Key Benefits:
The Constitutional Council has been entered, by more than 60 Members of Parliament and over sixty senators, of two appeals against the law adapting justice to the evolutions of crime, adopted on 11 February 2004.
The applicants are acting against the law, in particular its Articles 1, 14, 48, 63 and 137, various complaints which, on the part of the Government, require the following observations.
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I. -Articles 1 and 14
A. -Article 1 of the Act referred to in the Code of Criminal Procedure a Title XXV on the procedure applicable to organised crime and delinquency, the provisions of which govern the procedure applicable to the investigation, the prosecution, The investigation and judgement of fifteen particularly serious offences. These provisions define, in particular, the legal framework applicable to the supervision of persons suspected of having committed one of the offences under consideration, the infiltration operations, the police custody, the searches, the interceptions of Correspondence issued by means of telecommunications, sonorisations and image fixations of certain places and vehicles.
Article 14, in particular, amends the provisions of Article 63-4 of the Code of Criminal Procedure on The maintenance with the lawyer during police custody, supervises the application of Article 706-88 of the Code of Criminal Procedure on custody to minors over the age of sixteen and amends Article 76 of the Code of Criminal Procedure on the Searches.
The applicants criticise, in the first instance, the scope of those provisions, arguing that the concept of an infringement in ' Organized band " That the legislator would be imprecise, that it would be By the judicial police officers and by the public prosecutor and not by the judges of the seat, that there would be no consistency between the 15 infringements concerned, that improper use of the proceedings in question would not be punished by Nullities of procedure. According to them, the provisions adopted by the legislature would disregard the terms of Article 8 of the Declaration of Human and Citizens' Rights on the legality and necessity of
. The provisions on police custody, arguing that a four-day period would be excessive in the light of Article 8 of the Declaration on Human and Citizens' Rights and the constitutional protection of individual liberty, The conditions for the extension of the custody order would be imprecise, that the postponement of the presence of the lawyer in the course of custody would deprive of legal guarantees of the constitutional requirements, that the provisions relating to custody in sight Minors over the age of sixteen would be unaware of the fundamental principle recognised by the laws of the Republic relating to the special criminal law of minors.
The striking Members support, in the third place, that the provisions concerning Searches would involve excessive interference with individual freedom and the inviolability of the home, due to the lengthening of the duration of the investigation, the removal of the consent of the person in the course of the investigation
two remedies criticize, in the fourth place, the provisions relating to interceptions of correspondence, sonorisations and fixations Of images, arguing that they would be contrary to Article 2 of the Declaration of Human and Citizen Rights, Article 66 of the Constitution and the constitutional protection of the right to respect for private life and The inviolability of the home.
Finally, the applicants submit that Article 706-104 introduced to the Code of Criminal Procedure by the law referred to would preclude any invalidity in cases of abuse and misuse of procedure, which Would be likely to result in a serious attack on constitutionally protected rights and freedoms.
B.-These various grievances call on the Government the following responses.
1. As regards, first of all, the scope of the contested provisions, it is true that the legislature cannot determine special rules with regard to the prosecution, investigation and judgment of certain infringements. Condition that these offences be defined in sufficiently clear and precise terms so as to satisfy the requirements of the constitutional principle of the legality of offences and penalties (Decision No. 86-213 DC of 3 September 1986). It is also appropriate that the choice of the legislator, when determining the list of offences subject to more binding rules of prosecution and proceedings than those of the common law, does not appear to be vitiated by manifest disproportion (decision N ° 96-377 DC of 16 July 1996).
But, in the present case, the Government considers that the legislator has defined, with sufficient precision, the offences covered by Title XXV added to Book IV of the Code of Criminal Procedure by the law referred to and that The list of such offences is not manifestly incorrect.
a) The new Articles 706-73 and 706-74 of the Code of Criminal Procedure determine the scope of offences constituting organised crime by distinguishing between two categories of offences : for the first category of the most serious forms of organised crime and delinquency, referred to in Article 706-73, the law on the one hand allows for the implementation of new means of investigation and, on the other, provides for the Jurisdiction of specialised courts in the field of crime and organised crime; for the second category, referred to in Article 706-74, which concerns lesser offences, the new means of investigation shall not be Applicable, but the law provided that these offences could fall within the competence of the specialised courts, taking into account the complexity of the offences and the specific judicial treatment to be applied to
. The law is thus to apprehend organised crime as such by giving it a clearly defined scope of application and by implementing procedural instruments adapted to the fight against this form of crime. In fact, it is known that it often involves a particular dangerousness of offenders or criminals, who are in some way " Professional ", and that it is more difficult to achieve the manifestation of truth because of the particular The complexity of the facts, the difficulties in identifying the various protagonists and the assessment of their respective roles.
To combat these new forms of crime, which are experiencing a large increase, the legislator has found that The need to entrust, under the effective supervision of the judicial authority, more investigative powers to investigators (four-day custody, infiltration, short telephone tapping or sonorisations during the investigation, Searches for preliminary investigations and, in certain cases, night searches, and to set up specialised courts to deal with these offences committed by extremely organised criminal groups. It can be noted that the legislator thus implements guidelines which have been decided at international level, in particular by the United Nations Convention on Transnational Organised Crime, signed in Palermo on 15 November 2000, or in the plan European Council, in particular by the Tampere European Council in 1999.
b) In determining the list of infringements of Article 706-73 and using the concept of ' Organised band ", the legislator has, contrary to what is supported, defined with Sufficiently precise the scope of the new investigative powers.
This notion of " Organized band " Has not, in fact, been specifically enacted for the occasion. It has been in the Penal Code since 1981 and its use has been continuously expanding since then. In a sign of the importance attached by the legislator to the fight against organised crime, the commission of an organised crime is at the top of the aggravating circumstances defined by the Criminal Code which entered into force on 1 March 1994
Article 132-71 of the Penal Code provides that " Shall constitute an organised band or any agreement established for the preparation, characterised by one or more material facts, one or more infringements ". As stated in the doctrine (see in particular J. Pradel, Manuel de droit pénal, l4th ed., 2002-2003, No. 460; H. Angevin, Jurisclasseur Penal, 2000, No. 25 to 36; F. Desportes and F. Le Gunehec, Traité de droit pénal, 10th Edition, No. 890), the circumstance Aggravated by the aggravating circumstance of a meeting in that it implies not only that the offence has been committed by more than one person, but still requires that these persons have a premeditated combination thereof and Materially prepared. It is thus required that the members of the organised band have taken the resolution to act jointly within the framework of an organisation comprising, for example, a distribution of the roles or the existence of material resources for the commission of The offence.
Organized gang is an aggravating circumstance that increases the penalty for the person committing the aggravated offence. The Criminal Code of 1994 provides for this aggravating circumstance for drug trafficking (art. 222-35 and 222-36), pimping (art. 225-8), flight (art. 311-9), extortion (art. 312-6), the scam (art. 312-2 [5 °]), recel (art. 312-2), destruction (art. 322-8), abduction and sequestration (art. 224-3) and counterfeit currency (art. 442-2). The Act of 13 May 1996 introduced to article 324-2 of the Criminal Code the offence of money-laundering committed in organised crime. The laws of 11 May 1998 and 18 March 2003 added a specific repression, appearing today, since the Act of 26 November 2003, in Article 21a of the Order of 2 November 1945, for offences of direct or indirect assistance to the entry, the Irregular movement or residence when committed in an organized band.
