Decision No. 2003-467 Dc Of 13 March 2003

Original Language Title: Décision n° 2003-467 DC du 13 mars 2003

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JORF No. 66 of 19 March 2003 Page 4789
Text N ° 2



Decision No. 2003-467 DC of 13 March 2003

NOR: CSCL0306445S ELI: Not available


INLAND SECURITY ACT

The
Council was seized, under the conditions laid down in the second paragraph of Article 61 of the Constitution, of the Law on Internal Security,
on 14 February 2003, by Mr Claude Estier, Mrs Michèle André, MM. Bernard Angels, Bertrand Auban, Robert Badinter, Jean-Pierre Bel, Jacques Bellanger, Mme Maryse Bergé-Lavigne, M. Jean Besson, Mme Marie-Christine Blandin, M. Didier Boulaud, Mme Yolande Boyer, Claire-Lise Campion, Mr. Bernard Cazeau, Mme Monique Cerisier-ben Guiga, MM. Gilbert Chabroux, Michel Charasse, Raymond Courrière, Roland Courteau, Yves Dauge, Marcel Debarge, Claude Domeizel, Michel Dreyfus-Schmidt, Mme Josette Durrieu, MM. Jean-Claude Frécon, Bernard Frimat, Charles Gautier, Jean-Pierre Godefroy, Jean-Noël Guérini, Claude Haut, Mme Odette Herviaux, MM. André Labarrère, Serge Lagauche, Yves Krattinger, Louis Le Pensec, André Lejeune, Jacques Mahéas, Jean-Yves Mano, François Marc, Jean-Pierre Masseret, Marc Massion, Gérard Miquel, Michel Moreigne, Jean-Marc Pastor, Daniel Percheron, Jean-Claude Peyronnet, Jean-François Picheral, Bernard Piras, Jean-Pierre Plancade, Mme Danièle Pourtaud, Gisèle Printz, MM. Daniel Raoul, Paul Raoult, Daniel Reiner, Roger Rinchet, Gérard Roujas, Claude Saunier, Michel Sergeant, Jean-Pierre Sueur, Michel Teston, Jean-Marc Todeschini, Pierre-Yvon Trémel, André Vantomme, André Vézinhet, Marcel Vidal, Henri Weber, Mme Nicole Borvo, M. Guy Fischer, Marie-Claude Beaudeau, Marie-France Beaufils, Danielle Bidard, MM. Robert Bret, Yves Coquelle, Annie David, Michelle Demessine, Evelyne Didier, MM. Thierry Foucaud, Gérard Le Cam, Hélène Luc, MM. Roland Muzeau, Jack Ralite, Ivan Renar and Mrs. Odette Terrade, Senators,
and February 19, 2003, by MM. Jean-Marc Ayrault, Damien Alary, Ms Sylvie Andrieux-Bacquet, MM. Jean-Marie Aubron, Jean-Paul Bacquet, Jean-Pierre Balligand, Gérard Bapt, Claude Bartolone, Jacques Bascou, Christian Bataille, Jean-Claude Bateux, Jean-Claude Beauchaud, Éric Besson, Jean-Louis Bianco, Jean-Pierre Blazy, Serge Blisko, Patrick Bloche, Jean-Claude Bois, Maxime Bono, Augustin Bonrepaux, Jean-Michel Boucheron, Pierre Bourguignon, Danielle Bousquet, MM. François Brottes, Jean-Christophe Cambadélis, Thierry Carcenac, Christophe Caresche, Martine Carillon-Couvreur, MM. Laurent Cathala, Jean-Paul Chanteguet, Michel Charzat, Alain Claeys, Mme Marie-Françoise Clergeau, MM. Gilles Cocquempot, Pierre Cohen, Claude Darciaux, Michel Dasseux, Martine David, MM. Marcel Dehoux, Michel Delebarre, Bernard Derosier, Michel Destot, Marc Dolez, François Dosé, René Dosière, Julien Dray, Tony Dreyfus, Pierre Ducout, Jean-Pierre Dufau, Jean-Louis Dumont, Jean-Paul Dupré, Yves Durand, Henri Emmanuelli, Claude Évin, Laurent Fabius, Jacques Floch, Pierre Forgues, Michel Françaix, Jean Gaubert, Nathalie Gautier, Catherine Generisson, MM. Jean Glavany, Gaétan Gorce, Alain Gouriou, Elisabeth Guigou, Paulette Guinchard-Kunstler, Mr David Habib, Ms Danièle Hoffman-Rispal, MM. François Hollande, Jean-Louis Idiart, Françoise Imbert, MM. Serge Janquin, Jean-Pierre Kucheida, Ms. Conchita Lacuey, MM. Jérôme Lambert, François Lamy, Jack Lang, Jean Launay, Jean-Yves Le Bouillonnec, Gilbert Le Bris, Jean-Yves Le Déaut, Jean-Yves Le Drian, Jean Le Garrec, Jean-Marie Le Guen, Bruno Le Roux, Marylise Lebranchu, MM. Michel Lefait, Patrick Lemasle, Guy Lengagne, Ms Annick Lepetit, MM. Jean-Claude Leroy, Michel Liebgott, Martine Lignières-Cassou, MM. François Loncle, Victorin Lurel, Bernard Madrelle, Philippe Martin, Christophe Masse, Didier Mathus, Kléber Mesquida, Jean Michel, Didier Migaud, Mme Hélène Mignon, MM. Arnaud Montebourg, Henri Nayrou, Alain Neri, Mme Marie-Renée Oget, MM. Michel Pajon, Christian Paul, Germinal Peiro, Jean-Claude Perez, Mme Marie-Françoise Pérol-Dumont, Geneviève Perrin-Gaillard, MM. Jean-Jack Queyranne, Paul Quilès, Alain Rodet, Bernard Roman, René Rouquet, Patrick Roy, Mme Ségolène Royal, M. Michel Sainte-Marie, Mme Odile Saugues, MM. Henri Sicre, Dominique Strauss-Kahn, Pascal Terrasse, Philippe Tourtelier, Daniel Vaillant, André Vallini, Manuel Valls, Michel Vergnier, Alain Vidalies, Jean-Claude Viollet, Philippe Vuilque, Chantal Robin-Rodrigo, Simon Renucci, Mme Christiane Taubira and Roger-Gérard Schwartzenberg, Members of Parliament;
The Constitutional Council,
Given the Constitution;
In the light of Order No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council, in particular Chapter II of the Constitution Title II of the said order;
Given the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950;
In view of the Penal Code;
Given the Code of Criminal Procedure;
Given the general code of the Territorial communities;
Given the code of administrative justice;
Given the code of communes applicable in New Caledonia;
In view of the Act of 12 April 1906 amending Articles 66, 67 of the Criminal Code, 340 of the Code of Criminal Investigation and Setting the criminal majority at the age of 18;
In view of the Act of 22 July 1912 on juvenile and juvenile courts and on probation;
In view of Order No. 45-174 of 2 February 1945 on juvenile delinquency;
Vu Order No. 45-2658 of 2 November 1945, as amended on the conditions of entry and residence of aliens in France;
In view of Act No. 77-1460 of 29 December 1977 amending the municipal system in the territory of French Polynesia;
Vu Act No. 78-17 of 6 January 1978, as amended relating to computers, files and freedoms, in particular Articles 2 and 39 thereof;
In view of Act No. 79-587 of 11 July 1979 on the statement of reasons for administrative acts and Improving relations between the administration and the public, in particular Article 1;
In view of Act No. 83-629 of 12 July 1983 regulating private activities for monitoring, guarding and transporting funds;
Given the law n ° 95-73 of 21 January 1995 of orientation and programming relating to security;
In view of Act No. 98-349 of 11 May 1998 on the entry and residence of aliens in France and the right to asylum;
Given Act No. 2000-321 of 12 April 2000 On the rights of citizens in their relations with administrations, in particular Article 24;
In view of Act No. 2000-516 of 15 June 2000 strengthening the protection of the presumption of innocence and the rights of victims;
Law No. 2000-614 of 5 July 2000 on the reception and housing of Travellers;
Due to Act No. 2001-1062 of 15 November 2001 on daily safety;
In view of Act No. 2002-307 of 4 March 2002 supplementing Act No. 2000-516 of 15 June 2000 strengthening the protection of the presumption of innocence and the rights of victims;
In view of Law No. 2002-1094 of 29 August 2002 on internal security orientation and programming;
In view of the Government's observations, recorded on 3 March 2003;
In response to the observations submitted by the honourable senators of the first reference, recorded on 11 March 2003;
In response to the reply comments submitted by the authors of the second reference, registered the 11 March 2003;
The rapporteur has been heard;
1. Considering that the authors of the two references have defected to the Constitutional Council the Law on Internal Security, in particular the conformity with the Constitution of its Articles 3, 11, 12, 13, 21, 25, 28, 30, 50, 51, 53, 64, 65, 75, 76, 96, 113, 122, 123, 141 and 142;
On item 3:
