Key Benefits:
ADJUSTMENT ACT JUSTICE
ON THE EVOLUTION OF CRIME
Mr. Chairman, ladies and gentlemen of the Constitutional Council, we have the honour to refer you, pursuant to the second paragraph of Article 61 of the Constitution, the whole of the law adapting justice to the evolutions of crime as adopted by Parliament.
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Prealably to the statement of objections and means In a state of law, the right to security, which no one disputes, must be reconciled with the right to security as derived from Article 2 of the Bill of Rights. The man and the citizen of 1789, that is, with the right not to be prosecuted, arrested, detained or arbitrarily sentenced.
The protection of individual liberty is also based on Article 16 of the Declaration of 1789. All A society in which the guarantee of rights is not guaranteed, nor the separation of the determined powers, has no Constitution ".
In order to avoid any misunderstanding of the reference, its authors intend to recall their attachment Republican to pursue the objective of safeguarding public order as one of the elements of a society that guarantees respect for the other, but in the respect of constitutionally protected rights and freedoms. This is particularly the case when it comes to the most serious forms of crime. In that case, special procedures derogating from the common law are justified, but must be strictly defined, limited in time, and surrounded by all the guarantees of the most precise and effective rights possible. But the invocation of exceptional circumstances justifying the implementation of special rules, provided that they are rigorously framed, cannot legitimise the insidious slide of such extraordinary procedures to a A state of permanent exception, except to radically change the nature of our democratic system and its judicial balance.
The issue of this referral is there.
is important to you that, at the end of the legislative process, it is your responsibility to ensure that the sustainability of this balance, which is fundamental to our republican pact, is
. Echoes the principles established by the European Court of Human Rights, which are censored the provisions whose drafting and implementation possibilities are likely to be excessive and manifestly disproportionate to the Individual freedoms of any individual, regardless of social condition, origin or nationality.
Thus, in view of your case law, cannot be accepted, for example, the procedural measures that are not necessary and obviously Disproportionate to the constitutionally protected rights and freedoms (decision of 16 July 1996), the absence or insufficiency of effective guarantees of those rights and freedoms, including the right of everyone to benefit from criminal proceedings And a fair and just trial conducted under the real control of a fully independent and impartial judicial authority (decisions of 19 and 20 January 1981, 2 February 1995). These principles are based on respect for individual freedoms, the presumption of innocence, and no one can ignore it at the moment, from the principle of equality of all to justice that flows from that of equality before the law
An unprecedented mobilisation of the judiciary, lawyers and magistrates combined, academics, multiple associations, and independent bodies such as the National Advisory Commission on Human Rights (1), the law criticised Breaks the balance around which our criminal justice has always been ordered.
Also, before criticising in detail several articles of the law that are referred to you, it seems essential to put in perspective the dangerous logic of This text, very long and catch-all, where the most serious offences are cohabiting with those of the least disturbing to the public order, such as motor vehicle impoundment.
Admittedly, the skill of its drafting is to drown them Breaches of constitutional principles in a plethora of provisions which, read in isolation, could appear without great danger to freedoms. Of course, you will not be allowed to take this camouflage and trivialisation of the state of exception. As you have measured, the approximation of several articles of the law shows that our criminal procedure thus risks changing nature, favouring the prosecution authorities, under the control of the Minister of Justice, in a new way. To the detriment of individual freedoms and the constitutional guarantees attached thereto.
To be convinced, a few illustrations suffice. Let us judge it.
First, section 1 of the Act uses the concept of " Organized band " By embracing a whole litany of offences (fifteen), which are very different in nature, since they range from crimes of trafficking in beings As a result of acts of terrorism, theft and destruction of property, or assistance for the stay of an illegal alien. In addition, there is a non-exhaustive list of other crimes and offences, the definition of which is left to chance at the reading of the Criminal Code and which only completely undergoes the effects of this special qualification. The link between this list of offences and serious crime is not clear. The justification for an extraordinary procedure all round
is thus created a new category of offences in perfect contradiction to Article 8 of the 1789 Declaration of necessity and legality Offences and penalties.
In general, it appears that this concept of " "Organised band" in Article 132-71 of the Criminal Code is vague and imprecise. As the CNCDH reports, it is more closely related to a concept of criminology than to a clear definition. It was difficult to apprehend, before this extension of the fight against crime in all its forms, an aggravating circumstance useful to the court of judgment in order, where appropriate, to justify, in law, the pronouncement of a Death penalty. Its delicate use therefore intervened at the end of the procedure and after all the investigations were conducted and previously controlled thanks to the work, most often collegiate, of the judges of the seat
The purpose of the concept is to enable the implementation, ab initio, of exceptional criminal procedural rules and particularly attentive to individual freedoms, since it justifies, inter alia, the lengthening of the term of custody, including For some minors over the age of 16, and the delay in the arrival of the lawyer during this period of police detention, the laying of wiretaps and cameras at the private homes of persons, night searches in private homes. In the society of the show and the revealed police truth, this law opens up Big Brother. In the rule of law, it certainly violates constitutionally guaranteed freedoms.
The reversal of logic starts when the use of this imprecise qualification is subject to the choice of judicial police officers who Will be able to use it, for example, during the blast investigation, the duration of which can now be up to 15 days.
