of the Constitution, of the Law on the adaptation of justice to the evolutions of crime, 11 February 2004, by Claude Estier, Michèle André, MM. Bernard Angels, Bertrand Auban, Robert Badinter, Jean-Pierre Bel, Jacques Bellanger, Mme Maryse Bergé-Lavigne, M. Jean Besson, Mme Marie-Christine Blandin, M. Didier Boulaud, Mme Yolande Boyer, Claire-Lise Campion, Mr. Bernard Cazeau, Mme Monique Cerisier-ben Guiga, MM. Gilbert Chabroux, Gérard Collomb, Raymond Courrière, Roland Courteau, Yves Dauge, Marcel Debarge, Jean-Pierre Demerliat, Claude Domeizel, Michel Dreyfus-Schmidt, Mme Josette Durrieu, MM. Bernard Dusleap, Bernard Frimat, Charles Gautier, Jean-Pierre Godefroy, Jean-Noël Guérini, Claude Haut, Mme Odette Herviaux, MM. Yves Krattinger, Serge Lagauche, André Lejeune, Claude Lise, Philippe Madrelle, Jacques Mahéas, Jean-Yves Mano, François Marc, Jean-Pierre Masseret, Marc Massion, Pierre Mauroy, Louis Mermaz, Gérard Miquel, Michel Moreigne, Jean-Marc Pastor, Guy Penne, Daniel Percheron, Jean-Claude Peyronnet, Jean-François Picheral, Bernard Piras, Mme Danièle Pourtaud, Gisèle Printz, MM. Daniel Raoul, Paul Raoult, Daniel Reiner, Gérard Roujas, André Rouvière, Mme Michèle San Vicente, MM. Claude Saunier, Michel Sergeant, René-Pierre Signed, Jean-Pierre Sueur, Simon Sutour, Michel Teston, Jean-Marc Todeschini, Pierre-Yvon Trémel, André Vantomme, André Véhinzet, Marcel Vidal and Henri Weber, Senators,
and, on the same day, by Mr. Jean-Marc Ayrault, Ms Patricia Adam, Mr Damien Alary, Ms Sylvie Andrieux-Bacquet, MM. Jean-Marie Aubron, Jean-Paul Bacquet, Jean-Pierre Balligand, Gérard Bapt, Claude Bartolone, Jacques Bascou, Christian Bataille, Jean-Claude Bateux, Jean-Claude Beauchaud, Eric Besson, Jean-Louis Bianco, Jean-Pierre Blazy, Serge Blisko, Patrick Bloche, Jean-Claude Bois, Daniel Botry, Maxime Bono, Augustin Bonrepaux, Jean-Michel Boucheron, Pierre Bourguignon, Danielle Bousquet, MM. François Brottes, Thierry Carcenac, Christophe Caresche, Martine Carillon-Couvreur, MM. Laurent Cathala, Jean-Paul Chanteguet, Alain Claeys, Gilles Cocquempot, Pierre Cohen, Claude Darciaux, Michel Dasseux, Martine David, MM. Marcel Dehoux, Bernard Derosier, Marc Dolez, François Dosé, René Dosière, Julien Dray, Tony Dreyfus, Pierre Ducout, Jean-Pierre Dufau, Jean-Paul Dupré, Yves Durand, Henri Emmanuelli, Claude Évin, Laurent Fabius, Jacques Floch, Pierre Forgues, Michel Françaix, Jean Gaubert, Nathalie Gautier, Catherine Generisson, MM. Jean Glavany, Gaëtan Gorce, Alain Gouriou, Elisabeth Guigou, Paulette Guinchard-Kunstler, Mr David Habib, Ms Danièle Hoffman-Rispal, MM. François Hollande, Jean-Louis Idiart, Françoise Imbert, MM. Serge Janquin, Armand Jung, Jean-Pierre Kucheida, Ms Conchita Lacuey, MM. Jérôme Lambert, François Lamy, Jack Lang, Jean Launay, Jean-Yves Le Bouillonnec, Gilbert Le Bris, Jean-Yves Le Déaut, Jean Le Garrec, Jean-Marie Le Guen, Bruno Le Roux, Marylise Lebranchu, MM. Michel Lefait, Patrick Lemasle, Guy Lengagne, Ms Annick Lepetit, MM. Jean-Claude Leroy, Michel Liebgott, Martine Lignières-Cassou, MM. François Loncle, Bernard Madrelle, Christophe Masse, Didier Mathus, Kléber Mesquida, Jean Michel, Didier Migaud, Mme Hélène Mignon, MM. Arnaud Montebourg, Henri Nayrou, Alain Neri, Mme Marie-Renée Oget, MM. Christian Paul, Germinal Peiro, Marie-Françoise Pérol-Dumont, Geneviève Perrin-Gaillard, MM. Jean-Jack Queyranne, Paul Quilès, Alain Rodet, Bernard Roman, René Rouquet, Mme Ségolène Royal, Odile Saugues, MM. Henri Sicre, Dominique Strauss-Kahn, Pascal Terrasse, Philippe Tourtelier, Daniel Vaillant, André Vallini, Manuel Valls, Michel Vergnier, Alain Vidalies, Jean-Claude Viollet, Philippe Vuilque, Jean-Pierre Defontaine, Paul Giacobbi, Joël Giraud, Simon Renucci, Chantal Robin-Rodrigo, Roger-Gérard Schwartzenberg, Mrs Christiane Taubira, MM. François Asensi, Gilbert Biessy, Alain Bocquet, Patrick Braouezec, Jacques Brunhes, Mme Marie-George Buffet, MM. André Chassaigne, Jacques Desallangre, Frédéric Dutoit, Mme Jacqueline Fraysse, MM. André Gerin, Pierre Goldberg, Maxime Gremz, Georges Hage, Ms Muguette Jacquaint, Janine Jambu, MM. Jean-Claude Lefort, François Liberti, Daniel Paul, Jean-Claude Sandrier, Michel Vaxès, Ms Martine Billard, MM. Yves Cochet and Noël Mamère, Members of Parliament;
The Constitutional Council,
In view of the Constitution;
Given Order No. 58-1067 of 7 November 1958 amending the Organic Law on the Constitutional Council;
In view of the United Nations Convention Against transnational organized crime, adopted in New York on 15 November 2000, signed by France in Palermo on 12 December 2000 and published by Decree No. 2003-875 of 8 September 2003;
In view of the Penal Code;
Due to the code of procedure Criminal
No. 45-174 of February 2, 1945, as amended relative to childhood delinquency;
In light of Order No. 45-2658 of 2 November 1945, as amended on the conditions of entry and residence of aliens in France;
N ° 58-1270 of 22 December 1958 amending the Organic Law on the Status of the Judiciary;
Due to the amended Act No. 78-17 of 6 January 1978 on computers, files and freedoms;
In view of the Government's observations, Registered on February 19, 2004;
In response to the reply submissions made by the authors of the first reference, recorded on February 27, 2004;
In response to the reply submissions made by the authors of the second Referral, recorded on 27 February 2004;
Due to the Government's new observations, recorded on 28 February 2004;
The rapporteur has been heard;
1. Considering that the authors of the two references defected to the Constitutional Council the law on the adaptation of justice to the evolutions of crime; that they contest in particular the conformity with the Constitution, in whole or in part, of its articles 1, 14, 48, 63 and 137;
On items 1 and 14:
2. Considering that Article 1 of the Act is referred to in Book IV of the Code of Criminal Procedure a Title XXV entitled: The procedure applicable to organised crime and delinquency " ; that, in a new Article 706-73, it shall List of crimes and offences falling within this category; that, for the identification of their authors, it provides for special rules relevant to the investigation, prosecution, investigation and judgment; that Article 14 supplements these provisions Police custody and searches;
With respect to applicable constitutional standards:
3. Considering, first, that Article 6 of the Declaration of Human Rights and the Citizen of 1789 proclaims: " The law is the expression of the general will ... It must be the same for all, either that it protects, or that it punishes ... " ; Article 7 states: " No man shall be charged, arrested or detained except in cases determined by law, and in the manner prescribed by law ... " ; that according to Article 8 thereof: The law must establish only strict and obviously necessary penalties ... " ; Article 9 states: " Since every man is presumed innocent until he has been found guilty, if it is deemed necessary to arrest him, any rigor that would not be necessary to ensure his person must be severely repressed By law " ; and in accordance with Article 16 thereof: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ; and finally, under Article 66 of the Constitution: No Cannot be arbitrarily detained. -The judicial authority, the guardian of individual liberty, ensures that this principle is respected in accordance with the conditions laid down by law " ;
4. Considering, second, that it is for the legislature to ensure conciliation between, on the one hand, the prevention of infringements of public order and the search for offenders, both of which are necessary for the protection of rights and Principles of constitutional value and, on the other hand, the exercise of constitutionally guaranteed freedoms; that the number of such freedoms is the freedom to go and come, the inviolability of the private domicile, the secrecy of correspondence and the Respect for privacy, protected by Articles 2 and 4 of the 1789 Declaration, as well as individual liberty, that article 66 of the Constitution places under the supervision of the judicial authority;
5. Taking into account, finally, that the legislature derives article 34 of the Constitution, as well as the principle of the legality of offences and penalties, the obligation to establish the scope of the criminal law itself and to define the crimes and offences in question. Sufficiently clear and precise; that this requirement is necessary not only to exclude arbitrariness in the delivery of sentences, but also to avoid unnecessary rigour in the search for offenders;
6. Considering that it is the result of all these provisions that, if the legislator can provide for special investigative measures in order to establish specific crimes and offences of a particular gravity and complexity, to gather the evidence and To seek the authors thereof, it is subject to these measures being conducted in accordance with the prerogatives of the judicial authority, the guardian of individual liberty, and the restrictions which they bring to the constitutional rights Guarantees are necessary for the demonstration of the truth, proportionate to the gravity and complexity of the offences committed and do not introduce unjustified discrimination; that it is for the judicial authority to ensure respect for the These principles, recalled in the preliminary article of the Code of Criminal Procedure, in the application of the rules of special criminal procedure instituted by the law;
With regard to the definition of offences relating to crime and crime Organized crime:
7. Considering that the new Article 706-73 of the Code of Criminal Procedure lays down a list of offences relating to organised crime and delinquency, to which the rules of procedure laid down by the new Title XXV of Book IV apply The code of criminal procedure;
8. Considering that the list of such offences includes:
-1 ° The crime of murder committed in an organised band, punishable by life imprisonment under Article 221-4 of the Criminal Code;
-2 ° The crime of torture and Acts of barbarism committed in an organised band when it is committed in the usual manner on a minor of fifteen years or on a person whose particular vulnerability, due to his age, illness, infirmity, physical disability or Or a state of pregnancy, is apparent or known to the author, a crime punishable by up to thirty years' imprisonment under article 222-4 of the Criminal Code;