2. Considering that Article 3 of the Act referred to in Article L. 2215-1 of the General Code of Local and Regional Authorities by a 4 ° relating to the powers of requisition granted to the Prefect to restore public order; that under the first paragraph Of this 4 °: " In the event of an emergency, when the attainment of good order, safety, tranquility and public safety requires it, and the means available to the Prefect no longer allow for the continuation of the objectives for which it holds Police powers, the latter may, by order for reasons, for all the communes in the department or several or only one of them, requisition all goods and services, require any person necessary for the operation of that service or for the use of That good and prescribe any useful measure until the infringement of public order has ceased " ; that, by virtue of its second paragraph, that order must be reasoned and fix the nature of the benefits required, the duration of the requisition measure, and That the terms of its application; that its third paragraph provides that the prefect may have the measures prescribed by his decree carried out ex officio; that the following four paragraphs shall relate to the payment due by the State to persons Required; and under the eighth paragraph: " In the event of voluntary failure by the requested person to fulfil his or her obligations under the order issued by the Prefect, the President of the Administrative Court or the Magistrate Delegate may, at the request of the requesting authority, issue a penalty payment under the conditions laid down in Articles L. 911-6 to L. 911-8 of the Code of Administrative Justice " ; finally, the last paragraph provides that " The refusal to execute the measures Prescribed by the applicant authority constitutes an offence which is punishable by six months' imprisonment and a fine of EUR 10 000 ' ;
3. Considering that the authors of the two references accuse this provision of being drafted in too general and imprecise terms to satisfy the requirements of Article 34 of the Constitution, even though the powers it confers on the prefect Would be likely to affect the exercise of civil liberties, in particular the formula: Prescribe any useful measure until the infringement of public order has ceased " ; that the contested provision would be Moreover, in their view, contrary to the principle of necessity of penalties, as long as the penalty imposed by the administrative tribunal, in the event of voluntary failure by the requested person to fulfil its obligations under the prefectural order, May cumulate with the penalty laid down in the event of failure to comply with the measures prescribed by the applicant authority;
4. Considering, first, that the contested provisions tend to clarify and supplement the administrative police powers which already belong to the prefectural authority in the event of an emergency, when the restoration of public order requires Measures of requisition; that, by providing the details and additions in question, the legislature has not stayed within its jurisdiction; moreover, the measures taken by the prefect, on the basis of those provisions, may be challenged By the persons concerned before the administrative court, in particular in connection with a reference or penalty procedure;
5. Considering, in the second place, that the penalty imposed by the abovementioned provisions is intended to compel the person refusing to comply with the obligations to which the order of requisition submits it; that it does not Can be regarded as a penalty or sanction within the meaning of Article 8 of the Declaration of the Rights of Man and of the Citizen of 1789; that, as a result, the pleas alleging breach of the principles of the need for penalties and non-accumulation of penalties For the same mistake must be rejected as inoperative;
On items 11 to 13:
6. Considering that these articles provide for new arrangements for the inspection of vehicles by the judicial police officers and the agents placed under their control; that the authors of the two references accuse these articles of carrying offences Excessive respect for private life, the inviolability of the home, the freedom to go and come and personal freedom; that, in their view, they place an insufficient place on the judicial judge, the guardian of individual liberty, in the The conduct of the proceedings; that the articles criticized would at last be tainted by negative incompetence because of the imprecision that would affect their formulation;
As to the constitutional standards applicable to the inspection of vehicles :
7. Considering that according to article 2 of the Declaration of Human and Citizen's Rights of 1789: The aim of any political association is the conservation of natural and imprescriptible human rights. These rights are freedom, property, security, and resistance to oppression. ; Article 4 proclaims that " Freedom consists in being able to do everything that does not harm others: thus, the exercise of the natural rights of every man has no Terminals that provide for the enjoyment of the same rights to other members of society. These bounds can only be determined by law " ; that under Article 66 of the Constitution: No one shall be arbitrarily detained. -The judicial authority, the guardian of individual liberty, ensures that this principle is respected in accordance with the conditions laid down by law " ;
8. Considering that it is for the legislator to ensure conciliation between, on the one hand, the prevention of infringements of public order and the search for offenders, both necessary for the protection of rights and value principles Constitution, and, on the other hand, the exercise of constitutionally guaranteed freedoms, including the freedom to move and to come and respect for private life, protected by Articles 2 and 4 of the Bill of Rights The man and the citizen of 1789, as well as individual liberty, that article 66 of the Constitution places under the supervision of the judicial authority;
9. Considering that the administrative police measures liable to affect the exercise of constitutionally guaranteed freedoms must be justified by the need to safeguard public order;
10. Considering that, apart from cases where they act upon the requisition of the judicial authority, authorised agents may have a person only where there are plausible grounds for suspecting that it has just committed an offence or Where there are reasonable grounds to believe in the need to prevent it from committing one; that in such a case, the judicial authority must be informed at the earliest and the rest of the procedure under its supervision;
11:
11. Considering that Article 11 restores in the Code of Criminal Procedure an article 78-2-2 worded as follows: On the written requisition of the Public Prosecutor for the purposes of research and prosecution of acts of terrorism referred to in Articles 421-1 to 421-5 of the Penal Code, offences relating to weapons and explosives covered by article 3 of the Act of 19 June 1871, which repeals the Decree of 4 September 1870 on the manufacture of weapons of war and by articles 20, 31 and 32 of the decree of 18 April 1939 laying down the regime of war materials, weapons and ammunition, of the theft offences covered by Articles 311-3 to 311-11 of the Penal Code, of the recel referred to in Articles 321-1 and 321-2 of the same code or of the trafficking in narcotic drugs referred to in Articles 222-34 to 222-38 of the said Code, the judicial police officers, assisted, as appropriate, of the judicial police officers and the assistant judicial police officers mentioned in the 1 °, 1 ° bis and 1 ° ter of Article 21 may, in the places And for the period of time which that judge determines and which cannot exceed twenty-four hours, renewable on an express and reasoned decision in accordance with the same procedure, not only carry out the identity checks provided for in the sixth paragraph of Article 78-2 but also the inspection of vehicles travelling, stopped or parked on public roads or in places accessible to the public. -For the purposes of applying the provisions of this Article, vehicles in circulation may only be detained for the time strictly necessary for the conduct of the visit to be carried out in the presence of the driver. When it relates to a vehicle stationary or parked, the visit takes place in the presence of the driver or owner of the vehicle or, failing that, a person required for that purpose by the judicial police officer or police officer who does not report Not its administrative authority. However, the presence of an external person is not required if the visit involves serious risks to the safety of persons and property. -In the event of the discovery of an offence or if the driver or the owner of the vehicle so requests, and in the case where the visit takes place in their absence, a minutes shall be drawn up indicating the place and the dates and times of the beginning and The end of these operations. One copy shall be given to the person concerned and another shall be transmitted without delay to the public prosecutor. -However, the visit of vehicles specially designed for residential use and actually used as residence can only be made in accordance with the provisions relating to house searches and visits. -The fact that these operations reveal offences other than those referred to in the requisitions of the Public Prosecutor does not constitute a cause for annulment of the incident proceedings' ;