The incredibly sensitive nature of rights and freedoms triumphs when we consider, under the new article 706-104 The Code of Criminal Procedure, that, after the police investigation or the judicial procedure, the fact that the fact of an organised band is not retained does not constitute a cause of nullity of the acts
. The provision of judicial police officers a vague and imprecise concept, which justifies the most serious measures against individual freedoms, but whose erroneous employment is not subject to any judicial
! They wish to reiterate here their support for the republican spirit of the police and the gendarmerie, which generally carry out their heavy duties. However, they reclaim that the guarantee of rights within the meaning of Article 16 of the 1789 Declaration presupposes a balance in the conduct of the criminal trial, which is itself the protector of the forces of law and order by avoiding unjustified
. In other words, one wonders why the police authorities should refrain from using this opportunity in the greatest number of cases, since there will be no sanction for their error of departure. And when the " Plumbers " Will be able to remove the cameras and microphones installed for four months at home, you will release four days of on-call duty, leave your home in the early morning in the eyes of your children concerned with the noise, but Reassured that the police are watching, no doubt will get an apology for this " Disturbance due to an error from our operator " ...
We especially wonder how, in view of your case law, and for example your decision of 16 July 1996, such an extensive and catch-all procedural regime can be accepted in the light of Article 8 of the 1789 Declaration and the principles of criminal legality, necessity and proportionality of
. That the procedure for appearance on prior admission of guilt, as provided for in Article 137 of the Law, infringes the right to a fair trial and equality of arms, the principles of presumption of innocence and equality before the Justice.
" Plead guilty " Thus established, unquestionably devoid of the guarantees which exist in other countries-including the United States-for procedures of the same kind, will result in an agreement between the public prosecutor-the prosecutor - And the appearing party, assisted by his counsel. On the one hand, this procedure disregards the principle of separation of the investigating and judgment authorities (your decision of 2 February 1995) and creates confusion between the action of prosecution and the decision of the courts. All the more so because, on the other hand, this agreement will be held in secret behind closed doors, which is hitting the whole of the constitutional right to be tried publicly by an independent and impartial tribunal. All the pressure is possible, including the possibility of holding the pre-trial detention or the risk of a heavier penalty in case of refusal of the agreement proposed by the prosecutor. In that regard, the approval by the judge of the seat in the Board of the Board cannot be sufficient to consider this procedure in accordance with the requirements of your case-law. The reading of the only result of the approval in public hearing is only a weak alibi that makes no mistake. How, finally, to ignore the fact that this half-secret justice system, which could remain discreet according to the circumstances and the persons concerned, would allow individuals in objectively similar situations not to be treated with The same way. As for the identified victim, it will be convened, before the president of the court, at the final stage of the approval, when the essential part will be played. To exclude the victim from the criminal trial is a major regression which, again, does not recognise the right to the remedy guaranteed by Article 16 of the 1789 Declaration and equality before the law.
In his time, Jean de La Fontaine recalled " According to whether you will be powerful or miserable, court judgments will make you white or black. "
It is true that it was before 1789.
Third, ignorance of the fundamental principle recognized by the laws of the Republic released by you In your decision of 29 August 2002, the law provides that a minor over the age of 16 may be placed in police custody for four days if he or she is involved in a case where an adult is likely to be involved. Never again, such an infringement of the special protective criminal law of minors had been envisaged except in the field of drug trafficking. An extension of this exception to fifteen categories of offences, so-called organised crime whose borders are poorly defined, is incompatible with the guiding principles of the criminal law of minors
Infringement of the principle of equality before the law insofar as it cannot be placed in an excessively long-term care of a certain category of minors, the one who may have a connection with a major offender
The unbearable damage to the child's dignity by the presence in the police files of minors at the age of ten.
Finally, we should add to this general overview that the expansion of police powers under the Theoretical control of prosecutors and the jurisdiction granted to the Public Prosecutor to decide on guilt and a prison sentence for about half of the offences defined in the Criminal Code are The criticised law assigns the authority of the Minister of Justice to the conduct of public action. Section 63 of the Act entrusts the custody of seals with the authority to issue specific instructions to the record (s. 30 new of the Code of Criminal Procedure) and article 64 of the text strengthens the power of the Attorneys General with regard to prosecutors of the Republic (art.
the same time, the constitutional revision, adopted in the same terms by the National Assembly and the Senate, to increase the guarantees of independence of prosecutors, in particular thanks to the rules of appointment, Has not yet been submitted to Congress. However, it was, in the past, intended by the President of the Republic.
Admittedly, you have already decided that the judges of the seat and the public prosecutor's office are all members of the judicial authority, while indicating that from a certain degree of infringement On freedoms, only the judge of the seat can fulfil the mission determined by Article 66 of the Constitution (Decision of 11 August 1993). But, on the other hand, you have never faced such an increase in the powers of the public prosecutor, although its independence has not been further protected. While the hierarchical subordination of the magistrates of the public prosecutor's office is increasing, instead of further guaranteeing their independence, they are accentuated in the course of criminal proceedings to the detriment of the parties and the judges of the seat, before, In the end, to give them the power to decide on penalties after having conducted or supervised, more or less far, the police investigation. This reversal of the rationality of our judicial system is at the expense of fundamental rights and freedoms.
The finding is bitter, the danger is immense.
The new powers granted to the judge of freedoms and detention must not Not mislead. They will lead, by placing it under a mass of work beyond the initial specificity of the function, to make it less and less effective the reality of the control it will be able to exercise for the benefit of freedoms. Appearances will be saved; but only they.
Article 66 of the Constitution making the judicial authority the guardian of individual freedoms is then emptied of its substance and Article 2 of the Declaration of 1789 guaranteeing the Right to the unknown security.
The law in question is breaking the balance of our judicial system and, beyond, our democratic system. The social body, so attentive to equality before the law, would not understand that, through the sparse pieces of a jigsaw puzzle that, once assembled, would leave the face of Leviathan, an exceptional regime in which the right to safety Would be reduced to a congrue but of choice for some and where, soon, freedom would become an incongruous claim.