-3 ° The crimes and offences of trafficking in narcotic drugs Articles 222-34 to 222-40 of the Penal Code, the penalties incurred ranging from five years' imprisonment to life imprisonment;
-4 ° Crimes and offences of kidnapping and sequestration committed in organised crime, punishable by 30 Years of criminal or life imprisonment under the new section 224-5-2 of the Criminal Code;
-5 ° aggravated crimes and offences of trafficking in human beings sanctioned by articles 225-4-2 to 225-4-7 of the Code The penalties incurred ranging from ten years' imprisonment to life imprisonment;
-6 ° aggravated offences of procuring under Articles 225-7 to 225-12 of the Criminal Code, the penalties incurred for ten years Imprisonment for life imprisonment;
-7 ° The crime of theft committed in an organised gang which, under Article 311-9 of the Criminal Code, is punishable by 15 to 30 years' imprisonment;
-8 ° Aggravated crimes Under Articles 312-6 and 312-7 of the Penal Code, where violence has resulted in mutilation, infirmity, death, torture or acts of barbarism, or when committed with the use or threat of a weapon, the penalties Offences ranging from 20 years of criminal imprisonment to life imprisonment;
-9 ° The crime of destruction, degradation and deterioration of a property committed in an organized band, where the property is caused by a substance Explosive, fire or other means of nature to create a danger to persons, the penalty ranging from twenty to thirty years' imprisonment under the amended Article 322-8 of the Criminal Code;
-10 ° Crimes in relation to false Money provided for in Articles 442-1 and 442-2 amended from the Penal Code, punishable by ten years'imprisonment to 30 years' imprisonment;
-11 ° Crimes and offences constituting acts of terrorism provided for in Articles 421-1 to 421-5 Changes to the Penal Code, the penalty up to life imprisonment;
-12 ° Organized crime offences under special laws, punishable by ten years' imprisonment under the XVI to XXI years. Section 6 of the law referred to;
-13 ° The offences of aid for the unauthorised entry, movement and residence of a foreigner in France committed in an organised band provided for by the fourth paragraph of the I of Article 21 of the Order of 2 November 1945 Punished by Article 21 bis of the same order of ten years' imprisonment;
-14 ° Money laundering offences provided for in Articles 324-1 and 324-2 of the Penal Code, or of recel provided for in Articles 321-1 and 321-2 of the Penal Code, of the Proceeds, from income, from the offences mentioned above, punishable by five or ten years' imprisonment;
-15 ° Criminal association offences for the purpose of preparing one of the offences mentioned Above, punished by article 450-1 of the penal code of five or ten years imprisonment;
9. Considering that under Article 132-71 of the Criminal Code: Constitutes an organized band within the meaning of the Act any grouping or arrangement established for the purpose of the preparation, characterized by one or more material facts, Multiple offences " ;
10. Whereas under the first paragraph of Article 450-1 of the Code: A criminal association is an association formed or an arrangement established with a view to the preparation, characterized by one or more material facts, one or more Crimes or offences punishable by at least five years' imprisonment ' ;
11. Considering that the authors of the references submit that the list of offences retained by Article 706-73 new of the Code of Criminal Procedure does not recognise Article 8 of the 1789 Declaration, the principles of necessity and legality of the offences, and The right to appeal as a result of Article 16 of the Declaration; that, in their view, the concept of " Organized band " Would be unclear and unclear; and If drug trafficking, pimping and trafficking offences Aggravated, of trafficking in human beings, of terrorism are undeniably organised crime in the criminological sense of the term, certainly not the destruction, degradation and deterioration of a property committed in the band Organised, criminalisation liable to be held for urban violence or excessive trade union action, theft, extortion of funds, aid for entry and residence of an alien in an irregular situation " ;
12. Taking the view that, by adopting Article 706-73 new of the Code of Criminal Procedure, the legislator has drawn up a restrictive list of the crimes and offences calling, in his view, with regard to their seriousness as to the difficulties that the pursuit of their Which act in an organised framework, rules of special criminal procedure; that these rules are relevant to the investigation, prosecution, investigation, trial of these crimes and offences;
As to the clarity and precision of the Offences selected:
13. Considering that Articles 265 and 266 of the Penal Code of 1810 already qualified as a crime against public peace " Any association of criminals with persons or property " By defining this crime " By the sole fact of organizing Bands or correspondence between them and their chiefs or commanders, or conventions for the reporting or distribution or sharing of the proceeds of harm " ; that the notion of organized band has been taken over as an aggravating circumstance By Article 385 of the former Criminal Code, which was derived from Article 21 of Act No. 81-82 of 2 February 1981 and according to which constituted an organised band " Any group of criminals established for the purpose of committing one or more flights aggravated by one or more Several of the circumstances referred to in Article 382 (paragraph 1) and characterised by preparation and possession of the material resources relevant to the action " ; that Acts No. 83-466 of 10 June 1983 and No. 94-89 of 1 February 1994, as well as New Penal Code of 1994, extended the aggravating circumstance of a band commission to other offences; that the concept of organized gang was retained in the context of the police custody under Article 3 of Law No. 93-1013 of 24 August 1993, which, by supplementing article 63-4 of the Code of Criminal Procedure, extended from 20 hours to 36 hours the time limit at which a person kept in sight may request to speak with a lawyer, when the investigation is for an offence Committed in organised band; that Article 59 of Act No. 2000-516 of 15 June 2000 has completed Article 145-2 of the Code of Criminal Procedure for setting up to four years the maximum period of pre-trial detention for organised crime; that The case-law established by the criminal courts has provided additional useful information to characterise the aggravating circumstance of organised crime, which presupposes the premeditation of offences and a structured organisation of Finally, the aforementioned UN Convention against Transnational Organised Crime, ratified by France, adopted a neighbouring definition by inviting the acceding states to take the appropriate measures to fight Effectively against all " A structured group of three or more persons who have been in existence for some time and acting in concert to commit one or more serious offences or offences established in accordance with this Convention, To derive, directly or indirectly, a financial benefit or other material benefit " ;
14. Considering, in those circumstances, that the infringements which the legislator has adopted are drafted in sufficiently clear and precise terms to respect the principle of legality; that, in particular, is not obscure or ambiguous the expression ' Tape ", which is defined by Article 132-71 of the Penal Code as" Any grouping or arrangement established for the purpose of the preparation, characterised by one or more material facts, one or more offences " And which stands out The concept of meeting or coaction;
As to the severity and complexity of the offences selected:
15. Considering, in general, that the difficulty of apprehend the perpetrators of the offences referred to in Article 706-73 new of the Code of Criminal Procedure lies in the existence of a group or network, including identification, knowledge and Dismantling poses complex problems;
16. Considering that the offences retained by Article 706-73 are, for the most part, liable to constitute a serious breach of the security, dignity or life of the persons; that this is the case for extortion, referred to in 8 ° of that article, of which The violence, the threat of violence or coercion are constitutive elements under Article 312-1 of the Criminal Code; that the same is true of the destruction, degradation or deterioration mentioned in 9 ° of this article, which, according to the Article 322-6 of the Penal Code shall be caused by an explosive substance, fire or other means of such a nature as to create a danger to persons;
17. Considering that, among the offences that do not necessarily affect persons, is the theft when it is described as a crime; that, however, if the flight committed in an organized band finds its place in that list, it cannot be so If it has sufficient elements of gravity to justify the derogating measures in the criminal procedure provided for in Article 1 of the law referred to; that, if not, these special procedures would impose a rigor not Necessary within the meaning of Article 9 of the 1789 Declaration; that it will be for the judicial authority to assess the existence of such elements of gravity in the application of the law referred to;
18. Taking the view that it is clear from the very wording of Article 706-73 new of the Code of Criminal Procedure that the offence of aiding the illegal stay of a foreigner in France in an organised band cannot concern humanitarian aid agencies That, in addition, applies to the characterization of such an offence the principle set out in section 121-3 of the same code that there is no crime without intent to commit it;
19. Considering that, subject to the reservations set out in the two preceding recitals, the infringements adopted by Article 706-73 are sufficiently serious and complex for the legislature to have established, as far as it is concerned, special rules of Criminal procedure; that it follows that the grievances referred to in section 706-73 must be dismissed; and