12. Considering, with regard to vehicle visits carried out on the requisitions of the Public Prosecutor, that the conciliation provided by these provisions between the constitutional principles mentioned above is not vitiated by any manifest error; That the list of offences contained in the first paragraph of new article 78-2-2 of the Code of Criminal Procedure is not manifestly excessive in the light of the public interest in the search for the perpetrators of these offences; Article 66 of the Constitution; that their terms are quite clear and precise in order to satisfy the requirements of Article 34 thereof; that is, in particular, contrary to the assertions of the applicants, of The expression " Publicly accessible places " And of " Vehicles specially adapted for residential use and used as residence " ; as is apparent from the very wording of the first paragraph of the new Article 78-2-2 of the Criminal procedure, each renewal of the authorization of the Public Prosecutor will be valid for 24 hours;
Article 12:
13. Considering that Article 12 of the Act referred to in the Code of Criminal Procedure contains an article 78-2-3 worded as follows: Judicial police officers, assisted, where appropriate, by judicial police officers and judicial police officers Assistants referred to in 1 °, 1 ° bis and 1 ° ter of Article 21, may make a visit to vehicles circulating or arrested on public roads or in places accessible to the public where there is a driver or passenger There are several plausible reasons for suspecting that he has committed, as an author or as an accomplice, a crime or a flagrant offence; these provisions also apply to the attempt. -The provisions of the second, third and fourth paragraphs of Article 78-2-2 shall apply to the provisions of this Article " ;
14. Considering, in the case of the vehicle visits carried out in order to establish flagrant offences, that those provisions are in conformity with the constitutional requirements set out above, because of the condition to which they are subject Visits; that they do not disregard Article 66 of the Constitution; that they are formulated in fairly clear and precise terms to respect the mission entrusted to the legislator by Article 34 of the Constitution;
Article 13:
15. Considering that Article 13 of the Act referred to in the Code of Criminal Procedure contains an article 78-2-4 worded as follows: To prevent serious harm to the security of persons and property, judicial police officers and, on order and under The responsibility of the latter, the judicial police officers and the assistant judicial police officers mentioned in the 1 °, 1 ° bis, 1 ° ter of Article 21 may carry out not only the identity checks provided for in the seventh paragraph of the Article 78-2 but also, with the agreement of the driver or, failing that, on instructions from the public prosecutor communicated by all means, on the visit of vehicles circulating, arrested or stationed on public roads or in places accessible to the public. Public. -Pending the instructions of the public prosecutor, the vehicle may be detained for a period of not more than thirty minutes. -The second, third and fourth paragraphs of Article 78-2-2 shall apply to the provisions of this Article " ;
16. Considering, in the case of vehicle visits carried out within the framework of the administrative police, that these provisions meet the constitutional requirements referred to above due to the condition to which they make such visits; That they do not disregard Article 66 of the Constitution; that they are formulated in fairly clear and precise terms in order to respect the task entrusted to the legislator by Article 34 of the Constitution;
On Articles 21 and 25:
17. Considering that these articles relate to the automated processing of nominative data implemented by the national police and gendarmerie services in the context of their missions;
18. Considering that it is supported by the authors of the two references that the impugned provisions would infringe respect for private life; that by referring to the regulatory power the determination of certain characteristics of the said treatments, in The duration of data retention, the legislator would not have exhausted its competence; that certain uses would be unrelated to the purpose of the processing; in particular, by allowing the consultation of the personal data For the purposes of administrative inquiry, the legislator would make it possible to make a prejudicial use of the rights of the persons concerned; that the fundamental principle recognised by the laws of the Republic in the field of criminal law would be disregarded. Minors as well as the presumption of innocence and the principle of equality;
The applicable constitutional standards are:
19. Considering that the freedom proclaimed by Article 2 of the 1789 Declaration implies respect for privacy;
20. Considering that it is for the legislature, pursuant to Article 34 of the Constitution, to lay down the rules concerning the fundamental guarantees given to citizens for the exercise of civil liberties; that it should, in particular, ensure The conciliation between, on the one hand, the safeguarding of public order and the search for offenders, both necessary for the protection of principles and rights of constitutional value and, on the other hand, respect for private life and Other constitutionally protected rights and freedoms;
Privacy:
21. Considering that the I of Article 21 provides that: The services of the national police and the national gendarmerie can implement automated applications of personal information collected in the course of preliminary investigations or investigations. Or investigations carried out on the basis of letters rogatory and concerning any crime or offence, as well as the offences of the 5th class punishing a security or public tranquility disorder or an attack on persons, Property or the authority of the State, in order to facilitate the finding of offences under the criminal law, the gathering of evidence of such offences and the search for their authors " ; that under the terms of II of the same article: " The treatments mentioned in the I may contain information on persons, without limitation of age, against whom there are serious or consistent clues which make it likely that they may have participated, as authors or accomplices, in the Committee on Offences referred to in the first paragraph of I.-They may also contain information on the victims of such offences; the latter may, however, object to the fact that the personal information concerning them is kept in The file as soon as the author of the facts has been definitively condemned " ;