Thus, the concept of " Organized band " Used by the law referred to is not new but corresponds, on the contrary, to a pre-existing and precise criminal definition. In this respect, it is of little importance that the concept was primarily used as an aggravating circumstance and not to allow for the implementation of the specific procedural
. Specific procedural consequences attach to the aggravating circumstance of the " Organized band " And that the Constitutional Council has not held that such use of this concept would be contrary to the Constitution (Decision No. 93-326 DC of 11 August 1993). Thus, the concept already determines, in certain cases, the application of a stricter guard regime provided for in Article 64 (3) of the Code of Criminal Procedure, referring to Articles 224-3 (abduction and sequestration in organised band), 225-8 (procuring), 311-9 (theft), 322-8 (degradation or explosion) of the Penal Code. These articles also provide that the maintenance with the lawyer normally provided for at the beginning of custody will only be able to intervene, for these offences, after a period of 36 hours. Article 145-1 of the Code of Criminal Procedure still provides that, in matters relating to tort, the duration of pre-trial detention shall be extended to 2 years when the person is prosecuted for an offence committed in an organised band and is liable to punishment 10 years of imprisonment. Article 145-2, inserted in the Code of Criminal Procedure by the law of 15 June 2000, states that a person under investigation may be held in pre-trial detention for a period of four years when the person is prosecuted for a crime Organised band.
(c) In view of the seriousness and complexity of the offences referred to in the new Article 706-73 of the Code of Criminal Procedure, the legislator was able, without manifest disproportion, to allow the use of powers The
offences listed by the legislator are all of a very serious nature. They are, when they are committed in organised band, murders, torture and acts of barbarism, kidnappings and forcible confinement, criminal theft, destruction, degradations or criminal deterioration of property, of criminal offences. Of arms, ammunition, powders, explosive substances and biological weapons, offences of aiding the unauthorised entry, movement and residence of foreigners in France. They are also certain crimes and crimes of drug trafficking, trafficking in human beings, pimping, aggravated crimes of extortion, crimes in the field of counterfeit money, crimes and offences of terrorism, money laundering offences, or Of criminal association to commit any of the offences in question.
These offences, for their most part, are designed to deal with very serious offences against persons. They are all punished by at least 10 years' imprisonment. For the most part, they are a criminal qualification. The inclusion of many of them in the list of Article 706-73 does not appear to be seriously questionable and is not disputed. For some of them, however, it is important to provide the following details.
Organized crime is a crime under Article 311-9 of the Criminal Code. It is punishable by 15 years' imprisonment, 20 years when it is preceded, accompanied or followed by violence on another, 30 years when it is committed with the use or threat of a weapon, by a person carrying a weapon subject to authorisation or whose Port is prohibited. Since the Act of 2 February 1981, the legislator has always counted this offence among the most serious by providing in particular, by the Act of 24 August 1993 declared to be in conformity with the Constitution on this point (Decision No. 93-326 DC of 11 August 1993), that The intervention of the lawyer in police custody is deferred to the 36th hour for all flights in organized band. Similarly, article 145-2 of the Code of Criminal Procedure, as a result of the Act of 15 June 2000 strengthening the presumption of innocence, brings the maximum duration of pre-trial detention for all crimes committed in organized bands to 4 years, including that of In the first paragraph of Article 311-9.
In practice, the first paragraph of Article 311-9 allows for the prosecution of two types of offences: on the one hand, organized criminal gangs who, without necessarily resorting to violence, Commit large flights of high-value objects, in particular art objects, particularly in museums, castles or places of worship; on the other hand, persons who commit flights within an organized band, including some Members who use violence or bear arms, but who have not themselves committed violence or used a weapon, and against whom it does not appear possible to extend the aggravating circumstances of a weapon or violence applicable to Their co-authors or accomplices. The other paragraphs of article 311-9 permit, in judicial practice, the dismantling of the criminal activities of armed robbery professionals.
Organised extortion is punishable under Article 312-6 of the 20-year criminal code. Imprisonment, 30 years when preceded, accompanied or followed by violence on another person, life imprisonment when committed or with the threat or use of a weapon, or by a person carrying a weapon submitted Or the port of which is prohibited. This aggravating circumstance of extortion was introduced by the Criminal Code of 1994 and it is also provided for in this matter that the lawyer will only be able to speak with his client at the end of the 36th hour of police custody (art. 63-4 of the Code of Criminal Procedure). Article
-8 of the Criminal Code punishes 20 years of criminal imprisonment, when committed in organized band, the destruction, degradation or deterioration of a property belonging to another by the effect of a Explosive substance, fire or other means of nature to create a hazard to persons. It was the law of 10 June 1983 which extended the aggravating circumstance of the previously organised band for the sole flight to this type of offence. The Act of 1 February 1994 provided that the detainees in these cases will not be able to speak with a lawyer until the end of the 36th hour (art. 63-4 of the Code of Criminal Procedure). The damage and destruction referred to in this article are not all offences of destruction and degradation, but only those that present a danger to persons, as the title of the section of the Penal Code indicates in Which the item is inserted. The legislator has thus targeted only the most serious destruction and degradation in the framework of a concerted criminal organisation.
Article 21a of the Order of 2 November 1945, as amended by Act No. 2003-1119 of 26 November 2003, a 10-year sentence of imprisonment for the offence of aiding the entry, movement, irregular stay of a foreigner in France when committed in an organised band. This infringement, having regard to the terms which define it, does not, of course, apply to associations whose object would be to facilitate the integration of foreigners in France but intends to repress the unlawful actions of organised networks of smugglers. This offence of foreign aid in an irregular situation committed with the aggravating circumstance of an organised gang carrying the penalty of 10 years' imprisonment was established by the law of 11 May 1998. It can be noted that Article 21 of the Ordinance of 2 November 1945 was supplemented by the Act of 26 November 2003 to clarify that the offence of foreign aid in unlawful residence could not be charged to a natural or legal person when the act Was, in the face of present or imminent danger, necessary for the safeguarding of the life or physical integrity of the alien, unless there is a disproportion between the means employed and the seriousness of the threat or if it has given rise to a counterparty Direct or indirect. This points out that only the networks of smugglers are liable to be covered by the provisions of the new Article 706-73 of the Code of Criminal Procedure.
In any event, it will be for the judge of the registered office to authorise or Refusing, by reasoned decision, the use of the means of investigation adapted to the characteristics of the infringements referred to in Article 706-73, to verify, beyond the adequacy of the legal classification, by general nature, applicable to the facts Purpose of the procedure, if those facts effectively present in the present case a particular complexity and a particular gravity justifying the use of such means, in accordance with the principles of necessity and proportionality recalled by the article Preliminary criminal procedure code.
2. As regards, second, the nullity of proceedings, the references are based on the provisions of the new Article 706-104 of the Code of Criminal Procedure in order to argue that the misuse of the means of investigation provided for by the provisions
, it is not within the scope of this Article 706-104, which merely states that the mere fact that the aggravating circumstance of a band at the end of the procedure Proceedings will not ultimately result in the nullity of the acts regularly performed in the course of the prosecution or the investigation. This Article has no purpose or effect of failure to apply the general theory of nullity in the procedure of Articles 171, 385 and 802 of the Code of Criminal Procedure.