20. Considering that, however, it is necessary to check whether the rules relating to each of the procedures applicable to the search for the authors of these offences comply with the Constitution;
With regard to custody:
21. Considering that the amended law amends the regime applicable to police custody; that, for that purpose, Article 1 inserts an Article 706-88 into the Code of Criminal Procedure; that the I of Article 14 and Article 85 amend Article 63-4 of the Code; That the VI of Article 14 supplements Article 4 of the Ordinance of 2 February 1945;
22. Considering that the applicants dispute the extension of the custody of the authors of certain offences, the amendments to the time limits for the intervention of the lawyer and the application of this extension to certain minors over sixteen Years;
With regard to the extension of custody:
23. Considering that Article 706-88 new of the Code of Criminal Procedure provides that, if the necessities of an investigation relating to one of the offences covered by Article 706-73 so require, the custody of a person may, on an exceptional basis, The subject of two additional extensions of twenty-four hours each decided by the judge of liberty and detention or by the investigating judge; that, in this case, these extensions, which are in addition to the duration of the common law As defined in Article 63 of the same Code, bring the maximum period of custody, as already provided for in Articles 706-23 and 706-29 in the field of terrorism and drug trafficking, to ninety-six hours; that, if the foreseeable duration of the Investigations still to be carried out, the Justice of Freedoms and Detention or the investigating judge may decide that the custody will be the subject of a single additional forty-eight hour extension;
24. Considering that, according to the applicants, " Such maximum duration is manifestly excessive and disproportionate within the meaning of Article 8 of the 1789 Declaration, thus violating individual freedom as guaranteed by Article 2 of the Declaration Of 1789 " ; that they consider the scope of its scope to be excessive and denounce the character " Particularly imprecise " The conditions required for the renewal of custody;
25. Taking the view that it follows from Articles 706-73 and 706-88 new of the Code of Criminal Procedure that the scope of the provisions criticised relates to investigations involving specific offences calling for, due to their seriousness and Their complexity, specific investigations; Article 706-88 subordinates the extension of custody to a written and reasoned decision of a judge of the seat, to which the person concerned must be presented; and That these safeguards are in addition to the general rules of the Code of Criminal Procedure that place custody under the control of the judicial authority;
26. Considering that the provisions criticised are formulated in sufficiently clear and precise terms to avoid arbitrariness; in particular, the foreseeable duration of the investigations still to be carried out, which may justify the custody of a No one shall be subject to a single additional forty-eight hour extension, shall be assessed, in each case, by the judge of liberty and detention or the investigating judge; that such assessment shall be the subject of a written decision and Motivated;
27. Considering, in these circumstances, that the provisions of Article 706-88 new of the Code of Criminal Procedure do not constitute an excessive infringement of individual liberty;
As regards the period of intervention of the lawyer:
28. Considering that under the terms of I of Article 14 of the law referred to, which amends Article 63-4 of the Code of Criminal Procedure: If the person is kept in custody for an offence mentioned in the 4 °, 6 °, 7 °, 8 ° and 15 ° of Article 706-73, the maintenance with a Lawyer may intervene only after a period of forty-eight hours. If it is kept in sight for an offence referred to in the 3 ° and 11 ° of the same article, the interview with a lawyer can only take place after a period of seventy-two hours. The Public Prosecutor shall be informed of the fact that the investigators shall be qualified as soon as he is informed by the investigators of the placement in custody " ;
29. Considering that, according to the applicants, the extension of police custody in the context of investigations into offences relating to organised crime and organised crime is all the more detrimental to individual freedom and to rights The defence that the first interview with a lawyer will be carried forward to the forty-eighth hour;
30. Considering that it is open to the legislature, competent to lay down the rules of criminal procedure under Article 34 of the Constitution, to provide for different rules of procedure according to the facts, situations and persons to whom They apply, but on the condition that these differences do not result in unjustified discrimination and that equal guarantees are provided to litigants, in particular as regards respect for the principle of the rights of the defence;
31. Considering that a right of defence is the right of the person kept to speak with a lawyer during the course of the defence;
32. Considering that the I of Article 14 of the Act referred to at the forty-eighth hour the first intervention of the lawyer for some of the offences listed in Article 706-73; that, for most of those offences, that period was already Thirty-six hours pursuant to Article 63 (4) of the Code of Criminal Procedure; that the new period, justified by the gravity and complexity of the infringements concerned, if it alters the procedures for the exercise of the rights of the defence, does not call into question the Principle;
33. Considering that by indicating that the prosecutor of the Republic is notified of the characterization of the facts justifying the postponement of the first intervention of the lawyer in the placement of the person in custody, the legislator has necessarily heard that That judge, in the exercise of his powers under Article 41 and the general principles of the Code of Criminal Procedure, immediately controls that qualification; that the assessment initially carried out by the judicial police officer in respect of the Concerns the possible postponement of the intervention of the lawyer in the course of custody is thus subject to the supervision of the judicial authority and cannot determine the subsequent conduct of the proceedings;
34. Considering that, subject to the reservations set out in the previous recital, the provisions criticised do not constitute an unjustified violation of individual freedom, the rights of the defence, or the prerogatives of the judicial authority;
Regime applicable to minors:
35. Considering that the last two paragraphs of Article 14 of the Law referred to in Article 14 of the Act supplement Article 4 of the Order of 2 February 1945 referred to above; that these new provisions extend the extension of custody to view, in the context of investigations Relating to facts falling within the scope of Article 706-73 new of the Code of Criminal Procedure, to minors over sixteen years of age " Where there are one or more plausible reasons for suspecting that one or more persons Have participated, as authors or accomplices, in the commission of the offence ;
36. Considering that, according to the applicants, the new provisions infringe the principle of equality before the law " To the extent that it can be so placed in police custody that a certain category of minors, perhaps having a connection with A major offender " ; that they also consider that " The placement of a minor over sixteen years of age in police custody for four days constitutes a lack of knowledge of the fundamental principle recognized by the laws of the Republic of Criminal Law Special and protective of minors " ;
37. Considering that the reduction in the criminal responsibility of minors as a function of age, such as the need to seek the educational and moral rehabilitation of child offenders by means of measures adapted to their age and personality, A specialized court or according to appropriate procedures have been consistently recognized by the laws of the Republic since the beginning of the twentieth century; that these principles include their expression in the Act of 12 April 1906 on the Criminal majority of minors, the Children's Courts Act of 22 July 1912 and the Ordinance of 2 February 1945 on Federally Sentenced Children; that, however, the Republican legislation prior to the entry into force of the 1946 Constitution does not Does not rule that binding measures or sanctions should always be avoided in favour of purely educational measures; in particular, the original provisions of the ordinance of 2 February 1945 did not rule out The criminal responsibility of minors and did not exclude, in the event of necessity, that they were pronounced in respect of measures such as placement, supervision, restraint or, for minors over thirteen years of age, detention; The scope of the fundamental principle recognized by the laws of the Republic in the field of juvenile justice;
38. Considering, first, that the provisions of Article 706-88 new of the Code of Criminal Procedure concern investigations into offences requiring, due to their seriousness and complexity, specific investigations; That the legislator has subordinated their application to minors under the double condition that they are more than sixteen years of age and that there are one or more plausible reasons for suspecting that adults are involved in the facts commission; that it has To ensure the proper conduct of these investigations and to protect minors from any risk of reprisals which may emanate from the adults involved; that the difference in treatment thus instituted does not therefore result in discrimination Undue;