22. Considering that the III of Article 21 places the processing of personal information under the control of the prosecutor of the competent Republic; that the latter may request that they be erased, supplemented or rectified, in particular in the case of Judicial recharacterization; that the correction for judicial requalification is of law where the person concerned so requests; that, in the event of a decision to discharge or acquittal has become final, personal data concerning the The persons concerned are erased unless the public prosecutor prescribes the maintenance for reasons relating to the purpose of the file, in which case it is the subject of a statement; that the decisions of no-place and, where they are Due to a lack of charges, no further classification shall be mentioned, unless the Public Prosecutor orders the deletion of the personal data;
23. Considering that the IV of Article 21 strictly defines persons, other than judicial judges, empowered, by virtue of their judicial police powers, to use the treatments in question; that under the V of the same article: " A Decree in the Council of State, taken after the opinion of the National Commission on Informatics and Freedoms, lays down the rules for the application of this Article. It shall specify, in particular, the list of contraventions mentioned in the I, the period of retention of the information recorded, the conditions for the authorisation of persons mentioned in the IV and, where appropriate, the conditions under which persons May exercise their right of access " ;
24. Considering that Article 22 of the Act, which amends Article 39 of the aforementioned Law of 6 January 1978, sets out the terms and conditions according to which the personal data contained in the files of interest in particular security Public may be communicated to interested persons;
25. Whereas Article 23 limits the list of judicial decisions in respect of which a person may be included in the file of persons sought;
26. Considering, finally, as is apparent from the parliamentary debates, that the aforementioned law of 6 January 1978, which the legislature has not heard, will apply to the treatments in question;
27. Considering that all these guarantees are of a nature to ensure, between respect for private life and the safeguarding of public order, a conciliation that is not manifestly unbalanced;
As to the use of treatments for purposes Administrative:
28. Considering that Article 25 allows for consultation for administrative purposes of personal data collected in the framework of judicial police activities only for specified purposes;
29. Considering that this is, first, " Decisions concerning the recruitment, assignment, authorisation, authorisation or authorisation, provided for by legislative or regulatory provisions, concerning either public employment participating in The exercise of State sovereignty missions, either public or private employment in the field of security or defence, or private or regulated private activities in the fields of games, betting and racing, or Access to protected areas as a result of the activity carried out there, or the use of materials or products of a dangerous nature " ; in such cases, the sole purpose of the consultation is to verify that the behaviour of the persons concerned Is not incompatible with the exercise of the functions or tasks envisaged; that it is carried out to the strict extent required by the protection of the security of persons and by the defence of the fundamental interests of the Nation; that it gives rise to Information of interested parties; that a decree of the Council of State shall fix the list of administrative investigations which, pursuant to Article 25 of the law referred to, may give rise to the consultation of automated processing of information Personal information referred to in section 21; and
30. Considering that consultation is also planned " For the processing of applications for the acquisition of French nationality and for the grant and renewal of titles relating to the entry and residence of aliens and for the appointment And promotion in national orders " ; in such cases, the consultation shall be carried out by police and gendarmerie officers specially empowered for that purpose or, under conditions laid down by decree in the Council of State, by Personnel with administrative police missions designated under the same procedures;
31. Considering that consultation is finally allowed for " The exercise of missions or interventions where the nature of the missions or the particular circumstances in which they are to be carried out involve the risk of harm to the order Security of persons and property, as well as for the protection or defence measures taken in the security sectors of the priority defence installations referred to in Article 17 of Order No. 59-147 of 7 January 1959 Carrying the general organisation of the defence " ; in such cases, the consultation is carried out by police officers and the national gendarmerie specially empowered for this purpose;
32. Considering that no constitutional norm is opposed in principle to the administrative use of nominative data collected in the framework of judicial police activities; that, however, such use would not Requirements arising from Articles 2, 4, 9 and 16 of the 1789 Declaration if, by its excessive character, it infringed the rights or legitimate interests of the persons concerned;
33. Considering that in the light of the reasons it sets for these consultations, such as the restrictions and precautions it attaches to them, the law referred to does not itself disregard any of the above-mentioned constitutional requirements;
34. Considering, moreover, that, pursuant to Article 2 of the abovementioned Act of 6 January 1978, that the contested provisions do not call into question: ' No administrative or private decision involving assessment of human behaviour can On the sole basis of an automated processing of information giving a definition of the profile or personality of the person concerned " ; therefore, the data collected in the files will, in each case, constitute only one element of the decision Taken, under the control of the judge, by the administrative authority;
35. Considering, finally, that those provisions do not themselves infringe the rights of aliens, who do not understand any general and absolute right to acquire French nationality or to have their residence permit renewed; That they cannot, however, be heard as calling into question the acquisition of French nationality where that nationality is, by virtue of the law, of right, or the renewal of a residence permit where the residence is, by virtue of the The
principle recognized by the laws of the Republic in the field of the criminal law of minors:
36. Considering that the reduction in the criminal responsibility of minors according to age, such as the need to seek their educational and moral rehabilitation through measures adapted to their age and personality, pronounced by a court Specialized or according to appropriate procedures, have been consistently recognized by the laws of the Republic since the beginning of the twentieth century; that these principles include their expression in the law of 12 April 1906 on the criminal majority of the Minors, the Children's Courts Act of 22 July 1912 and the order of 2 February 1945 on juvenile delinquency;
37. Considering that this principle is not infringed solely by the fact that the contested provisions do not contain a limitation on the age of persons on whom information is collected under the conditions laid down in Article 21 of the Act Referred;
38. Considering, however, that it will be for the Decree laid down in the V of Article 21 of the Act to determine a period of conservation which reconciles, on the one hand, the need to identify the authors of offences and, on the other hand, to seek the Educational and moral rehabilitation of juvenile offenders;
Respect for the presumption of innocence:
39. Considering that Article 9 of the 1789 Declaration states: Any man being presumed innocent until he has been found guilty, if it is deemed necessary to arrest him, any rigor that would not be necessary to ensure his Person must be severely punished by law " ;
40. Considering, first, that the registration of personal data in treatments of the nature of those referred to in Article 21 of the law referred to does not by itself affect the principle of the presumption of innocence ;
41. Considering, in the second place, that in the event of a decision to relax or to acquit definitively, the personal data concerning the persons concerned is erased; that, if the prosecutor of the Republic may prescribe the maintenance thereof " For reasons relating to the purpose of the file ", this exception to the general rule of erasure may be justified only by public policy requirements which are appreciated by the judicial authority; that the decision of acquittal is referred to Or acquittal in file;
42. Considering, in the third place, that in the event of a decision of no-place or of any further classification, the personal data concerning the persons concerned shall be kept unless the public prosecutor orders the deletion thereof; that, if it does not Does not, the decisions of the non-suit and, where they are motivated by an insufficiency of charges, the subsequent rankings are the subject of a statement in the file; that it will thus be up to the judicial authority to assess in each case, account On the basis of the reasons for the decision, whether or not the requirements of public order justify the maintenance of the data in question;
43. Considering, finally, as mentioned above, that any person listed in the file should be able to exercise his right of access and rectification of the data concerning him under the conditions laid down in Article 39 of the Law of 6 January 1978 Above;
On the principle of equality:
44. Considering that under Article 21, the victim may object to the retention in the file of the nominative information concerning him as soon as the author of the facts has been definitively convicted; that the requesting senators cannot Effectively invoke, against this provision, any breach of the principle of equality;
As to the jurisdiction of the legislator:
45. Considering that, far from having disregarded the scope of its jurisdiction, the legislator has accompanied the provisions criticised for details, some of which fall within the scope of the regulatory authority and which, moreover, have so far been treated as such;
46. Considering that it follows from all the foregoing that, subject to the reservations set out in recitals 26, 34, 35, 38 and 43, Articles 21 and 25 are not contrary to the Constitution;
On Article 28:
47. Considering that Article 28 inserts in the Code of Criminal Procedure article 706-47-1; that under the first three paragraphs of the new article: " The judicial police officer, acting in the course of the investigation or on letters rogatory, may To carry out any person against whom there are serious or consistent evidence of rape, sexual assault or sexual assault as provided for in Articles 222-23 to 222-26 and 227-25 to 227-27 of the Penal Code, to a review Medical and blood-taking to determine if this person is not suffering from a sexually transmitted disease. The doctor, nurse or person authorized by the provisions of the Code of Public Health to carry out the acts reserved for those professionals, which is required for that purpose by the judicial police officer, shall endeavour to obtain the Consent of the person concerned. At the request of the victim or where his interest justifies it, this operation may be carried out without the consent of the person concerned on written instructions from the public prosecutor or the investigating judge who are placed on the Procedure " ; that the fourth paragraph of new section 706-47-1 provides that the result of the screening is brought to the knowledge of the victim through a physician; that the fifth paragraph punishes the refusal to be screened;
48. Considering that, for the authors of the two references, those provisions would disregard Articles 8 and 9 of the 1789 Declaration because of the list of offences established, in their view, too extensively by the first paragraph of the new article 706-47-1 of the Code of Criminal Procedure; that the obligation of a medical examination and blood-taking would be excessive at the stage of the preliminary investigation; that there would be no justification for a blood sample to be taken at the request of the victim without the Consent of the person concerned; that, in the case of an infringement of individual liberty, the judicial authority cannot, according to the referral, confine itself to ratifying the request of the victim; that the obligation to submit to a medical examination and to a Blood-taking would disregard the rights of the defence, the principle of fair trial, and " Equality of arms " Between the author and the victim;
49. Considering, first, that the provisions criticised provide, in the interest of the victim of a rape, an assault or a sexual assault, the possibility of a simple medical examination and a simple blood sampling A person against whom there are serious or consistent indications of having committed one of the acts referred to in Articles 222-23 to 222-26 and 227-25 to 227-27 of the Penal Code; that, without the consent of the person concerned, the operation cannot be On the written instructions of the public prosecutor or the investigating judge, and only at the request of the victim or where his interest justifies it, in particular, in the latter case, where the victim is a minor; In those circumstances, the constraint to which the person concerned is subjected entails no rigour which would not be necessary in the light of the other constitutional requirements in question and, in particular, in accordance with the eleventh paragraph of the Preamble of the 1946 Constitution, the protection of the health of the victim; that the medical examination and the blood collection do not infringe the rights of the defence, the requirements of the fair trial, nor the presumption of innocence ;
50. Considering, second, that the list of offences set out in the first paragraph of new Article 706-47-1 of the Code of Criminal Procedure is not vitiated by any manifest error in relation to the objective assigned by the legislator;
51. Considering, finally, that it follows from the very wording of the third paragraph of new Article 706-47-1 of the Code of Criminal Procedure that the judicial authority will have discretion when the victim requests that a review be carried out In particular, where the nature of the offence does not entail a risk to the health of the victim, not to respond to the victim's request;
Sur Section 30:
52. Considering that this article inserts in particular in the Code of Criminal Procedure a Article 55-1 worded as follows: The judicial police officer may carry out, or have to carry out under his control, any person who may provide information On the facts in question or on any person against whom there are one or more plausible reasons for suspecting that it has committed or attempted to commit the offence, to the external sampling operations necessary for the undertaking Technical and scientific examinations of comparison with the traces and indices taken for the purposes of the investigation. It shall carry out, or shall carry out under its control, the signalling operations necessary for the feeding and consultation of the police files according to the rules specific to each of these files. The refusal to submit to the collection operations ordered by the judicial police officer shall be punishable by one year imprisonment and a fine of EUR 15 000 " ;
53. Considering that the applicants submit that these provisions are imprecise; that they undermine the individual's freedom and the inviolability of the human body; that by submitting to the collection operations all " Person May provide information ", they are unaware of the presumption of innocence; that the penalty provided for refusal to submit to the levy is disproportionate;