In fact, the methods for implementing the measures Of the specific investigation defined by the law referred to meet the requirements of form which are provided for by the law only for a declaration of invalidity. If it turns out that the initial qualification, which determines the applicable legal regime, cannot be maintained at the end of the investigations, it is then necessary, in accordance with the general rules, to distinguish two radically different hypotheses: or There were, in fact, the grounds for suspecting the existence of an offence falling within the list of Article 706-73, or it was made use of the new procedural provisions in the absence of any element enabling the Justify use. In the first case, no nullity will be incurred to the extent that, at the outset, the conditions for the use of those procedures were objectively met. In the second case, on the other hand, which marks the misuse of the means of investigation and reflects a misuse of proceedings, the acts will be annulled in application of the general theory of nullities of procedure, without hindrance Article 706-104 introduces the Code of Criminal Procedure.
This Article 706-104 merely echoes the settled case-law of the Court of Cassation according to which the regularity of an act must be assessed in the light of the circumstances Existing at the time of realization. Thus an explosion investigation-giving rise to a search-is possible if there are objective and apparent indications that the facts constitute an offence punishable by imprisonment, even if these facts are then pursued under a qualification Contraventional (Crimea. 9 January 1990, Bull. Scream. 16; 11 March 1992; Bull. Scream. No. 110). Similarly, the fact that the examining magistrate refers a person who had been brought before the court for a criminal offence does not affect the regularity of the pre-trial detention during the trial, including the duration of the trial, Those applicable in criminal matters, since there were many serious or concordant clues to reproach the person for the commission of a crime.
But the legality of the acts presupposes, as Article 706-104 expressly states, That they were " Regularly " Which means, in particular, that at the time of their fulfilment the aggravating circumstance of an organised band appeared to be characterised or, in order to use the terms used by the Court of Cassation in Similar domains (Crim. 2 February 1988, Bull. Scream. 52) that the apparent clues revealed the existence of this aggravating circumstance.
Such a clarification was also included in the Government's draft, and it was not deleted at first reading by the National Assembly On the grounds that it appeared legally unnecessary (see the report of the Law Commission of the National Assembly, p. (85).
It follows that if the acts provided for in the new provisions are carried out in a proceeding, whereas at the time when they are carried out there is no evidence to suggest that the facts have been committed in organised band, Acts will then be annulled by application of the general rules for invalidity. Article 706-104 only clarifies the applicable law in order to avoid unnecessary litigation before the courts in cases where, in the interest of the person being prosecuted and the proper functioning of the courts, objectively of nature In the case of their organized band commission-which most often as a consequence of classifying a crime as a crime-would ultimately be correctionalized and referred to the court rather than to the court Foundation. On the other hand, this article does not fail to sanction the embezzlement that would be constituted if the new provisions were applied in cases where there were no elements to presume the existence of a band
3. As regards, in the third place, police custody, the new Article 706-88 of the Code of Criminal Procedure provides, for the most serious offences of organised crime and delinquency which are exhaustively listed in Article 706-73, that The outcome of two-day joint custody (the 24-hour initial period having been extended by a magistrate for 24 hours), a judge of the seat-the judge of the freedoms and the detention or the examining magistrate-may decide to authorise one or more Two new 24-hour extensions or a new 48-hour extension.
The purpose of these provisions is to increase the effectiveness of judicial investigations-in the course of the investigation or investigation-by extending to others Offences " Organized " The possibility, already provided for in the field of drug trafficking or terrorism, of placing a person in police custody for 4 days. This increase appears to be justified by the seriousness of the offences under consideration and the complexity of investigations into organised crime networks. In fact, the extension of police custody beyond two days is now mainly used in cases where investigators have arrested one or more alleged perpetrators of the offence, but co-authors or accomplices are still on the run
a) In view of the seriousness of the offences under consideration and the conditions laid down by the legislator, the maximum duration of 4 days is not excessive.
It should be noted, first, that the provisions in force of the Code of Criminal Procedure already provide for the possibility of 4-day guards for drug trafficking (since the law of 31 December 1970) and in the field of terrorism (since the Act of 9 September 1986). The legislation, however, strengthens the safeguards of the persons involved in these offences by stating that the extension of custody is only possible on an exceptional basis, providing that the extension must be ordered by decision On the grounds of the judge and by limiting in principle to 24 hours the duration of each extension.
For the other offences referred to in Article 706-73, it is true that the new provisions have the effect of allowing the extension of the police custody Up to 4 days, whereas its duration is currently limited to 2 days. However, this is a maximum period which can only be achieved by the effect of successive decisions by members of the judicial authority. The initial 24-hour detention, decided by a judicial police officer, can thus be extended by 24 hours by the public prosecutor or the investigating judge, then again for two periods of 24 hours by the judge of the freedoms And the holding or investigating judge, exceptionally for a period of 48 hours if the foreseeable duration of the investigations still to be carried out justifies it. In this regard, it can be pointed out that the procedures for drug trafficking have been the subject of 24,746 security guards in 2003, that only 12,339 of them have been extended beyond 24 hours and that can be estimated at Less than 15 % those that have been extended beyond 48 hours.
Second, the safeguards enacted by the legislature to prevent the length of police custody in excess of what is necessary for the purposes of the investigation or Statement. The legislature expressly stated that the extension of police custody can only take place on an exceptional basis for the necessities of the investigation or the investigation and that it is decided by judges; in particular, it provided for the intervention of the A judge of liberty and detention. As far as the investigation is concerned, it should be noted that the extension presupposes that the investigators ask the prosecutor of the Republic and that the latter is convinced of his need to seize the judge of freedoms and detention: the agreement of two Magistrates of the Prosecutor's Office and the seat are thus necessary. The extension must be the subject of a written and reasoned decision in relation to the needs of the investigation or inquiry: in the case of an extension of 48 hours, the statement of reasons must therefore specifically specify the investigations that the investigators have The intention to do so during this period. The decision to extend shall not be taken, without any derogation, until after the person has appeared before the judge of liberty and detention or the investigating judge. Finally, the person is assured of being examined by a physician-even if not requested-in order to verify his/her ability to keep in custody, and is advised of his/her right to request a new medical
. Article 706-88 of the Code of Criminal Procedure does not expressly state that-not more than the current Articles 63 et seq. For the common law guard and the current Articles 706-23 and 706-29 in the field of terrorism or Drugs-these guarantees are, by their very nature, only invalid in accordance with the general provisions of Article 802 of the Code of Criminal Procedure. This is in fact substantial formalities, the non-compliance of which necessarily affects the interests of the person being prosecuted, for example, the obligation to extend by a magistrate after a certain period of time (Crim. 15 December 1999, Bull. Scream. No. 311; Crim. 13 February 1996, Bull. Scream. N ° 74), of the extension without prior presentation (Crim. 9 May 2001, Bull. Scream. 115), or the right to interview with the lawyer (Crim. 10 May 2001, Bull. Scream. No. 118).
(b) With regard to the intervention of the lawyer, the law in question now organises three different regimes: the first provides for the intervention of the lawyer at the 1st hour of on-call duty, then on the 24th hour, at the 48th hour and at the 72nd hour; the The second provides for two interventions, at the 48th hour and then at the 72nd hour; the third, for the cases of terrorism and drug trafficking, only provides for intervention at the 72nd hour.
It should be noted that the cases for which the intervention Of the lawyer was scheduled as soon as the first hour of custody was not changed. In addition, in certain cases where the intervention of the lawyer took place at the 36th hour, the law decided to move this intervention forward to the first hour (for the destruction, degradation and deterioration in organized bands, for the association of Criminal offences for the commission of non-Article 706-73 offences and the extortion of aggravated funds. In the case of terrorism or drug trafficking, the intervention of the lawyer remains at the 72nd hour without change from the law in force. It is only for offences of gang abduction, aggravated pimping, organised robbery, gang extortion, or death or association of criminals for offences referred to in Article 706-73 The law referred to the intervention of the lawyer from the 36th hour to the 48th hour. In making these limited arrangements for reasons consistent with the procedures, the legislature has not denied legal guarantees of constitutional requirements.