39. Considering, in the second place, that the protective provisions of the order of 2 February 1945 were not called into question; that Article 4 excludes from the custody of minors under the age of thirteen and orders that of other minors Special conditions; that the minor in police custody is subject to a medical examination, has the right to ask to speak with a lawyer at the first hour of his or her custody and cannot see it extended without prior presentation The prosecutor of the Republic or the investigating judge; that, on the other hand, his interrogations are the subject of an audiovisual recording; that, having regard to all these conditions, the measure criticised, which concerns only minors More than sixteen years involved in serious matters, does not affect the constitutional requirements of juvenile justice;
40. Considering that it follows from the above that the criticised provisions relating to minors are not contrary to any constitutional requirement;
As regards searches:
41. Considering that Articles 706-89 to 706-94 inserted in the Code of Criminal Procedure by Article 1 of the Act referred to, as well as the provisions of Article 14 of Article 14, amend the system of searches, home visits and seizures of Exhibits;
42. Considering that, according to the applicants, the new search possibilities cover " A very wide field " And relate to individual freedom and the inviolability of the domicile of the infringement " Manifestly disproportionate " ;
As for Regime applicable to explosion investigation:
43. Considering that the new section 706-89 of the Code of Criminal Procedure permits, where the requirements of the investigation of the investigation of an offence relating to an offence referred to in Article 706-73 so require, that searches, home visits and Seizure of exhibits outside the hours specified in section 59 of the same code;
44. Considering that, according to the applicants, this new exception to the rule prohibiting night searches, which is in addition to those already provided for by the law, carries an excessive attack on individual freedom; that this infringement would be all the more The amendments to section 53 of the Code of Criminal Procedure by the II of Section 77 of the Act allow for an extension of eight to sixteen days for the duration of the gross investigations;
45. Considering, first, that the II of article 77 of the law referred to provides that the duration of the investigation of the explosion, which remains in principle fixed at eight days, may be renewed once " When the necessary investigations for the event The truth for a crime or an offence punishable by a sentence of more than or equal to five years' imprisonment shall not be deferred " ; that this decision is taken by the public prosecutor of the Republic and presupposes that the police officers' diligence May not be interrupted without damage to the investigation;
46. Considering, second, that having regard to the requirements of public order and prosecution of the perpetrators of offences, the legislator may provide for the possibility of conducting searches, home visits and night seizures in the event of a crime Or a crime relating to organised crime and delinquency has just been committed, provided that the authorisation to carry out these operations emanates from the judicial authority, the guardian of individual freedom, and that the conduct of the Authorised measures with appropriate procedural safeguards; that, in this case, the legislature has made the judge of freedoms and detention the competent authority to allow night searches and home visits and Seizure of exhibits; that he required a written and reasoned decision specifying the classification of the offence for which the evidence is sought, the address of the premises concerned, the factual and legal factors justifying the need for the operations ; moreover, he has placed these operations under the control of the magistrate who authorised them, who can move to the scene to ensure compliance with the legal provisions; finally, he has made it clear that the operations in question can hardly be Of a declaration of invalidity, which is of a public nature, to have an object other than the search and the recognition of the offences concerned;
47. Considering that it is clear from all of these conditions that the legislator did not bring to the principle of inviolability of domicile an infringement not necessary for the search for serious and complex offenders;
As to the applicable regime In preliminary investigation:
48. Considering that Article 706-90 new of the Code of Criminal Procedure, as well as the amendments to Article 76 of the same Code by the II of Article 14 of the Act referred to, amend the system of searches, home visits and seizures of Evidence in the context of preliminary investigations; in particular, such investigations may be carried out without the consent of the person in which they take place if the requirements of an investigation relating to an offence are required Punished by imprisonment for a term equal to or greater than five years; that they may be carried out at night in the context of investigations of delinquency or organised crime referred to in Article 706-73, subject to They do not relate to residential premises;
49. Whereas, according to the applicants, these provisions, by their ' "Particularly general and permanent", do not adequately protect individual freedom and do not guarantee " In an appropriate manner " The inviolability of the home;
50. Considering that the operations in question cannot be carried out without the consent of the person to whom they take place only on the decision of the judge of the freedoms and the detention of the High Court, at the request of the prosecutor of the Republic; that they must be justified by the need to search for perpetrators of imprisonment for a term of imprisonment of more than five years;
51. Considering that such operations may be carried out at night only in premises other than accommodation and on the decision of the same judge in the seat for one of the offences listed in Article 706-73;
52. Considering, therefore, that the provisions criticised do not relate to the inviolability of the home an excessive attack;
As regards the regime applicable in the context of the inquiry:
53. Considering that the new section 706-91 of the Code of Criminal Procedure modifies the regime applicable to searches, home visits and seizure of exhibits in the context of a statement relating to facts entering the field Application of Article 706-73; that, in particular, such investigations may be carried out at night when they do not concern residential premises; that, in the event of an emergency, they may relate to residential premises in three Assumptions: " -1 ° When it is a crime or a flagrant offence; - 2 ° Where there is an immediate risk of missing evidence or physical evidence; - 3 ° Where there is one or more plausible reasons for suspecting that one or more Several persons in premises where the search is to be carried out are in the process of committing crimes or offences falling within the scope of Article 706-73 ;
54. Considering that, according to the applicants, those provisions bear " Excessive interference with constitutionally protected rights and freedoms, including the principle of the inviolability of the home;
55. Considering that the provisions of Article 706-91 are reserved for the search for the offences referred to in Article 706-73; that the possibility of conducting searches, home visits and seizure of exhibits during the night shall not Concerns that premises other than housing; that it is subject to the authorisation of the investigating judge given to judicial police officers acting on letters rogatory; that the possibility that such operations may also Concern, in certain cases of limited urgency listed, housing premises, is also subject to an authorisation by the investigating judge;
56. Considering that these measures are justified by the search for the perpetrators of particularly serious offences or the need to intervene in premises where such offences are being committed; that the concept of " Immediate risk of Disappearance of evidence or material evidence " Must be understood as allowing the investigating judge to authorize a night search only if the search cannot be carried out in other circumstances; that, on that reserve, the Criticized provisions do not unduly prejudice the principle of the inviolability of the home;
With respect to interceptions of connections issued by the telecommunications channel:
57. Whereas the first paragraph of Article 706-95 inserted in the Code of Criminal Procedure by Article 1 of the Act referred to: If the necessities of the investigation or preliminary investigation into one of the offences Within the scope of Article 706-73 requires it, the Judge of the Freedoms and Detention of the High Court may, at the request of the Prosecutor of the Republic, authorize the interception, recording and transcription of Correspondence issued by the telecommunications route in accordance with the procedures laid down in Articles 100, second paragraph, 100-1 and 100-3 to 100-7, for a maximum period of fifteen days, renewable once in the same conditions of form and Duration. These operations shall be carried out under the control of the Judge of Freedom and Detention " ;
58. Considering that, according to the applicants, " The interceptions of correspondence on the initiative of the public prosecutor do not provide sufficient guarantees under Article 66 of the Constitution " ;
59. Considering that the provisions criticised apply only to the search for the authors of the offences falling within the scope of Article 706-73; that they must be required by the needs of the investigation and authorised by the judge The freedom and detention of the High Court, at the request of the public prosecutor; that such authorisation shall be granted for a period of up to 15 days, renewable only once, under the supervision of the judge of the Freedoms and detention;
60. Considering, on the other hand, that the procedural guarantees required for the use of such processes in the course of the investigation, in relation to other types of offences, remain applicable;
61. Considering that, under these conditions, the provisions criticised do not unduly infringe the confidentiality of privacy or any other constitutional principle;