The perfume of unconstitutionality that emerges from this law is stubous. It is up to you to reopen the windows for freedom.
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In support of this referral, we are developing the following complaints against the whole of the law: In particular, sections 1, 14, 48, 63 and 137 of the Act, and all others to raise even of its own motion.
I. -Articles 1 and 14 of the Law
These Articles create a Title XXV in Book IV The Code of Criminal Procedure on the procedure applicable to organised crime and delinquency. The new Article 706-73 lists a list of infringements, fifteen in total, the common characteristic of which is to be defined by reference to the concept of ' Organized band ". The immediate consequence of this particular qualification is to result in the application of a derogatory procedural regime to the common law which is very attentive to individual freedoms. It follows, in particular, that the length of custody and the time of the presence of the lawyer are then more stringent, including for minors over the age of 16, the possibility of placing cameras and microphones in private homes is Created like the one to perform more extensively nightly searches in any place.
I-1. The provisions creating these new offences " Organized band " Are subject to censorship in that they disregard Article 8 of the 1789 Declaration and the principles of necessity, the legality of offences and penalties, but also the law As a result of Article 16 of the 1789 Declaration.
In a fairly similar case, you have thus invalidated for disproportion, in the light of the above-mentioned principles, a criminal provision for the purpose of providing assistance to The entry and residence of foreign nationals in an irregular situation of a terrorist offence. It is interesting to note that, in that decision, you examined the article in question in the light of the consequences that the new qualification would entail from the point of view of the application of procedural rules derogating from the common law (Decision No. 96-377 DC of 16 July 1996, RFDA, 1997, pages 539 and s., note E. Spitz). This decision is in line with that of 3 September 1986, by which you admittedly admitted a derogatory procedure to the common law for the suppression of acts of terrorism, but censored an article which extended these rules Derogating from any infringements, even if committed by imprudence of recklessness, by considering that " The rules of composition and procedures derogating from ordinary law which, according to the legislator, find their justification in the characteristics Without prejudice to the principle of equality before the courts, shall not be extended to offences which do not have the same characteristics and which are not necessarily in relation to those referred to in Article 706-16 of the new Code of Criminal Procedure " (Decision No. 86-213, penultimate recital).
In general, and elsewhere, you are censoring the criminal provisions that are not sufficiently clear and precise (Decision No. 92-316 DC of 20 January 1993).
I-2. In this case, it is certain that the concept of " Organized band " Is in itself unclear and imprecise, to the extent that the circular of application of the new penal code of 14 May 1993 underlines the difficulty of distinguishing this concept from neighbouring ones Such as co-action, complicity, the meeting, but also the instrument of opportunity that it could constitute in the hands of the public prosecutor or the police.
If the offences of drug trafficking, aggravated procuring, Trafficking in human beings, terrorism is undeniably organized crime in the criminological sense of the term, certainly not in the case of the destruction, degradation and deterioration of a property committed in organized band, Criminalisation liable to be used for urban violence or excessive trade union action, theft, extortion of funds, assistance for entry and residence of an alien in an irregular situation. If the first set of offences corresponds to the original intention of the legislator, the second list responds to a confusion of the kinds contrary to the constitutional principles. In the light of parliamentary debates, it seems, in fact, that the intention of the legislator was to crack down on the most serious offences committed against persons, not those directed against property, they would be public, and whose connection with the
In total, the fifteen new categories of offences do not involve any legal coherence or more than any criminal policy. This is the juxtaposition of very different gravity offences. In this list of offences, there are qualifications for which the aggravating circumstance of organised band did not exist.
It is important to note that, prior to the law criticised, this notion of organised band, which is planned Article 132-71 of the Penal Code constituted an aggravating circumstance of the sentence imposed at the judgment stage, after the conclusion of the adversarial debate, the authors, the materiality of the facts, the intention of the defendants, had been definitively Established by the investigation and controlled by the judges, usually in collegiality.
In this case, the judicial police officers and the investigating magistrates are not in a position at the time when they begin To characterize with the necessary legal rigour such a qualification. Therefore, by making a concept defined in the Penal Code to justify a worsening of the penalty, the legislator has disregarded the guiding principles of the criminal trial.
It follows that the This generic offence does not respect the principle of legality of offences and penalties, as you demand in your decision of December 29, 1983.
Judicial police officers will be able to use a plastic concept opening them up to them. For very broad and extremely derogatory investigations into common law, without at any time their actions risk the censorship of the judge!
The result will be that the exception procedure attached to the new category of offences
principle of the necessity and proportionality of the rules derogating from common law is, in turn, seriously misunderstood.
It It must be added that, in the light of Article 16 of the 1789 Declaration, such impossibility of criticising the courts for the use of a qualification which led to the implementation of investigative processes which are prejudicial to the freedoms, infringes the law To the recourse as you have consecrated it several times.
I-3. The infringement of the principle of necessity and the manifest disproportion of which the legislator has vitiated its assessment are all the more flagrant as, once again, the procedural consequences of this qualification are very burdensome from the point of view of the Freedoms.
Thus, once the investigating and prosecuting authorities have chosen the most open qualification, they are possible at the stage of investigation and investigation: interceptions of correspondence at the request of the prosecutor (art. 706-95 new of the Code of Criminal Procedure), the night searches of residential premises in flagrant violation (art. 706-96 new of the Code of Criminal Procedure), the placement in police custody for 96 hours, including a minor over the age of sixteen, with a possible postponement of the presence of the lawyer at the 48th or even the 72nd hour (art. 63-4 of the Code of Criminal Procedure, as drafted by section 14 of the Act), the sound of residential premises.