It must also be noted that the person has, in any event, the The right to ask to speak with a lawyer from the beginning of the exceptional extension of custody after 48 hours and will be able to speak again with a lawyer at the 72nd hour. These rights are expressly notified to it after the extension. It is only in relation to terrorism and drug trafficking that, as has been the case since the Act of 1 February 1994, declared on this point in conformity with the Constitution (Decision No. 93-334 DC of 20 January 1994), the meeting with the lawyer will have
c) Finally, the custody of minors between the ages of 16 and 18 is the subject of special provisions introduced in Article 4 of the Ordinance of 2 February 1945 by the VI of Article 14 of the Act referred to. Contrary to what is supported, these special provisions limit the scope of custody for minors and implement, in this respect, the fundamental principle recognized by the laws of the Republic relating to juvenile justice (Decision 2002-461 DC of 29 August 2002).
It should be borne in mind that, in general, the provisions of the Code of Criminal Procedure are applicable to minors as well as adults, unless the order of 2 February 1945 provides otherwise for To avoid the application of such a provision, or to establish the conditions of application in respect of minors. With regard to police custody, the special provisions set out in Article 4 of the Ordinance of 2 February 1945 specify that minors under the age of 13 may not be placed in police custody, that minors who are at least 13 years of age can do so The object of a police custody but that they are entitled to a lawyer from the beginning of the police custody, that the extension of the custody order requires the presentation before the competent judge, that the hearings must be recorded. Under the current law, minors over the age of 13 may not be subject to a custody order that can be extended for 4 days, except for drug trafficking.
The VI of Article 14 of the Act is complete Section 4 of the 1945 Order. Its paragraph VII certainly provides that a 4-day police guard may be applied to minors, in addition to the single case of drug trafficking, for the most serious crime and organised crime offences. The lawyer will intervene at the beginning of custody, and then every 24 hours. However, the law specifies that this 4-day custody order can only concern minors over the age of 16, provided that there are one or more plausible reasons for suspecting that one or more major persons participated as authors Or complicit in the commission of the offence. If no clarification had been provided by the law, the provisions of Article 706-88 of the Code of Criminal Procedure would have been applicable to minors over 13 years of age without restrictions: they would have concerned minors aged between 13 and 16, as well as Minors heard in cases not involving major persons. In any case, it should be stressed that the possibility of keeping a minor over the age of 16, decided by the competent judge for 4 days, will only be used in a very exceptional way, in cases where the particular case is justified. Danger of the minor or the absolute necessity to continue the investigation for another day or two.
Lastly, it must be pointed out that the condition relating to the participation of the major in the commission of the offence does not reflect a violation of the principle Equality before the law. The fact that adults are involved in criminal or criminal behaviour leads, in fact, to acts of greater gravity and dangerousness. There is, in fact, a significant increase in the number of cases of terrorism or drug trafficking, in which gangs of criminals headed by adults use minors to prepare the commission for offences. Such actions are objectively not of the same nature as conduct involving only minors. This objective difference of situation justifies the difference in treatment instituted by the legislator.
On the one hand, it is possible to add that the general interest in the conduct of investigations and the protection of minors Reprisals which may emanate from the major involved may plead for exceptional extensions of custody to allow the arrest of the co-authors or accomplices. On the other hand, it can be pointed out that the criminal procedure already has hypotheses in which the fact that minors or minors are involved, or only minors, has different legal consequences. Thus, in the case of a case requiring, after the investigation, the prosecution of investigations under the supervision of a judge of the seat, this will lead to the seizure of an investigating magistrate, whereas if the facts had been committed only by minors The information could be entrusted to the juvenile judge.
4. As regards, in the fourth place, the searches, the law referred to has increased the coherence of the current rules which, as a result of the numerous reforms that have taken place in recent years, have become parlically complex, without Always reconcile the exercise of constitutionally guaranteed freedoms with the objective of constitutional value in the search for offenders.
The new provisions amend the general rules Applicable to day searches as part of the Common Law of Investigation and Preliminary Investigation procedures. On the other hand, and above all, they are intended to unify the regime of night searches in respect of organised crime and delinquency offences referred to in Article 706-73 of the Code of Criminal Procedure, extending to all of these Infringements of the current rules on terrorism, drug trafficking and breaches of the arms legislation. These amendments are made by sections 1, 14 and 77 of the Act; they have permitted the repeal, by section 14 of the Act, of all or part of the existing sections 76-1, 706-24, 706-24-1 and 706-28 of the Code of Criminal
. Changes of general scope-that is, that are not limited to the organized crime or delinquency offences under section 706-73 of the rules relating to day searches that may occur without the consent of the The person is the result of the amendment of Article 76 of the Code of Criminal Procedure on the preliminary investigation and the amendment of Article 53 of the same Code relating to the investigation of the explosion, which is the result of Articles 14 and 77 of the
Contrary to what is being argued, these amendments do not unduly infringe the constitutionally guaranteed rights.
First, it must be noted that the execution of a search without the consent of the An interested person is subject to a reasoned decision of the judge of liberty and detention and is subject to conditions laid down strictly by law. Thus, article 76 of the Code of Criminal Procedure in its drafting of the law states that it is for the judge of liberty and detention, seized by the prosecutor of the Republic, to allow a search to be carried out Without the consent of the person concerned, provided that either a crime or an offence is punishable by at least five years' imprisonment-which, moreover, reflects an additional requirement in relation to the current condition Article 76-1 of the Code of Criminal Procedure for Offences on Arms, some of which are punishable by only three years' imprisonment. The substantive and procedural requirements placed on this authorisation for annulment of the proceedings are the same as those laid down in Articles 706-92 and 706-93 for night searches.
It can be observed that this amendment has as its Objective of avoiding the opening of information for the sole purpose of proceeding on a rogatory commission to a search of a person who refuses to give his assent to such an operation and offers greater guarantees than Those that prevail in the information framework. If in both cases the search cannot be carried out only with the authorization of a judge of the seat, that provided for in the last paragraph of Article 76 requires a reasoned authorisation in fact and in law and in respect of a particular place where Letters rogatory are not motivated and do not have to specify each location in which investigators will be permitted to search.
Second, it should be noted that the possibility of extending the duration of the investigation Is not a break in the recent evolution of the criminal procedure. Until the law of 23 June 1999, the maximum duration of the blast investigation was not limited by the law, and it was felt, in the absence of case law, that an investigation could last from one to two weeks depending on the seriousness of the facts. The law of 23 June 1999 set the maximum duration of the investigation of the blast at eight days. Today, the law allows the prosecutor of the Republic to decide on an extension of the investigation for 8 days-a total of 16 days-but under the conditions that it is a crime or an offence punishable by at least 5 years And that the investigations necessary for the manifestation of the truth cannot be postponed. These conditions are prescribed only if the procedure is invalid.
In the light of these clarifications, the amendments made by the legislator on the day search regime do not ignore any constitutional provisions and do not Not, having regard to the limits imposed and the rules laid down, excessive infringement of constitutionally protected rights.
(b) The special rules applicable to night searches for offences of crime and delinquency For their part, are laid down in the new Articles 706-89 to 706-93 of the Code of Criminal Procedure. Articles 706-89, 706-90 and 706-91 deal successively with the hypotheses of the investigation of the explosion, the preliminary investigation and the investigation, by restricting the possibilities of searches according to the procedural framework concerned, To comply strictly with the constitutional requirements (see in particular Decision No. 96-377 DC of 16 July 1996). Articles 706-92 and 706-93 also provide for common guarantees applicable in all three cases. In view of the guarantees provided by the legislator, the new provisions will be deemed to be in conformity with the Constitution.