As regards sonorisations and image fixations of certain Places or vehicles:
62. Whereas the first two paragraphs of Article 706-96 inserted in the Code of Criminal Procedure by Article 1 of the Act referred to: When the necessities of information concerning a crime or a crime falling within the scope of the Pursuant to Article 706-73, the examining magistrate may, after the opinion of the prosecutor of the Republic, authorise the officers and judicial police officers committed on the basis of a reasoned order to set up a Technical device having as its object, without the consent of the persons concerned, the capture, fixation, transmission and recording of words pronounced by one or more persons in private or confidential capacity, in places or vehicles Private or public, or the image of one or more persons in a private place. These operations are carried out under the authority and control of the investigating judge. -With a view to establishing the technical arrangements referred to in the first subparagraph, the investigating judge may authorise the introduction into a vehicle or private place, including outside the hours provided for in Article 59, without the knowledge or consent of the Owner or owner of the vehicle or occupant of the premises or of any person who owns a right in them. In the case of a place of residence and the operation must take place outside the hours provided for in Article 59, that authorisation shall be issued by the judge of the freedoms and detention seized for that purpose by the investigating judge. Such operations, which may have no other purpose than the establishment of the technical apparatus, shall be carried out under the authority and control of the investigating judge " ; the rest of this article, as well as articles 706-97 to 706-102 new, Provide for the conditions for the establishment of these devices, as well as the terms and conditions for their use and destruction upon the expiry of the period of limitation of public action; in particular, Article 706-98 provides that: ' These Decisions are taken for a maximum of four months. They may be renewed only under the same conditions of form and duration " ;
63. Considering that, according to the applicants, " The ability to survey homes, workplaces and vehicles " Deals with individual liberty, the right to privacy, and the inviolability of the home; These new provisions to provide " No limitation in the time of use of sonorisations " ;
64. Considering that the search for the authors of the offences referred to in Article 706-73 justifies the establishment of technical devices for the purpose, without the consent of the persons concerned, of the captation, fixation, transmission and The registration of words or images, provided that the authorisation to use them emanates from the judicial authority, the guardian of individual liberty, and that appropriate procedural safeguards are provided; that, in the present case, the contested measures May be implemented only after the opening of information and provided that the requirements of the information so warrant; that the legislature has made the examining judge or, where appropriate, its application, the judge of freedoms and Detention, the competent authority to order the use of such procedures; that it has required a written and reasoned decision specifying the classification of the offence for which proof is sought; that it has specified that the authorisation of the magistrate It would be valid for a maximum period of four months and be renewable only under the same conditions of form and duration; furthermore, it has placed those operations under the control of the magistrate who authorised them; and finally, He stated that each of the transactions would be the subject of a record, that the recordings would be placed under closed seals and that they would be destroyed upon expiry of the limitation period for public action;
65. Considering that the new Article 706-101 of the Code of Criminal Procedure restricts the content of the minutes, drawn up by the investigating judge or the judicial police officer committed by him, to only those recordings that are relevant to the manifestation of the truth Which describes or transcribes the recorded images or sounds; that, therefore, the legislator has necessarily understood that the sequences of private life foreign to the infringements in question cannot in any case be kept in the file of the Procedure;
66. Considering that, subject to the reservation set out in the previous recital, the provisions criticised are not contrary to the Constitution;
With regard to the regime of nullity:
67. Whereas Article 706-104 inserted in the Code of Criminal Procedure by Article 1 of the Act referred to: The fact that at the end of the investigation or the information or before the court of judgment the aggravating circumstance of tape Shall not constitute a cause of nullity of acts regularly performed in accordance with the provisions of this Title " ;
68. Considering that, according to the applicants, by precluting any invalidity in the event of abuse or misuse of proceedings, those provisions shall bear ' A particularly serious and unprecedented attack on constitutionally protected rights and freedoms Protected " ;
69. Considering that the special procedures defined by Article 1 of the Act referred to are such as to seriously affect the exercise of constitutionally protected rights and freedoms, such as individual freedom, the inviolability of the home and the Secrecy of private life; that the judicial authority, the guardian of individual liberty, can therefore only authorise their use to the extent necessary for the search for the perpetrators of particularly serious and complex offences, Itself necessary for the preservation of constitutional principles and rights;
70. Considering that, in deciding to implement one of these proceedings, the judicial authority must have one or more plausible reasons for suspecting that the facts constitute one of the offences listed in Article 706-73 new of the Code of criminal procedure; that, if the legislature could not nullify the acts of investigation or investigation if the aggravating circumstance of an organised band appeared to have been marked on the date they were authorised, it could not Generally exempt acts that would have been authorized in disregard of the above requirements;
71. Considering that it follows from the foregoing that Article 706-104 new of the Code of Criminal Procedure must be declared contrary to the Constitution;
On Article 48:
72. Considering that article 48 of the law referred to creates a " Automated national court file for sex offenders " ;
73. Considering that it is supported by the authors of the two references that this article is contrary to the principle of necessity of penalties, would undermine respect for private life and would disregard the fundamental principle recognized by the laws of the Criminal law of minors;
With regard to the applicable constitutional standards:
74. Considering that the registration of the identity of a person in the national automated court file of the perpetrators of sexual offences referred to in article 706-47 of the Code of Criminal Procedure by section 47 of the law referred to a Under Article 706-53-1, inserted in the same Code by Article 48 of the same Law, to prevent the renewal of such infringements and to facilitate the identification of their authors; that this registration shall not Is not a sanction but a police measure; that the authors of the references cannot therefore usefully support that it would disregard the principle of necessity of the penalties which is the result of Article 8 of the 1789 Declaration; However, verify that such registration constitutes unnecessary rigour within the meaning of Article 9 of the Declaration;
75. Considering that the freedom proclaimed by Article 2 of the 1789 Declaration implies respect for privacy;
76. Considering that it is for the legislature, pursuant to Article 34 of the Constitution, to lay down the rules concerning the fundamental guarantees given to citizens for the exercise of civil liberties; that it should, in particular, ensure The conciliation between, on the one hand, the safeguarding of public order and the search for offenders, both necessary for the protection of principles and rights of constitutional value and, on the other hand, respect for private life and Other constitutionally protected rights and freedoms;
With regard to the registration in the automated file of sex offenders, the consultation and use of this file:
77. Considering that new article 706-53-1 of the Code of Criminal Procedure provides that the file shall be kept by the criminal record department under the supervision of a magistrate and under the authority of the Minister of Justice;
78. Considering that the new Article 706-53-2 of the Code of Criminal Procedure provides for the recording of the identity of a person in the file as a result of one of the following judicial decisions:
-1 ° A conviction, even not yet final, Including a conviction by default or a conviction with an exemption or an adjournment of the sentence;
-2 ° A decision, even not yet final, made pursuant to Articles 8, 15, 15 -1, 16, 16 bis and 28 of the Order No. 45-174 of 2 February 1945 on juvenile delinquency;
-3 ° A criminal composition provided for by Article 41-2 of the Code of Criminal Procedure, the execution of which was found by the Public Prosecutor;
-4 ° 1 Decision of no place, acquittal or acquittal based on the provisions of the first paragraph of Article 122-1 of the Criminal Code, relating to persons with a mental or neuropsychic disorder at the time of the events;
-5 ° An examination Accompanied by an investment under judicial supervision, where the investigating judge has ordered the decision to be entered in the file;
-6 ° A decision of the same nature as those listed above by the courts or authorities Foreign judicial authorities which, pursuant to an international agreement or agreement, have been notified to the French authorities or have been executed in France following the transfer of sentenced persons;