54. Considering that the contested provisions are formulated in fairly clear and precise terms to satisfy the requirements of Article 34 of the Constitution; Persons who may provide information on the facts in question " Are Those who are already required to appear before the judicial police officer under Article 62 of the Code of Criminal Procedure; that it follows from the provisions of Article 706-54 of the Code of Criminal Procedure, as follows: 29 of the law referred to, that the genetic fingerprints of such persons may not be registered, therefore, a fortiori preserved, in the national automated DNA fingerprinting file; that, in those circumstances, such persons Are not defined too imprecise or subject, as a result of the new obligation imposed on them by the impugning article, to unnecessary rigour within the meaning of Article 9 of the 1789 Declaration;
55. Considering, as it appears from its very words, informed by parliamentary debates, that the expression " External sampling " Refers to a collection that does not involve any internal body intervention; therefore, it will not include any Painful, intrusive or attentive process to the dignity of the persons concerned; the fact that the external levy does not affect the individual freedom of the human body is therefore lacking in fact; The person concerned; finally, the collection being carried out in the course of the investigation and in view of the manifestation of the truth, it does not impose on the " Person against whom there is one or more plausible reasons for suspecting that it has committed Or attempted to commit the offence " No rigor that would not be necessary;
56. Considering that external levies do not affect the presumption of innocence; that they may, on the contrary, establish the innocence of the persons concerned;
57. Taking into account, finally, that, in the absence of channels of execution of the levy and taking into account the gravity of the facts likely to have been committed, the legislator did not set a disproportionate quantum for the refusal to levy; Shall, however, be a member of the criminal court, at the time of the imposition of the penalty for that refusal, to proportionate the latter to that which could be imposed for the crime or the offence at which the levy was requested; that, Under that reservation, section 30 is not contrary to the Constitution;
On section 50:
58. Considering that this article inserts Article 225-10-1 into the Penal Code as follows: The fact, by any means, including by a very passive attitude, of proceeding publicly to the racolage of others with a view to inciting it to sexual relations in Exchange of remuneration or a promise of remuneration shall be punishable by two months' imprisonment and a fine of EUR 3 750 ' , and that it also supplements Article 225-12-1 of the Code by a paragraph under which: " Is punishable by the same penalties To solicit, accept or obtain, in exchange for remuneration or a promise of remuneration, sexual relations on the part of a person who engages in prostitution, including on an occasional basis, when that person presents A particular vulnerability, apparent or known to the perpetrator, due to illness, infirmity, physical or mental impairment or pregnancy " ;
For new section 225-10-1 of the Criminal Code:
59. Considering that the authors of the two references are reproaching the new Article 225-10-1 of the Penal Code to infringe the principles of the necessity and the legality of the penalties; that it would also, in their opinion, disregard the principle of the dignity of the Human person;
60. Considering that it is open to the legislator to provide for new offences by determining the penalties applicable to them; that, however, it is incumbent upon the legislator to ensure, in so doing, the conciliation between the requirements of public order and the Guarantee of constitutionally protected rights; also, under Article 8 of the 1789 Declaration, respect the principle of the legality of penalties and the principle of necessity and proportionality of penalties; Sanctions;
61. Considering, first, that public soliciting is likely to result in public order disturbances, in particular for peace, safety and public safety; that by depriving the pimping of profit sources, the repression of The creation by the legislator of a tort of public soliciting does not therefore come up against any rule or principle of constitutional value;
62. Considering, second, that the principle of legality of penalties is not infringed by the provisions criticised, since they define in clear and precise terms the offence of public soliciting;
63. Considering, finally, that the penalties provided for in the new Article 225-10-1 of the Criminal Code are not manifestly disproportionate; however, it will be for the competent court to take into account, in sentencing, the The fact that the author has acted under threat or by constraint; that, under this reservation, the criticised provision is not contrary to the principle of the need for penalties;
As for the new paragraph added to Article 225-12-1 of the Criminal Code :
64. Considering that, according to the requesting senators, this provision would disregard the principle that no one can be punished except for his own fact and that that the definition of the crimes and offences must contain an intentional element ;
65. Considering, on the one hand, that the offence is constituted only if the vulnerability of the prostituting person is apparent or known to the author; that, on the other hand, that vulnerability is precisely defined by its character " Particular " And by Whether it is due to illness, physical or mental impairment or pregnancy; that, as a result, the two principles of constitutional validity invoked by the petitioners are respected in this case; and
On section 51 :
66. Considering that Article 51 of the Act is referred to in Article 225-10 of the Criminal Code for the purpose of suppressing the act by anyone acting directly or by person interposed, To sell, lease or keep at the disposal of any One or more persons, vehicles of all kinds knowing that they will engage in prostitution " ;
67. Considering that, contrary to the statements contained in the two references, these provisions in no way prohibit persons who engage in prostitution from acquiring and using a vehicle; that they do not infringe on freedom To undertake vehicle sales and rental services, which is limited in its ability to contribute, knowingly, to unlawful or public order activities;
Article 53:
68. Considering that this article inserts articles 322-4-1 and 322-15 -1 into the Penal Code; that the first of these articles provides that: The establishment of a meeting place, for the purpose of establishing a dwelling, even on a temporary basis, on land belonging to the A municipality which has complied with its obligations under the departmental scheme provided for in Article 2 of Law No. 2000-614 of 5 July 2000 on the reception and housing of Travellers or not registered in that scheme, To any other owner other than a municipality, without being able to justify its authorisation or that of the holder of the right to use the land, shall be punished with six months' imprisonment and a fine of EUR 3 750. -Where the installation has been carried out by means of motor vehicles, they may be seized, with the exception of vehicles intended for habitation, for confiscation by the criminal court. ' ; that under the new section 322-15 -1 of the Penal Code: Physical persons who are guilty of the offence provided for in Article 322-4-1 shall be liable to the following additional penalties: - 1 ° The suspension, for a period of up to three years, of the driving licence; - 2 ° confiscation Of the motor vehicle (s) used in the commission of the offence, with the exception of vehicles intended for habitation " ;