An unfortunate choice in the initial qualification, and without judicial sanction at any time, does Judicial police officer, even under the control of the prosecutor or investigating judge, will therefore result in the implementation of a procedural regime that is very attentive to constitutionally protected
. Will be the sequence of circumstances when an OPJ decides to use such a qualification for the purpose of assisting an undocumented foreigner in an organized band. It is a whole family, a neighbourhood that will be susceptible to the intrusions already described. Imagine, too, what the sequence of circumstances will be if an OPJ decides to do the same for a moped or two-car theft. Does the infringement of the property, of course reprehensible, justify a debauchery of this scope?
The proportionality test applied to the relationship between the vague and imprecise nature of the qualification Adopted by the legislator, the heterogeneous nature of the infringements of the persons and goods included in the list adopted for Articles 706-73 and 706-74 new, and the consequences for the individual rights and freedoms arising from the Procedure attached to these offences, can only lead to a finding of unconstitutionality.
Censorship will be all the more punishable by the fact that the various powers granted to the prosecuting authorities reveal in themselves several Knowledge of constitutionally guaranteed rights and freedoms.
I-4. The system of custody defined by the new Article 706-88 allows a period of up to four days with a postponement of the visit of the lawyer (i) while being applicable to minors more than sixteen years of age (ii).
(i) 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 1789
. Person for 96 hours already exists for acts of terrorism and the suppression of narcotic trafficking. You have already admitted derogating rules in these matters for obvious reasons for safeguarding public order and the right to security (Decision of 3 September 1986 cited above).
But, in the present case, the scope of the Articles 706-73 and 706-74 new marks the manifestly disproportionate nature of this constraint. The fact that a judge must intervene does not purport that infringement of liberty.
The arrangements for renewal of the period of custody provided for in the penultimate subparagraph of Article 706-88 new having that " Whether the need for the investigation or The instruction (...) requires it ... " The judge of liberty and detention or the investigating judge may decide (by written and reasoned decision not subject to appeal) that custody will be the subject of two extensions of 24 hours each. If the remaining time for further investigations so warrants, a single extension of 48 hours may be decided on the same terms.
The conditions required by the legislator to allow two Renewals of 24 hours or one of 48 hours are particularly imprecise and thus do not guarantee respect for the constitutional principles. Their lack of rigour and precision indicate, in any event, the manifestly disproportionate nature of the objective of safeguarding public order.
These provisions are all the more detrimental to individual freedoms And the right of defence, that pursuant to the last paragraph of Article 63-4 of the Code of Criminal Procedure, as drafted by Article 14 (I) of the Law in dispute, the first interview with a lawyer shall be carried over to the 48th hour when the investigation is
Such a provision cannot be constitutionally justified and also appears to be manifestly disproportionate in relation to the general purpose of the law.
Under the law Applicable-the presence of the lawyer at the 36th hour-this constitutes an unjustified step backwards. As regards a constitutionally guaranteed right (Decision of 11 August 1993), this regression can only be met with the clickable effect that you do not hesitate to play in the matter. Such a measure, if not censored, would symbolize the retrograde attachment of France to the culture of confession, which has nevertheless led our country to be condemned on several occasions by the European Court of Human
. Placing a minor over the age of sixteen in custody for four days constitutes a lack of knowledge of the fundamental principle recognized by the laws of the Republic of Special Criminal Law and the protector of minors that you have identified in your Decision of 29 August 2002.
All the more so because you had the opportunity in your decision of 11 August 1993 to say that the custody of a minor, over thirteen years of age, had to be exceptional for offences of a particular gravity (supra).
This exceptional measure did not exist in our texts until now, as in the field of terrorism, Article 706-23 of the current CDPF specifies that this applicable derogating regime applies only to " Major people ".
From The possibility of placing in police custody a minor if there is " One or more plausible reasons for suspecting that one or more major persons participated, as authors or accomplices, in the commission of the offence " (art. 14, § III, of the law amending Article 4 of the Order of 2 February 1945) manifestly overlooks the fundamental principle that you have recently devoted and is not necessarily justified by the seriousness of the infringements in question. Again, and as has been amply demonstrated, the list of offences provided for in Article 706-73 new covers a field that cannot be used as a basis for such a measure.
addition, an infringement of the principle of equality before the law To the extent that a certain category of minors may be placed in police custody, perhaps having a connection with a major offender.
From the perspective of the protection of minors, such a circumstance, which may not be Not established in the end, cannot justify such differential treatment. Censorship is also subject to this title.
I-5. Sections 706-89 and subsequent searches for searches will not be further subject to censorship.
Until then, the search for night was only possible in the case of the investigation of terrorism, trafficking in Astonishing and immoral. The criticised law opens the scope of night-time searches for all offences covered by Article 706-73, i.e. for fifteen very different types of offences.
As in the case of article 76 of the Constitution of the year VIII proclaiming That " The house of every person living in French territory is an inviolable asylum. During the night, no person shall have the right to enter that in the case of fire, flood or claim made from inside the house ', you have considered night searches by way of exception to article 59 of the PPC which is insufficiently framed In time and without the necessary guarantees from the point of view of the supervision of the judicial authority are such as to result in excessive infringements of individual freedom (Decision of 16 July 1996)
Appears that these searches cover, in accordance with the new Article 706-73 of the Code of Criminal Procedure cited above, a very broad field and that the obvious infringement of the individual's freedom and the inviolability of the domicile are manifestly
(i) With respect to the period of the blast investigation:
On the other hand, it is clear from section 77 of the Act that the explosion investigation can now last up to two weeks, instead of eight days.