In all cases, night searches are only possible " Whether the needs of the inquiry or inquiry ", that is, if it is not possible to wait until the next morning at 6 a.m. to proceed with the operation-for example, because there is evidence to suggest that events must occur during the night. In addition to this requirement, specifically referred to in Articles 706-89 to 706-91, the general requirements of the preliminary article of the Code of Criminal Procedure, according to which the coercive measures for which a person may be subjected Suspect must be proportionate to the gravity of the offence.
Article 706-89, applicable to the investigation of the explosion, permits night searches on leave of the judge of freedoms and detention, seized at the request of the prosecutor of the The Republic. This is the extension to the offences referred to in Article 706-73 of the provisions of the second subparagraph of Article 706-24 of the Law of 22 July 1996 and declared in conformity with the Constitution by Decision No. 96-377 DC of 16 July 1996. 1996.
Article 706-90, applicable to the preliminary investigation, allows night searches on the authorization of the judge of freedoms and detention, seized upon the request of the public prosecutor, only where these operations are not relevant Not residential premises. This is the extension of the provisions of the second paragraph of Article 76-1 and Article 706-24 of the Act of 15 November 2001, which allow night searches in places such as wine cellars or professional premises, but Maintain an absolute prohibition on the search of a home.
Section 706-91, which is applicable to the investigation, allows the investigating judge to authorize night searches on the condition that such operations do not concern premises Housing. Searches may relate to these premises only if there is an emergency and one of the following three conditions is fulfilled: a crime or a flagrant offence, the immediate danger of the disappearance of evidence or material evidence, the existence of one or more of the Reasonable grounds to suspect that one or more persons in the premises where the search is to be carried out are committing crimes or offences falling within the scope of section 706-73. These conditions are the exact resumption of those currently provided for in Article 706-24-1 in the field of terrorism and respect the requirements set out by the Constitutional Council in the decision of 16 July 1996
That the rules of form set out in Articles 706-24 and 706-24-1 are applicable to authorisations issued by the Judge of Freedoms and Detention or the examining magistrate. Such authorizations must therefore be given for specified searches and be subject to a written order, specifying the description of the offence for which proof is sought, and the address of the places in which the visits, Searches and seizures can be made. The order must be reasoned and justify the need for operations. The procedural rules are prescribed only for a declaration of invalidity, and it can be recalled that, according to the case-law of the Court of Cassation, the nullification of searches is of a public nature. Article 706-92 finally states that such operations must be carried out under the control of the magistrate who authorised them, who may travel to the premises to ensure compliance with the legal
. The legislature that the guarantees for night searches, as laid down by the law referred to, are identical to or greater than those currently prevailing for the current regimes. They thus ensure full compliance with the principles of necessity and proportionality of penalties and are such as to prevent any unjustified interference with the inviolability of the home.
5. As far as correspondence from the telecommunications route is concerned, Article 706-95 of the Code of Criminal Procedure resulting from Article 1 of the law referred to permits, for the offences covered by Article 706-73, their interception, Registration and transcription in the investigation.
In the state of the law, such interceptions are only possible in the context of judicial investigation. The purpose of the new provisions is to avoid the opening of judicial information which would be unnecessary and to verify the relevance of such an opening in the light of the first elements of investigation communicated to the public
. Indicate, first, that the provisions of new Article 706-95 cannot be found to be contrary to Article 66 of the Constitution. It follows from the very provisions adopted by the legislature that interception can only be decided by the judge of freedoms and detention; in order to authorise the establishment of the measure and its possible renewal, it does not May, in addition, be seized by the Public Prosecutor of the Republic.
Second, the duration of interceptions is limited to a period of 15 days, renewable only once. Furthermore, the provisions of Articles 100, paragraph 2, 100-1, 100-3 to 100-7 of the Code of Criminal Procedure resulting from the Act of 10 July 1991 apply. Thus, the interception decision must be written and include all the elements of identification of the link to be intercepted, the offence which motivates the use of interception and the duration of the interception; the prosecutor of the Republic or The judicial police officer committed by him may require only qualified agents who participate in the public telecommunications service for the installation of the interception device; only relevant correspondence to the demonstration of The truth is the subject of a transcript of the proceedings, which shall be placed on the record of the proceedings; the records shall be destroyed in the proceedings of the public prosecutor or the attorney general at the end of the limitation period of the action The specific arrangements for the interception of the line of certain persons, in particular lawyers, are applicable. Given these safeguards, the new legislation does not unduly infringe privacy.
6. Articles 706-96 to 706-102 of the Code of Criminal Procedure resulting from the law referred to provide for and organise the holding, fixation, transmission and recording of words spoken by one or more persons on a private basis or Confidential in private or public places or vehicles, or the image of one or more persons in a private place.
Such investigative measures are essential to the dismantling of organised crime groups. The recordings obtained under the conditions laid down in Articles 706-96 to 706-102 can be used to administer the proof of infringements, which is not possible in the absence of legal provisions. It can be noted that the legislation of the vast majority of European countries provides for the use of such devices. Regularly requested in the framework of international mutual assistance, in particular by the United Kingdom, Germany and Italy, the French judicial authorities cannot, in the absence of a legal framework, respond favourably to these requests. Most frequently involve vehicle surveys used by drug traffickers or members of human trafficking networks.
Taking into account the procedural and substantive guarantees specified by the legislator, the
be ordered only for the offences referred to in Article 706-73 and on the condition that the infringements referred to in Article 706-73 shall be subject to the The need for information justifies it. The decision shall be taken by the investigating judge, after the opinion of the public prosecutor, for any sound and image-fixing requiring the introduction, including out of the hours provided for in article 59, in a private vehicle or premises, and By the judge of the freedoms and detention seized by the investigating judge for sound and image-fixing requiring the introduction, in a dwelling place and outside the hours provided for in Article 59 of the Code of Criminal Procedure. The decision shall be taken by reasoned order and shall contain all the elements of identification of the vehicles or private or public places, the infringement which motivates the use of the measure and the duration of the measure. A record of each operation of the installation of the technical device and of the operations of captation, fixation and sound recording or audiovisual recording shall be drawn up and the recordings shall be placed under closed seals. Only recorded images or conversations relevant to the manifestation of truth are described or transcribed. Sound or audiovisual recordings shall be destroyed in the care of the public prosecutor or the attorney general at the end of the limitation period for public action.
In addition, the legislator has specified that the places referred to in the Articles 56-1 (law firm), 56-2 (premises of a press or audiovisual communication undertaking) and 56-3 (office of a doctor, a notary, an attorney or a bailiff) of the Code of Criminal Procedure cannot be the subject of a Sound or image-fixing. The vehicle, the office and the domicile of the persons referred to in Article 100-7 of the Code of Criminal Procedure, in particular lawyers, shall not be subject to such a device.
Finally, the duration of the measure shall be fixed at 4 Months. It can only be renewed under the same conditions of form and duration, that is, by reasoned decision of the competent judge if it considers that the requirements of the information always justify it. It can also be noted that the requirement to state reasons constitutes an additional guarantee in relation to the interception of correspondence issued by way of telecommunication at the initiative of the investigating judge (Art. 100 et seq. Of the Code of Criminal Procedure, which came out of the Act of 10 July 1991) which has a similar renewal procedure, as many times as it is necessary for the continuation of the information (Art. 100-2 of the Criminal Procedure Code).