79. Considering that, where one of the judicial decisions referred to in the 1 ° to 4 ° and the 6 ° occurred, the last paragraph of Article 706-53-2 of the Code of Criminal Procedure provides for the automatic recording in the file only of part of the Offences referred to in Article 706-47 new of the same code; that they are punishable by imprisonment for more than five years, namely:
-the murder or murder of a minor preceded or accompanied by rape, torture or Acts of barbarism;
-rape and aggravated rape punished by Articles 222-23 to 222-26 of the Criminal Code;
-assaults or attempted sexual assaults other than rape, when accompanied by aggravating circumstances Articles 222-28 to 222-30 of the Penal Code;
-the corruption of a minor where the minor is under fifteen years of age, or where the minor has been placed in contact with the author of the facts through the use, for the dissemination of Messages to an undetermined public, a telecommunications network or whether the facts are committed within a school or educational institution or, on the occasion of the students' entrances or exits, in the vicinity of such a Establishment or fact, committed by a major, of organising meetings involving exhibitions or sexual relations to which a minor of fifteen years assists or participates, punished by Article 227-22 amended of the Penal Code;
-infringement Sexual violence, coercion, threat or surprise by a major on the person of a child of 15 years of age when committed either by an ascendant or by any other person having authority over the victim, or by a person who abuses The authority conferred on him by his or her functions, either by several persons acting as an author or an accomplice, or when the minor has been put in contact with the author of the facts through the use, for the dissemination of messages to the destination An undetermined public, a telecommunications network, punishable under Article 227-26 of the Penal Code;
80. Considering that the last paragraph of Article 706-53-2 of the Code of Criminal Procedure provides that judicial decisions concerning the other offences referred to in Article 706-47 of the Code of Criminal Procedure, which are punishable by a Imprisonment for a term of less than or equal to five years, shall not be included in the file, unless such registration is ordered by an express decision of the court or, in certain cases, of the public prosecutor; Offences are:
-assaults or attempted sexual assaults, other than rape, punished by Articles 222-27 and 222-31 of the Criminal Code;
-the use of prostitution of a minor, punishable under Article 225-12-1 of the Code Criminal;
-the corruption of a minor, punishable under Article 227-22 of the Criminal Code;
-the fixing, recording or transmission of the pornographic representation of a minor, punished by Article 227-23 amended Penal Code;
-la The manufacture, transport, distribution or trade of messages of a violent or pornographic nature or of such a nature as to be seriously prejudicial to human dignity, where this message is likely to be seen or perceived by a minor, punished by Article 227-24 of the Penal Code;
-sexual assault without violence, coercion, threat or surprise by a major on the person of a fifteen-year-old minor, punishable under article 227-25 of the Penal Code;
-sexual assault without violence, Coercion, threat or surprise on a minor over fifteen years of age, committed by an ascendant or by any other person who has authority over the victim or by a person who abuses the authority conferred on him by his or her duties, punishes by the article 227-27 of the Penal Code;
81. Considering that the contested provisions do not provide for the inclusion in the file of the authors of other sexual offences, such as exhibitionism or sexual harassment, punishable under Articles 222-32 and 222-33 of the Penal Code;
82. Considering that the new Article 706-53-4 of the Code of Criminal Procedure provides that the duration of the entry in the file is in principle 30 years if it is a crime or an offence punishable by ten years' imprisonment and is twenty years in The other cases; that the convictions and decisions not yet final and the examination accompanied by judicial review are automatically withdrawn from the file in the event of a final decision of non-suit, acquittal or acquittal, and That in the event of the termination or release of judicial review for the examination; furthermore, as soon as a person whose identity is registered in the file has benefited from a legal or judicial rehabilitation, it may request successively The prosecutor of the Republic, the judge of the freedoms and the detention and the President of the Chamber of Education, the erasure of the information concerning him; that the erasure is then ordered if the preservation of the data " No longer appears In view of the purpose of the file, in relation to the nature of the offence, the age of the person in committee, the time elapsed since then and the current personality of the person concerned " ;
83. Considering that the new article 706-53-7 of the Code of Criminal Procedure strictly defines persons who have access to the automated file of sex offenders;
84. Considering that it allows, in the first place, judicial authorities and judicial police officers to question the file in the framework of proceedings concerning a crime of voluntary infringement of life, abduction or sequestration, or Infringement referred to in Article 706-47; that the criteria for interrogation shall be determined by a decree in the Council of State after the opinion of the National Commission on Informatics and Freedoms;
85. Considering that it allows, in the second place, to the prefects and administrations of the State whose list is fixed by a decree in the Council of State taken after the opinion of the National Commission for Informatics and Freedoms to consult the automated file Infringements for the examination of applications for authorisation concerning activities or professions involving contact with minors, by limiting the possibility of consultation to the use of the sole criterion of the identity of the person Subject to the application for approval;
86. Considering that the new Article 706-53-11 of the Code of Criminal Procedure prohibits any connection and connection, within the meaning of Article 19 of the aforementioned Law of 6 January 1978, between the file of the perpetrators of sexual offences and any other File or collection of personal data held by any person or by a State service not dependent on the Ministry of Justice;
87. Considering that, on the one hand, the guarantees provided by the conditions of use and consultation of the file and the attribution to the judicial authority of the power to register and withdraw the personal data, on the other hand, to the The seriousness of the offences justifying the recording of the personal data in the file and the rate of recidivism that characterizes this type of offence, the impugned provisions are of a nature to ensure, between the respect of privacy and the Safeguarding public order, a conciliation that is not manifestly unbalanced;
88. Considering, likewise, that, on the ground that they assign to the consultations of the file by administrative authorities, and taking into account the restrictions and requirements which they attach to them, the contested provisions do not bear any Excessive interference with neither the privacy nor the requirements of article 9 of the 1789 Declaration;
With respect to the obligations placed on registrants:
89. Considering that the new article 706-53-5 of the Code of Criminal Procedure imposes on the person entered in the file of the perpetrators of sexual offences, when the person has been definitively convicted of a crime or an offence punishable by ten years Of imprisonment, to justify his address every six months by presenting himself to a police or gendarmerie for this purpose; that he imposes on the other registered persons to justify their address once a year and to declare their Change of address no later than 15 days after the date of the change; that this obligation may be fulfilled by simple mail addressed to a police or gendarmerie service;
90. Considering that the gravity of the conviction incurred, which determines the scope of the obligation to present itself, constitutes an objective and rational criterion of distinction in direct relation to the purpose of the file;
91. Considering that the obligation of registered persons to make periodic the address of their domicile or residence does not constitute a sanction, but a police measure aimed at preventing the renewal of offences and Facilitate the identification of their authors; that the subject matter of the file requires continuous verification of the address of such persons; that the burden imposed on them in order to permit such verification is not a rigor Which would not be necessary within the meaning of Article 9 of the 1789 Declaration;
With regard to the regime applicable to minors:
92. Taking the view that it follows from Article 20 (2) of the Order of 2 February 1945 that minors under the age of sixteen may not be sentenced to a custodial sentence of more than half the penalty incurred and, therefore, The last paragraph of Article 706-53-2 new of the Code of Criminal Procedure provides for their automatic entry into the file only for offences punishable by imprisonment of more than ten years; that, for the same reasons, ten years The obligation to present every six months to a police or gendarmerie service to justify his or her address is extended to twenty years for minors under 16 years of age;
93. Considering that minors under the age of thirteen years cannot be sentenced to imprisonment and that, as a result, the last paragraph of article 706-53-2 prohibits their automatic registration in the file of sex offenders ;
94. Considering that under Article 201 of the Act referred to in Article 769 of the Code of Criminal Procedure, measures which permit the registration of minors in the file are removed from their criminal record three years after their The minor may request, in accordance with the procedure laid down in Article 706-53-4 new of the Code of Criminal Procedure, successively to the Public Prosecutor of the Republic, to the Judge of the Freedoms And the detention and the President of the Chamber of Education, the erasure of the information concerning him; that the erasure is then ordered if the retention of the data is no longer necessary, in particular with regard to the age of the minor in respect of The offence;