Under these conditions, the limited duration that was attached to the searches carried out during the investigation of the blast is losing its relevance. Admittedly, the maximum duration is provided for by law. But that period would be substantially lengthened. To date, the investigation of the blast was in accordance with the hypothesis of the crime being committed, or, in the words of the Court of Cassation, for a period of time which could not exceed a time close to the action
Lengthening the period of investigation of the explosion, the legislature amended the conditions justifying exceptions to the prohibition of night searches.
The relationship between the need for such investigative means and the scope of offences Concerned, on the one hand, and the lengthening of the period open to the investigation of the explosion, on the other, shows an excessive attack on individual freedom.
(ii) With regard to the period of the preliminary investigation:
Article 706-90 The Code of Criminal Procedure, in the initial drafting of the bill before the National Assembly, provided that, by way of derogation from the provisions of Article 76 of the same Code, home visits and seizure of exhibits may Be made " Without the consent of the person concerned " As part of a preliminary investigation into one of the offences falling within the still broad scope of section 706-73.
However, the Senate, the reference to " Consent of the person " Has been deleted on the ground that, in fact, where it is not consenting, " Judicial information is open " For " Overcome " This obstacle, as determined by the Rapporteur. This argument, in support of a serious decline in rights and freedoms, is not admissible in terms of judicial practice, since it implies that the investigating judge, the examining magistrate in charge and at discharge, will necessarily share the Views, and thus endorse the requests, of the public prosecutor in this matter. In addition, such operations are authorised, where they do not relate to residential premises, outside the hours provided for in Article 59 of the said Code, namely between 9 p.m. and 6 a.m.
Carried out in the framework of preliminary investigations of common law, provided for by Article 76 of the Code of Criminal Procedure, has been amended in paragraph I bis of Article 14 of the Law in order to allow the use of searches without the consent of the Person for all investigations involving offences punishable by more than five years' imprisonment.
In total, the preliminary investigation provides for the provisions of Articles 706-90 (new) and 76 of the Code of Criminal Procedure. On the one hand, the conduct of night searches of professional premises without the consent of the person and, on the other hand, the conduct of day searches of the premises without the consent of the person concerned. In so doing, this regime disregards one of the fundamental distinctions made by the Code of Criminal Procedure, which constitutes a guarantee for individual freedoms by means of a modulation of the powers conferred on judicial police officers According to the legal framework of the investigation in which they intervene, namely the investigation of the flagrant or preliminary investigation.
In fact, if Article 56 of the Code of Criminal Procedure, unchanged since 1958, permits, in the case of a crime or a flagrant offence, The OPJ to search the residential premises without the consent of the person, on the other hand, this consent has always been required by the legislator in the preliminary investigations.
There is a notable exception to the This principle applies to searches carried out pursuant to Article 76 (1) of the Code of Criminal Procedure, which is, on a temporary basis, introduced by the Act of 16 November 2001 on daily safety. However, it should be recalled that this law, which the Council did not have to know, limited the possibility of resorting during the preliminary investigation to searches without the consent of the person for the sole investigation of the Offences of trafficking in arms and drugs, in order to enhance the effectiveness of the fight against terrorism and its sources of financing, until 31 December 2003 only.
In contrast to this scheme, the system provided for in Articles 76 and 706-90 (new) of the Code of Criminal Procedure, by its particularly general and permanent nature, do not adequately protect individual freedoms or adequately guarantee the inviolability of the home
Should also point out that, if the searches conducted pursuant to the provisions of article 706-90 (new) must be authorized by the judge of freedoms and detention, his order is not subject to appeal (article 706-92 new), which tends to deprive litigants of any remedy and, as a result, unreasonably interferes with constitutionally protected rights and freedoms.
(iii) With regard to night searches of premises Of housing in the context of the inquiry:
Again, if the law in force allows the investigating judge to issue a rogatory commission for search purposes in all places where useful objects can be discovered However, it must respect the provisions of section 59 in the case of the home of the person being examined.
The provisions of section 706-91 permit the conduct of searches at night and In residential premises for all offences covered by Article 706-73 in three cases: 1 ° when it is a crime or a flagrant offence; 2 ° where there is an immediate risk of missing evidence or evidence Material; 3 ° where there are one or more plausible reasons for suspecting that one or more persons in the premises where the search is to take place are committing crimes or crimes falling within the scope of Application of Article 706-73 ". In addition to applying to a particularly broad range of offences and overlapping assumptions, such searches must be authorized by a written order of the investigating judge, in particular, " The statement Considerations of law or fact which form the basis of that decision ', which is, however, not subject to appeal as provided for in Article 706-92.
In the light of the seriousness of the infringement of the And in view of the absence of statutory remedies, these provisions have an excessive infringement of constitutionally protected rights and freedoms.
For all of these leaders, and in the light of the aforementioned case-law Council, Articles 706-89 to 706-94 new, the last paragraph of Article 76 resulting from its drafting provided for in Article 14, paragraph I bis, shall be declared to be contrary to the Constitution
Articles 706-95, 706-96 and following new of the Code of Criminal Procedure concerning interceptions of correspondence, sonorisations and fixations of images in certain places violate Article 2 of the Declaration of 789, the right to life And the inviolability of the home and article 66 of the Constitution.
In the first place, it appears that the interceptions of correspondence on the initiative of the Public Prosecutor do not provide sufficient guarantees under the article The
in force contained in Articles 100 et seq. Of the Code of Criminal Procedure reserves the right to use telephone tapping only in the context of judicial information. Breaking with the logic of Article 66 of the Constitution that the measures to be taken by the judges of the seat are to be taken by judges, the new Article 706-95 allows the prosecutor of the Republic to require the establishment of wiretaps in the The framework of an investigation of a flagrant or preliminary investigation into one of the offences falling within the scope of organised crime within the meaning of Article 706-73 new.