II. -Article 48
A. -Section 48 of the Act contains a chapter in the Code of Criminal Procedure relating to the automated national court file of sex offenders, the automated application of personal information held by the locker In order to prevent the renewal of sexual offences and to facilitate the identification of their authors.
According to the authors of the remedies, those provisions would be under the terms of Article 8 of the Bill of Rights. It would be contrary to the fundamental principle recognized by the laws of the Republic relating to the special criminal law of minors.
B.-Those criticisms Are not valid.
1. First, it is necessary to recall the findings that led to the legislator's creation, as a security measure, of this automated national file of sexual offenders.
First, there is a notable rate Recidivism of perpetrators of sexual offences (6 % re-offending within 5 years of conviction). The nature and gravity of sexual offences justify the fact that the public authorities are implementing appropriate means to prevent this recidivism, especially as it is not uncommon for recidivism to result in more and more offences Serious. This specificity of sexual offences has already led the legislator to intervene to establish socio-judicial follow-up measures and to establish the national automated DNA fingerprinting file, which originally concerned Sexual offences.
It must be recognized that existing devices to prevent re-offending remain inadequate. In particular, it is not currently possible to know, beyond a certain period of time after the conviction of the perpetrator of a sexual offence and the execution of his sentence, the criminal record of the person concerned or to know his address. This information is no longer available when the person has been convicted but has exercised a remedy, several years before the conviction becomes final. The same is true if the person is merely the subject of an inquiry. Such information is not available because neither the criminal record nor the judicial police files are intended to preserve or enable their operational exploitation.
Yet this information may be Particularly useful, in order to enable the judicial authority and the judicial police to proceed with the rapid elucidation of new attacks, thanks in particular to knowledge of the regularly updated address of the persons concerned, or to The prefectural authority to determine whether a person who has applied for registration to engage in contact with minors has a history of sexual offences. It should be noted, in particular, that it is important in kidnapping and sequestration cases to proceed as quickly as possible to all useful searches to find the victim alive.
2. In view of the purpose of the file, the complaint articulated by the references and drawn from the lack of knowledge of Article 8 of the Declaration of Human Rights and of the citizen on the need for penalties is inoperative.
In fact, registration in the national file The automatic nature of the perpetrators of sexual offences is in no way a sanction. The file meets a security objective and is part of a police action plan. It aims to enable the elucidation of new cases and to prevent some administrative approvals from being issued when the administrative authority has not had the appropriate information.
3. The constitution of the file and its management procedures do not unreasonably infringe privacy, taking into account the guarantees laid down by the legislator.
In the first place, the file is, like the criminal record, A file " Judicial " To the extent that the information contained therein is the result of decisions taken by the judicial authority and which held that the person had actually committed a crime or a crime of a sexual nature, unlike the Judicial police files that include references to acts performed by investigators. The implementation of the file is, moreover, entrusted to a magistrate, the head of the criminal record department.
Second, only the perpetrators of serious sexual offences referred to in Article 706-47 of the Code of Procedure are concerned Criminal offences, i.e. crimes of a sexual nature or committed against minors (punishable by at least 15 years'imprisonment), sexual assault or sexual assault (punishable by at least 5 years' imprisonment), or acts of Child pornography (punishable by at least 3 years' imprisonment); on the other hand, the offence of sexual exposure is not covered, since it is no longer included in Article 706-47. In addition, the recording in the file is automatic only for the most serious offences; for those who are punished by a sentence of less than or equal to 5 years, the last paragraph of Article 706-53-2 provides that the entry in the file May result only from an express decision of the court or prosecutor of the Republic. Likewise, the registration of a person being examined and placed under judicial review may be decided only by the investigating judge. Furthermore, the maximum period of retention of the information set out in Article 706-53-4 depends on the seriousness of the offences concerned: 30 years for crimes and offences punishable by 10 years' imprisonment, 20 years in other cases; Can be compared to the 40-year time limit for the automated national DNA fingerprint file.
Third, the actual record in the file implies that the person's identity has been verified with the directory National identification to avoid confusion of identity. Information concerning non-final decisions is immediately deleted if the person has the benefit of a waiver of judicial review, non-suit, acquittal or acquittal. In accordance with Article 706-53-10, persons may apply to the judicial authority for the deletion of the file of the information concerning them as soon as they are no longer included in their criminal records, that is to say in practice as soon as these Persons have received legal or judicial rehabilitation (see Article 133-13 of the Criminal Code and Article 786 of the Code of Criminal Procedure). The request for erasure may be made successively before three different authorities: the Public Prosecutor, the Judge of Freedoms and Detention and the President of the Chamber of Education; these magistrates must order Erasure if the preservation of the data is no longer necessary in view of the purpose of the file, having regard to the nature of the offence, the age of the person at the time of his commission, the time since then and the current personality of the The person concerned.
Finally, it must be stressed that the obligations imposed on the persons in the file depend on the seriousness of the offences committed: only in the case of a crime or in the case of a crime punishable by 10 years' imprisonment (assault or Aggravated sexual abuse committed on a minor) that the person is required to report every six months to a police or gendarmerie service; in any other case, the person is only required to show the annual justification of his or her Home and indication of home changes, which can be done by mail. Where the person is required to submit a presentation every six months, the person must carry out the service with a departmental service, not in front of the service closest to his home, in order to avoid the risk of being locally designated As the perpetrator of a sexual offence.
4. In view of the purpose of the file which, as has been said, is not repressive, the invocation by recourse to the fundamental principle recognized by the laws of the Republic on juvenile justice appears to be inoperative. However, in any case, it can be observed that the specific arrangements laid down by the legislator in relation to minors take account of their particular situation.
It is true that the new file concerns minors convicted of a Sexual offences referred to in section 706-47, including the provision of an educational measure or sanction. It should be noted, however, that for minors aged 16, enjoying the full right of the minority excuse provided for in article 20 (2) of the Ordinance of 2 February 1945, convictions for offences punishable by 10 years' imprisonment for In accordance with the provisions of the last paragraph of Article 706-53-2, major, and therefore 5 years for these minors, only upon the express decision of the court. The same shall apply to minors under the age of 13, who may not be sentenced to imprisonment and whose convictions will be entered in the file only if the children's court so expressly
. In addition, under Article 769 of the Code of Criminal Procedure under Article 201 of the Criminal Procedure Act, convictions will be removed from the juvenile's criminal record 3 years after their conviction, unless there are new convictions. At the end of that period, the minor will therefore be able to ask the Public Prosecutor of the Republic and, in the event of a refusal, to the judge of the freedoms and detention and to the President of the Chamber of Education, his erasure of the file of the perpetrators of offences Sex. Article 706-53-10 also expressly provides that the age of the person at the time of the facts, and thus its possible minority, must be taken into account in the event of a request for deletion to determine whether the retention of the entries in the file is Purpose for this purpose.
III. -On Article 63
A. -Article 63 of the law referred to is translated, by inserting a chapter Ier bis into the Code of Criminal Procedure, the duties of the custody of the seals, the Minister of Justice. It states, in particular, that the custody of seals provides general instructions for public action to the public prosecutor and reiterates that it may direct prosecutors general to initiate or initiate proceedings or to bring proceedings before the courts Written requisitions, by written instructions and placed on the record of proceedings.
Members of the House of Commons and Senators criticize these provisions, arguing that they would undermine the separation of powers in section 2 and 16 of the Declaration of Human and Citizen Rights, article 66 of the Constitution and the principle of equality.