69. Considering that, according to the honourable Members and Senators, the measures thus provided for bear a disproportionate infringement of the rights of the Travel people " Because of the restrictions they impose on their way of life; The suspension of driving licences and the seizure of vehicles used to trace the caravans; that the provisions criticised would also disregard the principle that the definition of offences and penalties must include an element Intentional, since some of the occupants of the land may not be aware of the ownership of others without authorization;
70. Considering that the prevention of infringements of the right of property and public order are necessary for the preservation of principles and rights of constitutional value; that it is, however, for the legislator, however, to provide for the repression of such To ensure conciliation between these constitutional requirements and the exercise of constitutionally guaranteed freedoms, including the freedom to go and come, respect for private life and the inviolability of the home And, having regard to its objectives, it must also establish, in accordance with the constitutional principles, the rules on the determination of crimes and offences, as well as the penalties applicable to them;
71. Taking the view, first, that the legislature did not err in manifest error in the conciliation which it belonged to it to operate in the present case between, on the one hand, the protection of property and the safeguarding of public order and, on the other, the exercise Constitutionally protected freedoms;
72. Considering, second, that, in the absence of a clear disproportionality between the infringements and the sanctions concerned, it is not for the Constitutional Council to substitute its assessment for that of the legislator; that in view of the nature of the The legislature did not disregard the principle of the need for penalties by providing for the additional penalties for the suspension of driving licences for a maximum period of three years and the confiscation of motor vehicles Used to commit the offence, with the exception of those intended for habitation;
73. Considering, in the third place, that the occupation of the ground of another makes the will to commit the offence likely; that the conviction of all the unlawful occupants of the ground under the conditions laid down by the contested provision Is not contrary to Article 9 of the Declaration of 1789 as soon as the general principles of criminal law laid down in Articles 121-3 and 122-3 of the Criminal Code, which specify the general principles of criminal law, apply in full respect of the rights of the defence "There is no crime without intent to commit it." And " It is not criminally responsible to the person who justifies believing, through an error on the right that it was not in a position to avoid, to be able to legitimately perform The act " ;
74. Considering, finally, that the distinction made by the article criticised between the municipalities which have complied with the obligations imposed on them by the abovementioned Act of 5 July 2000 on the reception and housing of Travellers and the municipalities which have Neglected to do so based on objective and rational criteria in direct connection with the aim of the legislator in order to welcome the Travellers under conditions compatible with public order and the rights of third parties; It is therefore wrong for the applicants to submit that the criminalisation criticised would be contrary to the principle of equality before the criminal law;
75. Considering that it follows from all the foregoing that, subject to the reservation set out in recital 73, Article 53 is not contrary to the Constitution;
On Article 64:
76. Considering that Article 64 inserts a section 2 ter in the Penal Code entitled " From the exploitation of begging " ; that the exploitation of begging is, in particular, defined, under the terms of the new Article 225-12-5 of the Penal Code, by the fact " Share the benefits " ; that the authors of both remedies argue that this provision defines an offence which is unintentionality and would therefore be contrary to Articles 8 and 9 of the 1789 Declaration;
77. Considering, however, that the general principle of criminal law laid down in Article 121 (3) of the Criminal Code, which states that 'There is no crime without intent', will apply in full to the definition criticised in respect of the rights of the defence. Commit it " ; that, subject to this reservation, the impugning provision does not disregard Articles 8 and 9 of the 1789 Declaration;
On Article 65:
78. Considering that this article inserts article 312-12-1 in the Penal Code as follows: The fact, in a meeting and in an aggressive manner, or under the threat of a dangerous animal, to solicit, on the public road, the handing over of funds, values or a Well, is punishable by six months' imprisonment and a fine of EUR 3 750 ' ;
79. Considering that, according to the honourable Members and Senators, this provision allows for the suppression of conduct which already falls within the scope of the offence of extortion as defined in Article 312-1 of the Criminal Code; Double Criminalization " Would be contrary to the principle of need for penalties;
80. Considering that the offence defined in Article 65 is intended, by its constituent elements, to act separately from those referred to in Article 312-1 of the Criminal Code; that the plea alleging double criminality is in fact missing;
On the article 75:
81. Considering that Article 75 amends the order of 2 November 1945 concerning the conditions of entry and residence of aliens in France, which it adds, in particular, to the last paragraph of Article 12, a sentence worded as follows: ' The map of Temporary stay may be withdrawn abroad subject to criminal prosecution on the basis of Articles 225-4-1 to 225-4-4, 225-4-7, 225-5 to 225-11, 225-12-5 to 225-12-7, 311-4 (7 °) and 312-12-1 of the Penal Code " ;
82. Considering that this provision is grieved by the petitioners to place aliens under an arbitrary regime, as well as to undermine the presumption of innocence, the rights of the defence and the right of everyone to a life Normal family;
83. Considering that no principle, no more than no rule of constitutional value, ensures that foreigners have general and absolute rights of residence in the national territory; that, therefore, the legislator can, without knowing any right No principle of constitutional value, make the maintenance or grant of a temporary residence permit conditional on the absence of a threat to public order; and
84. Considering that, in view of the nature of the offences covered, which are all prejudicial to the public order, it was open to the legislature to allow the removal of the temporary residence card from persons subject to prosecution by that chief; that, For the application of the impugned provision, informed by parliamentary debates, however, it will be appropriate to hear " Persons subject to prosecution " The only foreigners who have committed the facts that expose them to one of the convictions Under the provisions of the Penal Code referred to in section 75 of the law referred to;
85. Considering that, if the principle of the presumption of innocence cannot be usefully invoked outside the law-enforcement field, neither the principle of the rights of the defence usefully invoked against the withdrawal of the residence card for reasons of order Public, which is not a sanction but a police measure, the person concerned will be able to submit his observations on the proposed withdrawal under the conditions laid down in the common law relating to the procedure Administrative;
86. Considering, however, that it will be for the competent authority, when considering the application of the impugned provision, to take into account the right of everyone to lead a normal family life;