Yes, you have already considered that Magistrates of the prosecutor's office, like the judges of the seat, are part of the judicial authority (decision of 22 April 1997). However, you have reserved the most serious measures in the light of individual freedoms for the control of the judges of the seat.
It is appropriate to recall that the law of 10 July 1991, which inserted into the code In criminal proceedings Articles 100 to 100-7, limited the use of wiretaps to the investigating judge solely on the basis of Article 81 of the same Code, with the Court of Cassation having formally excluded the use of wiretaps by OPI during the course of The investigation of the flagrant as a preliminary investigation (judgment of 24 November 1989 of the Court of Cassation).
Admittedly, it will be formally for the Justice of Freedoms and Detention (hereinafter: JLD) to authorise the setting up of these wiretaps but, as it has Stated above, the will of the legislator of the Act of 15 June 2000 to make the JLD a judge of experience having the rank of president or vice-president is no longer shared by the legislature of 2004 which provides, that "in the event of incapacity", The JLD in title may be replaced by " The judge of the oldest registered office in the highest rank, which cannot constitute a sufficient guarantee of competence to carry out all the missions of the judge of freedoms and Detention.
Indeed, the imbalance will be large between, on the one hand, the magistrates of the public prosecutor's office, hierarchically subject to the custody of seals whose powers in the direction of public action are clearly affirmed in Article 30 new The Code of Criminal Procedure, as drafted by Article 63 of the draft law and, on the other hand, inexperienced JLD, which are not in a position to have any arguments allowing them to doubt the validity of the application before
. It should be recalled that the JLD is not a judge specialising in its function but, in most cases, acting in addition to other functions. The guarantee of freedoms requires constant work. By loading its function, paradoxically, it is removed from the availability necessary to work effectively for individual freedoms.
It is seen, this procedure, which transfers to the public prosecutor the prerogatives hitherto reserved for the sole judge It is unbalanced because it is insufficiently protective of constitutional rights and freedoms and, as such, must be censored.
Second, the ability to survey homes, workplaces and vehicles seriously Infringement of individual liberty as guaranteed by Article 2 of the Declaration of 1789, the inviolability of the home
Address " And the " Image fixation, euphemisms for the police intrusion at the private home, are Authorised in the context of judicial information relating to one of the offences relating to organised crime within the meaning of the fifteen categories of offences defined in Article 706-73 new. Again, the imprecision of the field of Article 706-73 is fraudty with consequences for individual freedoms.
The establishment of an exception state whose cameras and microphones can enter homes, including the night " To The knowledge or consent of the owner or owner of the vehicle or occupant of the premises " As provided for in the second subparagraph of Article 706-96 of the Code of Criminal Procedure, strikes, in principle and in full force, Article 2 of the 1789 Declaration and the right to privacy.
The use of the judge's permission cannot save such a mechanism. Except to consider that the Inquisition, whose refinements of procedure had no equal but the refinement of its techniques for obtaining admission, offers a model of guarantee for freedoms.
If, for the sole purpose of the reasoning, one is Place on the sole side of the guarantees, the device proposed in Article 706-98 does not support criticism any more, since it does not provide for any limitation in the time of the use of sonorisations. Indeed, they can be " Renewed "" In the same conditions of form and duration ", namely, for a period of four months. You have always ensured that the legislator ensures that the use of the most intrusive investigative measures is strictly necessary and limited in time.
In this case, this condition is fundamentally lacking and, in the case of the Consequently, there is a disproportionate attack on individual freedom and the right to privacy and the inviolability of the home (2).
This is why the authors of the referral, who are deeply committed to the right to security for all, do not May accept that it justifies the use of all means whose price to be paid in terms of freedoms is extravagant as long as no procedural guarantee is actually offered.
I-7. Article 706-104 new of the Code of Criminal Procedure rules out nullity in cases of abusive practice and other procedural misappropriation.
As you have admitted in the fight against tax fraud, " To fully qualify in a manner Express both the requirements of individual freedom and the inviolability of the home " In the fight against crime and organised crime, the law, under penalty of being declared unconstitutional, must " Be accompanied by Requirements and particulars prohibiting any abusive interpretation or practice " (Decision No. 83-164 DC of 29 December 1983).
This decision prefigures the decision of 3 September 1986, by which you admittedly admitted a procedure Derogating from the common law for the suppression of acts of terrorism, but censored an article which extended these derogating rules to too many offences by considering that " Rules of composition and procedures derogating from the law Common who find, according to the legislator, their justification in the specific characteristics of terrorism cannot, without prejudice to the principle of equality before the courts, be extended to offences which do not have the same Which are not necessarily in relation to those referred to in Article 706-16 new of the Code of Criminal Procedure ' (Decision No. 86-213, penultimate recital).
Article 706-104 new states that the The outcome of the investigation or the information or before the court of judgment the aggravating circumstance of an organised band is not retained " Does not constitute a cause of nullity of acts regularly performed ".
By this provision, the Parliament thus allows the criminal exception procedure to become that of common law and disregards the constitutional principle of proportionality between the nature of the operations brought to the service of the clarification of cases and the protection of the
It is true that Articles 706-24, 706-28 and 706-35, entered in Book IV of the Code of Criminal Procedure, entitled " A number of specific procedures are in place, " introduce exemptions for searches in respect of Terrorism, astonishing and pimping. However, contrary to the impugned law, they expressly exclude the validation of incidental proceedings by providing that " Such operations shall not, on pain of nullity, have any other purpose other than research and the recognition of infringements " Other Only
procedural guarantee has allowed you to accept the creation of derogations from the common law by noting that the legislator " Specified [...] that the Operations in question may not, on the ground of nullity, which is of a character of a public order, have an object other than the search and the finding of the infringements which it has referred to. ' (Decision No. 96-377 of 16 July 1996).