95. Considering that the adaptations thus made in favour of juvenile offenders to the automated file system of sexual offenders are inspired by the need to seek their educational and moral rehabilitation; that they are not Contrary to the fundamental principle recognised by the laws of the Republic in matters of juvenile criminal law;
On Article 63:
96. Considering that Article 63 of the Act referred to in the Code of Criminal Procedure contains an article 30 which reads as follows: The Minister of Justice shall conduct the policy of public action as determined by the Government. It shall ensure the consistency of its application in the territory of the Republic. -To this end it addresses general public prosecution instructions to the public prosecutor's office. -It may denounce to the Attorney General the offences against the criminal law of which it is aware and order it, by written instructions and placed on the record of the proceedings, to initiate or to initiate proceedings or to refer the case to the court Competent for such written requisitions as the Minister deems appropriate " ;
97. Considering that it is supported by the authors of the references that these provisions disregard the principle of the separation of powers, Article 2 of the Declaration of 1789 and Article 66 of the Constitution;
98. Considering that, pursuant to article 20 of the Constitution, the Government determines and conducts the policy of the nation, in particular in the field of public action; that article 5 of the said order of 22 December 1958 State of the Judiciary, place the magistrates of the Public Prosecutor's Office under the authority of the Minister of Justice; that the new Article 30 of the Code of Criminal Procedure, which defines and limits the conditions under which this Authority, does not ignore the French conception of the separation of powers, nor the principle that the judicial authority comprises both the judges of the seat and those of the public prosecutor's office, nor any other principle or rule of constitutional value ;
On item 137:
99. Considering that the I of Article 137 inserts in Chapter I of Title II of Book II of the Code of Criminal Procedure a section 8 entitled: Appearance on prior admission of guilt " ; this section contains ten new Articles, numbered 495-7 to 495-16;
100. Considering that Article 495-7 makes this new procedure of judgment applicable to persons referred to the Public Prosecutor of the Republic or convened for that purpose and recognizing that he has committed one or more offences punishable by punishment Imprisonment for a period of less than or equal to five years; that the prosecutor of the Republic may use it ex officio or at the request of the person or his lawyer; that, however, under Article 495-16, those provisions shall not Are applicable " Neither to eighteen-year-olds, nor to press offences, unintentional homicide offences, political offences or offences for which the prosecution is provided for by special law " ; whether they are not Applicable under section 495-11 to persons referred to the court by the investigating judge;
101. Considering that Article 495-8 lays down the limits and conditions under which the prosecutor of the Republic may propose to the person concerned the execution of one or more penalties; in particular, in the case of a sentence The term of imprisonment shall not exceed one year or exceed one half of the penalty of imprisonment; that, in the case of a fine, the fine shall not exceed the amount of the fine incurred; The same article specifies that both the recognition of guilt and the proposal of the penalty must take place in the presence of the lawyer of the person concerned; that the latter, informed of the possibility that he has to ask for an additional period of time 10 days before giving his answer, may consult his lawyer, outside the presence of the public prosecutor, before making his decision known;
102. Considering that Article 495-9 organises the approval by the President of the High Court of the proposal of the Prosecutor's Office, accepted by the person concerned in the presence of his lawyer; that he specifies that the President of the Court shall hear The person concerned and his counsel in the Board of the Board before approving the proposed penalty; that, in the event of a licence, the order is read in a public hearing; and the new section 495-11 specifies the conditions of the approval, which must appear In the statement of reasons for the order; that, in particular, it must establish ' On the one hand, the person, in the presence of his lawyer, acknowledges the alleged acts and accepts the sentence or penalties proposed by the Public Prosecutor, on the other hand That such punishment is justified in the light of the circumstances of the offence and the personality of its author " ; that the order may be appealed by the convicted person;
103. Considering that Article 495-13 defines the rights of the victim who, when identified, is informed without delay and by any means of the proceedings and invited to appear at the same time as the author of the facts, accompanied where appropriate by his A lawyer, before the chairman of the court of large instance or his delegate in order to become a civil party and seek compensation for his damage; that, if the victim has not been able to exercise his rights at the time of approval, or that it has not been The prosecutor of the Republic must inform him of her right to request the author of the facts at a hearing in the correctional court, of which she will be notified, to allow him to be informed of the facts. To become a civil party;
104. Considering that article 495-14 prohibits the reporting, before the court of inquiry or judgment, of statements made or documents submitted during the proceedings when the proposal of the prosecutor's office has been refused or not approved;
105. Considering that the applicants submit that these provisions disregard the right to a fair trial and infringe the principles of presumption of innocence, equality before the courts and publicity of the proceedings;
As regards The grievance alleging ignorance of the right to a fair trial:
106. Considering that, according to the applicants, by giving the prosecuting authority the possibility to propose a penalty of imprisonment and a fine, the procedure for the appearance on prior admission of guilt infringes the principle of separation of the Authorities responsible for public action and the authorities for judgment and puts the person concerned " In situations of real pressure under the threat of placement in remand or under judicial supervision, or of an aggravation of Penalty in case of refusal of the prosecutor's proposal " ;
107. Considering, first, that, if the penalty is proposed by the public prosecutor and accepted by the person concerned, only the President of the High Court can certify this proposal; that it is for that purpose to verify the qualification Of the facts and to question the justification of the penalty in the circumstances of the offence and the personality of its author; that it may refuse the approval if it considers that the nature of the facts, the personality of the The person concerned, the situation of the victim or the interests of the society justify an ordinary correctional hearing; that it is clear from the general scheme of the contested provisions that the President of the High Court will also be able to Refuse to certify the proposed sentence if the victim's statements shed new light on the conditions under which the offence was committed or on the person's personality; and that, subject to that reservation, the provisions They do not infringe the principle of separation between the authorities responsible for public action and the authorities for judgment;
108. Considering, second, that the lawyer, whose assistance is compulsory, will be present throughout the procedure for appearance on prior admission of guilt; that, in particular, the lawyer will be present when the person concerned recognises The facts, that he will receive the proposal of the State Prosecutor's sentence, that he will accept or reject this proposal and, in the event of acceptance, that he will appear before the President of the High Court; that the lawyer may freely Communicate with the client and immediately consult the case file; that the person concerned will be notified that he or she may apply for a period of ten days before giving or refusing to agree to the proposal of the prosecutor of the Republic; that, even when it has given its approval at the time of approval, it will have ten days to appeal the conviction; that, having regard to all the guarantees thus provided by the law, the right to a fair trial Is not disregarded by the impugned provisions;
With respect to the grievance alleging ignorance of the presumption of innocence:
109. Considering that the applicants submit that the new procedure established by Article 137 of the Act referred to is contrary to Article 9 of the 1789 Declaration in that it introduces a presumption of guilt and reverses the burden of the Evidence by placing the accused person in a position to accuse herself;
110. Considering that, if it follows from article 9 of the Declaration of 1789 that no one is obliged to accuse himself, neither this provision nor any other of the Constitution prohibits a person from freely recognizing his guilt;