B. The Government considers that these grievances cannot be upheld.
1. In the first place, it is important to point out that the provisions criticised by the references, that is to say those relating to individual instructions which may be addressed by the custody of seals, merely reproduce provisions in
provisions do, in fact, only include the wording of the current Article 36 of the Code of Criminal Procedure, which was last amended by the law of 24 August 1993. They date, in fact, 1958 and have been amended twice by the Act of 4 January 1993, to provide that the individual instructions had to be written, and then by the law of 24 August 1993, to provide for their payment to the file of the Procedure. The law referred to them kept them identical, but transferred them to the last paragraph of new Article 30 of the Code of Criminal Procedure, in order to be consistent in the presentation of the texts, with Article 36 being rewritten in order to Refer to the individual instructions given by the Attorneys General to the prosecutors of the Republic.
The only change in the law referred to the rewritten provisions of the new Article 30 of the Code of Criminal Procedure Concerns the role of the custody of seals in the conduct and coordination of public action and the general instructions for public action which it may address in this context to the judges of the Public Prosecutor's Office. However, those provisions are not criticised by the references, which dispute only the reiteration of the power to direct written and written instructions to the file.
Since the appeals involve only provisions Which merely reproduce those which were in force on the date of the adoption of the law, the conditions under which compliance with the Constitution of those provisions could be usefully discussed are not met in the present case (Decision No. 2002-464 DC of 27 December 2002; Decision No. 2003-475 DC of 24 July 2003).
2. Second, and in any event, criticism of the power of the custody of the seals to issue individual instructions is unfounded.
The provisions at issue do not, in fact, ignore any provision Constitution, and in particular Article 66 of the Constitution. They do not further undermine the separation of powers, but simply reflect the hierarchical nature of the Public Prosecutor's Office, whose judges are placed under the authority of the Minister of Justice, as set out in Article 5 of the The Ordinance of 22 December 1958 on the Organic Law relating to the Statute of the Judiciary, as evidenced by Article 65 of the Constitution.
In the other hand, this authority exercised by the custody of seals with regard to the magistrates of the public prosecutor's office A very special character, which is unrelated to the hierarchical power exercised, in the line of Article 20 of the Constitution, by the other ministers on their administration. The magistrates of the public prosecutor's office retain their freedom of speech in any event; they have their own powers which the minister cannot exercise in substitution; they cannot receive negative instructions such as ordering the classification without further action. Instructions to them shall be in writing and shall be placed on the record of the proceedings. On the other hand, they benefit from the advancement or disciplinary sanction of the guarantee from the intervention of the High Judicial Council.
In these circumstances, compliance with the Constitution of the new Article 30 of the He was not questioned by the Constitutional Council when it ruled on the law of 24 August 1993 (Decision No. 93-326 DC of 11 August 1993).
IV. -Article 137
A. -Section 137 of the Act contains a section of the Code of Criminal Procedure relating to the procedure for appearance on prior admission of guilt.
The authors of the appeals challenge these new provisions of the Criminal proceedings on the ground that they would be contrary to the terms of Article 9 of the Declaration of Human Rights and the Citizen and Article 66 of the Constitution and that they would violate the constitutional principle of the rights of the Defence. They consider that the new procedure would not have a fair and equitable character guaranteeing the balance of the rights of the parties in the trial and called into question the approval procedure, in particular the lack of public character Hearing. They also argue that the provisions adopted by the legislature would violate the presumption of innocence and the principle of equality.
B.-These different grievances cannot be accepted by the Constitutional Council.
1. The provisions introduced to the Code of Criminal Procedure by Article 137 of the Criminal Procedure Act allow the prosecutor of the Republic, for offences punishable by up to 5 years' imprisonment, to propose to the author the facts which recognise his guilt. To imprisonment for a maximum of one half of the penalty incurred without exceeding one year. In the event of an agreement by the perpetrator, the sentence shall be subject to approval by the President of the High Court or a Judge by his or her delegate. If the approval is pronounced, then the sentence is enforceable as in the case of judgment.
This new procedure aims, as well as the procedure of criminal composition, to improve the functioning of correctional jurisdictions, to reduce the Time for judgment and to lead to the delivery of more appropriate and effective sentences as accepted by the offender. It will increase the capacity for criminal response to the increase in criminal cases and lead to the submission of cases to judges at the head office which were only subject to treatment by the Ministry alone Public. It is intended to be implemented in cases of simple and recognised facts, for which the accused is ready to take a sentence as soon as she intervenes quickly. It cannot be implemented if the facts have been committed by a minor, if the accused has been referred to the court by the investigating judge, or if it is a matter of press offences, unlawful killings, and Policies (such as treason or espionage) or offences under special law.
2. This procedure of appearance on prior admission of guilt is not contrary to Article 66 of the Constitution and does not misunderstand the separation of the authorities responsible for public action and the authorities for judgment
It is important to point out in this respect that the final decision rests with a judge at the seat. According to article 495-9 of the Code of Criminal Procedure, if the person concerned accepts the proposal for a sentence made by the public prosecutor, it shall be presented to the President of the High Court or to the judge delegated by him for the purpose of registration The proposal. The judge of the seat hears the person concerned, assisted by his lawyer. It is for the Commission to verify the reality of the facts and their legal qualifications. It shall rule on the application for approval by means of a reasoned order, which shall be read publicly in the event of approval.
It is self-evident that, if the judge of the seat, after verifying the facts, was not satisfied with the guilt of the person concerned, It cannot certify the proposal of the public prosecutor. It can no longer do so if it considers that the legal characterization of the facts does not correspond to the reality of the facts committed-for example, an offence punishable by more than five years' imprisonment or an offence excluded from the field Application of the procedure. According to Article 495-11, his order must be reasoned by the finding that the person, in the presence of his lawyer, acknowledges the facts of which he is accused; it is therefore for the judge to verify the sincerity of that recognition of the Guilt and the acceptance of the proposed sentence (s). It is still the duty of the judge, according to Article 495-11, to find that such penalties are justified in the light of the circumstances of the offence and the personality of the author; if the judge considers the punishment to be too severe or insufficient, It will not certify it. It may still refuse approval if it considers that the nature of the facts or the personality of the person concerned or the interests of the victim are such as to justify a public and contradictory trial. A refusal of approval can still be made because the information and the summoning of the victim would not have been carried out or because the victim would not be present. It may be added that no appeal is open to the public prosecutor in the event of refusal of approval.
Such an intervention by a judge of the seat fully satisfies the constitutional requirements which had been recalled in respect of the procedure Criminal injunction (Decision No. 95-360 DC of 2 February 1995).
3. The procedure does not further undermine the presumption of innocence guaranteed by Article 9 of the Declaration of Human and Citizen Rights or the constitutional principle of the rights of the defence
Appearance on prior admission of guilt necessarily implies that the person concerned has committed the offence for which he is being prosecuted. The legislator ensured that the intervention of the headquarters magistrate would lead him, before proceeding with the approval, to check the reality of the facts and their legal qualification. The judge of the seat who is not convinced of the guilt of the person concerned will have to refuse the approval of the penalty (s) proposed by the public prosecutor.
In addition, the legislator has established numerous guarantees for the Ensure that the person's admission of guilt is free, informed and unequivocal. It should be noted that the procedure, in particular, cannot be implemented in respect of a minor.