For this reason, and A fortiori for infringements covering a much wider scope than that covered by Articles 706-24, 706-28 and 706-35, you will only be able to observe that in this case the legislator, by ruling out " The only procedural guarantee Appropriate " The creation of exceptional and exceptional procedures has been particularly serious-and unprecedented-to constitutionally protected rights and freedoms.
Of all these leaders, the censorship of articles 1 and 14 of the Law is certain.
II. -Article 63 of the Law
This provision amends Article 30 of the Code of Criminal Procedure by giving the Minister of Justice the right to give written and individual instructions to the file. This power must be put in perspective with the changes in the criminal procedure organised by the rest of the law in question, in particular the role of prosecutors in the direction of investigations and in the delivery of sanctions
The principle of the separation of powers, together with Articles 2 and 16 of the 1789 Declaration, and Article 66 of the Constitution.
The possibility for seals to guide the conduct of public action, and thus, for example, To promote more or less serious qualifications of consequences, such as those contained in Article 706-73 new, and to apply for the judgment of a particular case in accordance with the procedure for appearance on prior recognition of Guilt, allows it to interfere directly in the conduct of the criminal trial.
Everyone measures the extent to which this interference of executive power in the conduct, not of a public policy under article 20 of the Constitution, But the criminal trial of individuals reverses the logic of our democratic system. A Minister will therefore be able to directly influence the assessment of individual misconduct by the judicial authority, including after having contributed to the choice of a procedure for freedoms. The example is simple: the instruction to choose an organized crime qualification will lead to the application of the extended-view regime, the sound of private homes, night-time searches ...
Neither the security nor the The guarantee of rights cannot then be regarded as insured. The separation of powers is no longer determined.
It is also necessary to question the risk to the principle of equality before the law of such political participation in the criminal trial.
Such power, which is part of an evolution if Of our criminal procedure, cannot be constitutionally valid.
III. -Article 137 of the Law
This Article creates a section 8 in Chapter I of Title II of Book II of the Code of Criminal Procedure, Articles 495-7 and following, organising the appearance on prior recognition of Guilt. This so-called " procedure of the Plead guilty " Gives the power to the prosecutor of the Republic to propose to the person prosecuted for an offence punishable by five years to the most prison a sanction which will be approved by a judge of the seat. If this procedure takes place in the presence of counsel for the accused, it shall take place without any publicity. Only the reading of the possible approval order is public. As for the identified victim, it is called only at the stage of certification to assert its civil interests.
Such a procedure disregards the right to a fair trial, the principle of presumption of innocence and equality before the courts. Justice.
III-1. On the ignorance of the right to a fair trial:
Faced with a mechanism of the same nature but of a much lesser extent, you have judged it " That under Article 9 of the Declaration of Human and Citizen's Rights, any man shall be presumed Innocent until proven guilty; that under article 66 of the Constitution, the judicial authority is the guardian of individual liberty; that the principle of respect for the rights of the defence is one of the principles Fundamental principles recognised by the laws of the Republic reaffirmed by the Preamble of the 1946 Constitution, to which the Preamble of the 1958 Constitution refers; that it implies, in particular in criminal matters, the existence of a fair procedure and Fair guaranteeing the balance of the rights of the parties; that, in the case of offences and crimes, the separation of the authorities responsible for public action and the authorities of judgments contributes to the safeguarding of individual freedom " (Decision No. 95-360 DC of 2 February 1995).
(i) In the present case, the procedure criticised puts in the hand of the prosecuting authority the possibility of proposing the penalty of imprisonment and/or fine. The principle of separation of the authorities responsible for public action and the authorities for judgment is violated. It is important to note that this phase of the procedure is not public. In this respect, the presence of the lawyer cannot be sufficient to counterbalance the confusion of the powers entrusted to the public prosecutor.
The right to a fair trial, which includes the equality of arms, cannot be satisfied with a procedural phase in the Where the person being prosecuted will be in a situation of real pressure under the threat of placement in remand or under judicial supervision, or an aggravation of the penalty in case of refusal of the proposal Prosecutor. The assistance of the lawyer, if necessary, is not sufficient in such a situation.
This lack of knowledge of the guiding principles of the criminal trial, which concerns about half of the offences under the Criminal Code, is Less acceptable as the Public Prosecutor's Office is placed under the strengthened authority of the Minister of Justice and Prosecutors General, as provided for in Articles 63 and 64 of this Law. At the same time, as has already been said, the guarantees of independence of the magistrates of the public prosecutor's office have remained frozen and the constitutional revision adopted in the same terms by the two assemblies for this purpose is still pending Calling the Congress.
In other words, the hierarchical power of the public prosecutor is increased for in the same movement to increase its powers by breaking the principle of separation of prosecuting authorities and the authorities of judgment
Such a development disregards the right to a fair trial, as constitutionally guaranteed.
It is in vain to object to this lack of knowledge of fundamental rights the competence of approval granted to a judge of the seat. Firstly, the fact that this procedural phase later interferes with the unity of the criminal trial and does not restore any balance. Then, and this point is worthy of further development, the approval takes place in the board of the board, or without advertising. The point of view of the right to a fair trial is a serious problem.
(ii) Another unbearable attack on the right to a fair trial stems from the lack of publicity of the debates preceding the approval.
The rights of the defence It does not sum up to the presence of the lawyer and, in response to Article 6 of the European Convention on Human Rights, requires that the procedure be public. This is a guarantee of the independence and impartiality of the court which pronounces the sanction, a guarantee against the pressure that an accused could face and that the presence of the lawyer would not be sufficient to overcome so much, a Guarantee of the equality of arms, a guarantee also for society that justice is the same for all.