111. Considering, moreover, that the judge of the seat is not bound by the proposal of the prosecutor or by its acceptance by the person concerned; that it is for him to ensure that the person concerned has admitted freely and sincerely to be the author of the facts and Ascertain the reality of the latter; that, if the person, in the presence of his or her lawyer, makes an order for approval, the person acknowledges the facts of the case and knowingly accepts the sentence or penalties proposed by him. The prosecutor of the Republic; that the judge must therefore verify not only the reality of the person's consent but also his sincerity; and finally, in the event of refusal of approval, Article 495-14 new of the Code of Criminal Procedure provides for That the minutes of the procedure for appearance on prior admission of guilt cannot be transmitted to the court of instruction or judgment and that neither the public prosecutor nor the parties can report before that court Jurisdiction of the declarations made or documents submitted during the proceedings;
112. Considering that, in these circumstances, Article 137 of the law referred to does not affect the principle of the presumption of innocence;
With regard to the complaint alleging breach of equality before the courts:
113. Considering that, according to the applicants, the principle of equality before the courts would be disregarded " In respect of persons prosecuted for the same facts " And " As regards the victims of offences " ;
114. Considering, first, that the provisions of Article 137 do not result in unjustified discrimination between persons prosecuted for the same facts according to whether or not they recognise their guilt; that, in either case, Are respected for the rights of defence and the presumption of innocence;
115. Considering, second, that the new Article 495-13 of the Code of Criminal Procedure guarantees the rights of the victim, whether or not the victim has been identified before the approval hearing, or whether or not she has been able to appear at that hearing ; that its civil-party rights shall be safeguarded in all cases; that its civil interests will be the subject of an order of the President of the High Court at the time of approval, or of a judgment of the Court Correctional after this;
116. Considering that, as a result, the complaint alleging breach of equality before the courts is unfounded;
With regard to the complaint alleging disregard of the principle of advertising the debates:
117. Considering that it follows from the combination of articles 6, 8, 9 and 16 of the Declaration of 1789 that the judgment of a criminal case which may lead to a deprivation of liberty must, save in particular circumstances requiring the The subject matter of a public hearing;
118. Considering that it constitutes a judicial decision the approval or refusal of approval by the President of the High Court of the sentence proposed by the Public Prosecutor's Office and accepted by the person concerned; that this approval is Which may lead to a deprivation of liberty for a period of one year; that the non-public nature of the hearing in which the President of the Court of First Instance takes a decision on the proposal of the Public Prosecutor's Office, even where none Special circumstances do not require in camera, disregard the constitutional requirements set out above; it follows that the words must be declared to be contrary to the Constitution: In the Board of the Board " At the end of the first Sentence of the second subparagraph of Article 495-9 of the Code of Criminal Procedure;
Article 121:
119. Considering that Article 121 of the Act amends the conditions under which a person under examination may, on an exceptional basis, be placed in pre-trial detention; that, pursuant to Article 137-1 of the Code of Criminal Procedure, Pre-trial detention is ordered by the judge of freedoms and detention, seized by a reasoned order of the investigating judge, who transmits to him the case of the proceedings and the requisitions of the public prosecutor Article 137-4 of the same Code provides, however, that the investigating judge may also decide not to transmit the case to the judge of liberty and detention if he considers that a request for temporary detention by The prosecutor of the Republic is not justified; that the new provisions of the law referred to supplement Article 137-4 by a new paragraph which provides that, in such a case, the public prosecutor may refer the case directly to the judge Freedom and detention, in the event of a crime or an offence punishable by ten years' imprisonment, provided that his requisitions specify that he intends to apply this procedure and that they are motivated either by the need to protect the To ensure its continued availability to the courts, to put an end to the infringement or to prevent its renewal, or to put an end to an exceptional and persistent disorder to the public order caused by the The seriousness of the offence, the circumstances in which it was committed or the extent of the harm it caused; and
120. Considering, first, that the new provisions of Article 137-4 of the Code of Criminal Procedure do not affect the jurisdiction of the judge of freedoms and detention in remand custody; that Article 66 of the Code of Criminal Procedure Constitution is therefore not well known;
121. Considering, in the second place, that the possibility granted to the public prosecutor, for the reasons and in the cases mentioned above, to refer directly to the judge of the freedoms and detention of a request for placement in pre-trial detention that the An investigating judge considers that it is unwarranted and based on objective and rational criteria, inspired by a ground of general interest in direct relation to the subject-matter of the law; that the difference in treatment established between the two Persons whose provisional detention is required therefore does not result in unjustified discrimination;
122. Considering that, under these conditions, Article 121 is not contrary to any constitutional requirement;
On Article 186:
123. Considering that Article 186 of the Act referred to in the Code of Criminal Procedure includes articles 723-20 to 723-28 relating to the development of the purpose of imprisonment; that persons sentenced to one or more punishments Imprisonment for a term ranging from six months to two years will now, for the last three months, benefit from the development of their sentences; that this regime will also apply during the last six months to persons convicted of a A period of between two and five years; that the accommodation measures will consist of a semi-liberty regime, an outside placement or an electronic supervision; and the Director of the Prisons of Insertion and Probation, after the opinion of the head of establishment, will propose to the sentencing judge the most appropriate accommodation to the personality of the convicted person, except in the case of misconduct, of the absence of a serious rehabilitation project, Physical impossibility of setting up a measure, or refusal by the person concerned; that the judge of the application of the penalties will then have a period of three weeks to decide, after the opinion of the prosecutor of the Republic, by order May appeal; if the Director of the Prison and Probation Services, if he does not rule within that period, may, by a qualified decision of " Judicial administration ", decide to implement the measure That it will notify the judge of the application of the penalties and the prosecutor of the Republic; that the latter may, within 24 hours, institute proceedings before the President of the Chamber of The application of the sentences of the Court of Appeal;
124. Considering, in the first place, that no principle, nor any rule of constitutional value, prohibits the legislature from giving to authorities other than courts the care to fix certain procedures for the execution of penalties Of imprisonment and to qualify them as " Judicial administration measures " ; in this case, if the law has allowed the Director of Prison and Probation Services to carry out such a measure when, as proposed by the Judge of the application of the sentences, the latter has remained silent for three weeks, this measure will have to be notified to the prosecutor and the judge of the application of the sentences before it is carried out; that the prosecutor can train Against it a suspensive appeal; that the judge of the application of the penalties, who is not deprived of his powers under articles 712-4 and later of the Code of Criminal Procedure, may revoke it ex officio in accordance with the provisions of the article 723-26; that, in those circumstances, the provisions in question do not disregard the constitutional prerogatives of the courts in relation to the delivery and enforcement of sentences;
125. Considering, in the second place, that the execution of an end of imprisonment in the form of a semi-liberty regime, an outplacement, an online supervision or an exit permit is a measure by In the case of an appeal by the public prosecutor, the detainee may submit his observations; thus, the provisions in question are not unfamiliar with the constitutional principle of the Respect for the rights of the defence or the right to an effective judicial remedy arising from Article 16 of the 1789 Declaration;
126. Considering that it follows that Article 186 of the law referred to is not contrary to the Constitution;
127. Considering that there is no place for the Constitutional Council to automatically raise any other matter of conformity with the Constitution,
Decides:

Article 1.


The following provisions of the law on the adaptation of justice to changes in crime are declared to be contrary to the Constitution:
-Article 1, Article 706-104 of the Criminal Procedure Code ;
-in Article 137, the words: " In the Board of the Board " At the end of the first sentence of the second subparagraph of Article 495-9 of the Criminal Procedure Code.

Item 2.


The surplus of Articles 1 and 137 of the same Law, as well as Articles 14, 48, 63, 121 and 186, shall be declared in accordance with the Constitution subject to the reservations set out in recitals 6, 17, 18, 33, 56, 65 and 107.

Article 3.


This decision will be published in the Official Journal of the French Republic.
Delivered by the Constitutional Council at its meeting on 2 March 2004, where: MM. Yves Guéna, Chairman, Michel Ameller, Jean-Claude Colliard, Olivier Dutheillet de Lamothe, Pierre Joxe, Pierre Mazeaud, Monique Pelletier, Dominique Schnapper and Simone Veil.


President,

Yves Guéna


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