Thus, the person to whom a sentence is proposed must be assisted by a lawyer when she declares that he or she must acknowledge before the prosecutor Of the Republic of the alleged facts, that it receives the proposal for a sentence made by the Public Prosecutor of the Republic and whether or not it declares its agreement. It cannot renounce the assistance of this lawyer, who can freely communicate with his client and immediately consult the file. In this respect, the difference with the criminal composition procedure for which the assistance of a lawyer is not compulsory may be made.
The person concerned may, in addition, request a period of ten days before giving or refusing. Its agreement. It must be notified of this right. This agreement must be repeated by the person concerned in the presence of his lawyer before the judge responsible for approving or not the proposal for a sentence, which hears them in chambers of the Council, outside the presence of the public prosecutor. It can also be noted that the procedure of criminal composition does not provide for the compulsory presentation before the judge responsible for validating the proposal.
In the event of approval, the person concerned has ten days to appeal, as He would have the right if he had been convicted by the court in accordance with the common law procedure. If he considers, after reflection, to have accepted a sentence that is too severe or if he intends to return to his or her admission of guilt, he can therefore benefit from a public and adversarial trial before the Court of Appeal's correctional chamber. The appeal within ten days may, of course, be exercised even if the person concerned has been granted a period of ten days before he agrees.
In the case of refusal of approval, Article 495-14 of the Code of Criminal Procedure provides that the Minutes of The procedure for appearance on prior admission of guilt cannot be transmitted to the court of inquiry or judgment, and neither the public prosecutor nor the parties can report to that court Or documents submitted in the course of the proceedings. The prosecution has no recourse to challenge a refusal of approval.
4. The institution of the procedure provided for in Article 137 of the law referred to does not affect the principle of equality any more.
The principle of equality before the courts does not in fact lead to uniformity in criminal proceedings. It does not prohibit the legislature from considering various forms of criminal response, where applicable to the same offences. In that regard, it must be pointed out that it is for the public prosecutor to assess, in the light of the particular circumstances of each case, the follow-up he intends to give to the infringements brought to his knowledge. It may choose not to initiate public action, with or without an alternative measure, under Article 40 et seq. Of the Code of Criminal Procedure. If it decides to prosecute, the law opens up the choice between different procedures and between different procedures for bringing proceedings before the court.
The Constitutional Council has not found the recent institution of the Constitution to be unconstitutional. New criminal proceedings. It has accepted that it is open to the legislator to provide for different rules of procedure according to the facts, situations and persons to which they apply, provided that these differences do not result in unjustified discrimination and that Be provided to persons subject to equal guarantees, in particular as regards the observance of the principle of the rights of the defence (Decision No 86-215 DC of 3 September 1986; Decision No. 2002-461 DC of 29 August 2002). In fact, the criminal court order procedure has been established since Act No. 72-5 of 3 January 1972 and amended several times (see, inter alia, Acts Nos. 92-1336 of 16 December 1992 and No. 93-913 of 19 July 1992). 1993), the procedure for the criminal composition instituted by Act No. 99-515 of 23 June 1999, in accordance with the principles laid down in Decision No. 95-360 DC of 2 February 1995, the criminal court order procedure applicable to the offences set out in The code of the road resulting from Act No. 2002-1138 of 9 September 2002 (see Decision No. 2002-461 DC of 29 August 2002).
In the present case, the procedural differences do not result in unjustified discrimination and the guarantees provided by The legislature ensures that a fair and fair trial is respected, respecting the principle of the rights of the
. The procedure laid down by the legislator for this procedure of appearance on prior admission of guilt, in relation to the public nature of the hearings or the place of the victims, does not disregard any rule or principle of value Constitution.
(a) The legislature anticipated that the approval hearing would be held in a non-public sitting board. The approval order, on the other hand, will be subject to public reading. This choice is primarily motivated by considerations of the rights of the accused. In the event of refusal of approval, it would be difficult, if the hearing was public, to prohibit any person from reporting before the court, then seized in accordance with the common law procedure, from statements made by the accused to the Hearing. It is in order to guarantee respect for the rights of defence that the legislature intended that the minutes of proceedings cannot be transmitted to the court of inquiry or judgment and has prohibited the public prosecutor and the parties from reporting Before that court the declarations of the defendant or the documents submitted during the proceedings. The non-public nature of the approval hearing is the corollary of this prohibition; it is part of the enforcement of the rights of the defence.
It must also be noted, in this regard, that no rule or principle of constitutional value Requires a public hearing before the delivery of each court decision. Moreover, the scheme provided for by the legislator does not appear to disregard the terms of Article 6 of the European Convention on Human Rights, which guarantees the right of any person to enjoy a public trial, But without requiring that person to be tried publicly. In the present case, the right of the person concerned to benefit from a public trial shall not be called into question, in so far as he knows that the approval hearing is taking place in the Board of the Council and which he may always, in his counsel, usefully advise on this point. To refuse the procedure in order to be judged publicly in the context of the common law procedure.
It may be recalled that the judge of the seat may refuse the approval of the proposed penalty (s) if he considers that the The circumstances of the case justify a public and adversarial trial before the court.
Lastly, it is possible to note that the procedure for the criminal composition and that of the Criminal Ordinance applicable to correctional matters does not Call for public hearings.
(b) With respect to the situation of victims, it must be noted that section 495-13 of the Code of Criminal Procedure resulting from the law referred to provides the following guarantees.
First, when Victim of the offence is identified, it must be informed without delay and by any means of the procedure. It is invited to appear at the same time as the author of the facts, accompanied, where appropriate, by his lawyer, before the judge of the seat to form a civil party and seek compensation for his damage. The judge of the seat will rule on this request, even in the case where the civil party did not appear at the hearing, but filed a claim for compensation during the investigation. The civil party may appeal the order. In principle, therefore, in the same way that the victim is notified of the date of the immediate appearance hearing to be present for trial, she will be notified of the person's appearance before the court seised to certify the proposed sentence. The absence of the victim during the appearance of the author of the facts before the judge of the seat may lead him to refuse the approval, if he considers that the latter's rights have not been respected. Furthermore, the victim's comments at the approval hearing, if present, may lead the judge to refuse the approval, considering either that the sentence proposed by the public prosecutor and accepted by the author of the Is not severe enough that the circumstances of the case justify a public and adversarial trial before the court.
Second, if the victim was not able to exercise his rights before the judge of the seat, or Has not been prevented from travelling, the Public Prosecutor 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 of the date, for him Make it possible to form a civil party. The court will then decide on the only civil interests, in the light of the record of the proceedings which is paid to the debate.
In this respect, the situation of the victim appears more favourable in this procedure than in that of the criminal composition and the Also in relation to the judgment before the court, seized in an immediate appearance or in another mode: in the case of the criminal composition, it is for the victim to name the person who committed the offence before the court If the victim is absent and has not been able to assert his or her rights at the criminal trial, then it can only initiate proceedings before the civil
. Cause, it can be said that in practice, as has been the case in the field of criminal composition and as will be the case for the custody of seals by circular, the implementation of this new procedure will most often concern cases For which there are no victims, or cases where the victim's injury has been fixed in the course of the investigation, or cases where the victim is not identified or identifiable, or in cases where the victim has made known During the investigation that it did not wish to appear before a court but that it sought compensation pursuant to Article 420 (1) of the Code of Criminal Procedure-an application on which the judge in charge of the registration may decide in his Absence as would have been the court if it had been entered.
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For these reasons. The Government is of the opinion that none of the complaints articulated by the applicant parliamentarians are such as to lead to the censorship of the provisions of the law adapting justice to the evolutions of crime. He therefore considered that the Constitutional Council should reject the appeals before it.