Once again, the strengthening of the hierarchical power of the public prosecutor's office makes it more unacceptable to implement a
By making justice on behalf of the sovereign people, the judicial authority also does so under its gaze. It is the separation of powers in the same sense that Article 16 of the 1789 Declaration gives it.
To free it would be to bring justice to suspicion and the Republican pact to the storm.
No one could admit that only reading In the light of these principles, which are so essential to a democratic society, a measure which will respect the principle of advertising at the heart of the right to a fair
. On the principle of the presumption of innocence:
Article 9 of the 1789 Declaration guarantees the presumption of innocence. This principle of constitutional validity is, in the end, a rule of procedure requiring the prosecuting authority to prove the guilt of the person involved. Its link to the equality of arms in the criminal trial is obvious.
This is how you have validated certain provisions of the Treaty establishing the International Criminal Court by considering that " The accused is guaranteed not to Be imposed on the reversal of the burden of proof or the burden of rebuttal to deduce from it that the requirements deriving from Article 9 of the Declaration are met." (Decision No. 98-408 DC).
It infers that The person prosecuted cannot be placed in a position to accuse himself, but only to recognise the facts previously proved by the prosecuting authority. This presupposes that the conditions of the procedure are balanced in order to overcome any culpability that is too broad or too sudden to avoid an excessively heavy sanction.
Or, the criticised system introduces more Presumption of guilt that a development of the presumption of innocence. Above all, the conditions of the proceedings, including the lack of publicity of the proceedings and the absence of the victim in the first phase of the appearance, remove any consistency in the administration of the criminal
. On the lack of awareness of the principle of equality before the law of equality before the law:
The principle of equality before the courts, which you have consecrated on many occasions, is not well known from a threefold point of view. First, with respect to the persons being prosecuted for the same facts. Secondly, as regards the victims of the offences. Finally, in the eyes of society as a whole.
(i) The principle of equality before the courts requires that everyone who is tried for the same facts should be treated under the same conditions. However, by organising a non-advertising procedure, for the main part of the trial, there is no guarantee that the proposals for punishment will be made on an objective and rational basis.
(ii) As you have tried, the right to a fair trial and the The principle of equality before the courts requires that the parties to the criminal trial be treated in a balanced manner. In this case, this is not possible when the victim will be excluded from the phase during which the materiality of the facts and the guilt of the person being prosecuted will be established.
Design that this first phase of the criminal trial can be In the absence of the victim, in addition to revealing a serious lack of knowledge of the judicial reality, clashes with the equality of the parties and prevents the principle of the contradiction which is at the heart of the rights of the defence being fulfilled by its Office. The truth cannot find its account any more than social peace.
The arrival of the identified victim, which makes it possible to question those who are not, at the stage of approval cannot compensate for his absence during the crucial phase of the Where the facts and their scope will be admitted or challenged.
It is necessary to consider the proposal for a sanction in the absence of the victim and thus the impossibility of measuring the reality of the damage suffered by it, taken in all its
This constitutes an obstacle to the manifestation of the truth and can, paradoxically, thwart the principle of the presumption of innocence which, at times, can benefit from the light of the Victim.
This is an unprecedented step backwards in terms of victim rights.
(iii) Finally, equality before the law is a requirement for society as a whole. Trust in the judicial institution is also based on the certainty that justice will be equal for all. The necessity and proportionality of the sentences, the taking into account of the personality of the person in question are all elements that can lead to different decisions.
But these still unique court decisions are acceptable as Placed under the gaze of the sovereign people. In the words of our British friends, it is not enough for justice to be done, we still have to feel that it has been done.
A half-secret procedure that does not exclude pressure on certain people Continued or benevolence for others, the delayed presence of the victim, the increased weight of the hierarchical authority of the Minister of Justice and of the Attorneys General on the prosecutors invested with these new powers are not To satisfy the principle of equality before justice.
Its claim is at all times. Today, more than ever, it must be heard.
Of all these leaders, censorship is incurred.
IV. -Article 48 of the law
This article establishes an automated national court file of perpetrators of sexual offences, including minors, with constraints to be respected under the control of the police authorities
The authors of the referral can only agree with the use of means to prevent sexual offences and have, in their time, acted in that direction.
Nevertheless, in this case, this mechanism Disregards Article 8 of the 1789 Declaration and the fundamental principle recognized by the laws of the Republic of Speciality of the Law of Minors and the Right to Privacy. In particular, the obvious disproportionality between the chosen regime and the constraints on individual liberty are constitutionally unacceptable.
(i) The registration of minors in such a file for more than ten years violates the principle In your decision of 29 August 2002, and in particular the idea of an educational measure to facilitate social reintegration and the construction of its personality. The ensuing stigma will certainly be destructive. It can last for two or three decades.
(ii) The apparent disproportion is characterized as soon as the convicted persons are obliged to point twice a year to the police or gendarmerie department in their department. Justify his address. This measure confpurposes the sentence imposed and the penalty imposed. In other words, will be fictitious the person not according to the sentence imposed but according to the theoretical sanction that it has incurred.
The absence of necessity within the meaning of Article 8 of the 1789 Declaration is blatantly obvious.
(iii) The crossing of the said Files used by the criticised articles going beyond the police and gendarmerie authorities, thus including administrations, have a disproportionate impact on the privacy of each individual
Censorship is incurred.
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We ask you to believe, Mr. Chairman, members of the Constitutional Council, to the expression of our high regard.
(List of signatories: see decision No. 2004-492 DC.)