87. Considering that it follows from the foregoing that, subject to the reservations set out in recitals 84, 85 and 86, Article 75 is not contrary to the Constitution;
On Article 76:
88. Whereas under the first two paragraphs of Article 76 of the Act referred to: " Unless its presence constitutes a threat to public order, a temporary residence permit may be issued to a foreign national who files a complaint against a A person who is accused of having committed the offences referred to in articles 225-4-1 to 225-4-6 and 225-5 to 225-10 of the Penal Code or testifying in criminal proceedings concerning a person prosecuted for the same offences. This provisional authorisation to stay opens the right to the exercise of professional activity. -In the event of a final conviction of the person concerned, a resident card may be issued to a foreign national who has filed a complaint or testifying. ;
89. Considering that, according to the senatorial referral, these provisions would affect the individual freedom of foreigners who engage in prostitution;
90. Considering that, apart from the granting of the work permit, the contested provisions do not create any new rights for the benefit of foreigners and subject them to any new obligation; nor do they confer on the authority Of the powers which it does not already have; that they are, in consequence, devoid of any normative character and thus cannot usefully be argued for unconstitutionality;
91. Considering that the grant of a work permit to the aliens concerned does not affect their individual liberty or any other of their constitutionally guaranteed rights;
On Article 96:
92. Considering that the II of Article 96 introduces Articles 3-1 and 3-2 into the aforementioned Act of 12 July 1983 regulating private activities for monitoring, guarding and transporting of funds;
93. Considering that according to the new Article 3-1 of the Law of 12 July 1983: The natural persons carrying on the activity referred to in Article 1 of Article 1 may carry out the visual inspection of hand luggage and, with the consent of their Owner, in search of them. -The natural persons carrying on the activity referred to in 1 ° of Article 1, specially empowered for that purpose and approved by the prefect of the département or, in Paris, by the prefect of the police under the conditions laid down by decree in the Council of State, May, in the event of special circumstances relating to the existence of serious threats to public safety, proceed, with the express consent of the persons, to palpations of safety. In this case, the palpation of security must be made by a person of the same sex as the person who is the object of the palpation. These particular circumstances are recognised by a decree of the prefect who sets the duration and determines the places or categories of places in which the checks can be carried out. This Order shall be communicated to the Public Prosecutor " ;
94. Whereas the new Article 3-2 of the said Act states: For access to the premises in which a sporting, recreational or cultural event is organised, bringing together more than 1,500 spectators, the natural persons exercising The activity mentioned in 1 ° of Article 1, approved by the prefect under the conditions laid down by decree in the Council of State, as well as those, members of the order service assigned by the organiser to the security of the sporting event, recreational Under the provisions of Article 23 of Act No. 95-73 of 21 January 1995 of orientation and programming relating to security, holders of a state diploma and approved by the prefect, may proceed, under the supervision of a Judicial police officer and with the express consent of the persons, to palpations of safety. In this case, the palpation must be carried out by a person of the same sex as the person who is the object of the palpation. -They may, as well as the municipal police officers assigned to the decision of the mayor for the security of the demonstration, carry out a visual inspection of the hand luggage and, with the consent of their owner, to search them. -In Paris, the powers conferred on the prefect by this article shall be exercised by the prefect of police " ;
95. Considering that the authors of the two references adversely affect these provisions to infringe on individual liberty and to be formulated in a way that is too imprecise;
96. Considering, as is apparent from the very terms of the impugned provisions, that, in its enactment, the legislator has laid down clear and precise rules; that, as a result, it has not remained within its jurisdiction;
97. Considering that the new Article 3-1 of the Act of 12 July 1983 imposes a strict authorisation procedure with a view to enabling private security personnel to participate in control operations; that they cannot proceed without the Consent of the person concerned, as well as the visual inspection of hand luggage; that the operation in the context of which they can practice, except for the refusal of the persons concerned, safety palpations or searches of hand luggage may not be Ordered by the Prefect, due to serious threats to public safety and special circumstances, for a specified time and place; that the arrangements thus provided for shall not affect individual liberty; Such an administrative police measure, the necessity of which will be monitored by the administrative court, is by itself not contrary to any principle, nor to any rule of constitutional value;
98. Considering that the same applies to the new Article 3-2 of the Act of 12 July 1983; that, in fact, access to the premises where major sporting, cultural and recreational events take place justifies special surveillance measures for Protect the physical security of the participants; none of the measures provided for in that article affect individual liberty;
On Article 113:
99. Considering that this article inserts an article 433-5-1 in the Penal Code as follows: The fact that, during a demonstration organised or regulated by the public authorities, publicly outrages the national anthem or the tricolor flag is punishable EUR 7 500 fine. -When committed in a meeting, this offence shall be punishable by six months' imprisonment and a fine of EUR 7 500 ' ;
100. Considering that the applicants consider these provisions to be " A serious attack on the freedom of expression, conscience and opinion " ; they are also contrary to " The principle of legality of offences and penalties And the principle of the need for sanctions " ;
101. Considering, on the one hand, that Article 10 of the 1789 Declaration provides that " No one shall be concerned for his or her opinions, even religious, provided that their protest does not disturb the public order established by law " ; and under section 11 Of the Declaration: " The free communication of thoughts and opinions is one of the most precious rights of man: any citizen can therefore speak, write, print freely, except to respond to the abuse of this freedom in cases determined by the Law " ;
102. Considering, on the other hand, that under the second paragraph of Article 2 of the Constitution " The national emblem is the tricolour flag, blue, white, red " ; and to those of its third paragraph: " The national anthem is La Marseillaise " ;
103. Considering, finally, that it is open to the legislator to provide for new offences by determining the penalties applicable to them; that, however, it is incumbent upon the legislator to ensure, in so doing, that the requirements of public order and Constitutionally protected freedoms guaranteed;
104. Considering that it is excluded from the scope of the article criticising the works of the mind, remarks made in a private circle, as well as acts carried out at events not organised by public authorities or not regulated by the They; that the expression " Demonstrations regulated by the public authorities ", informed by parliamentary work, must agree on public events of a sporting, recreational or cultural nature taking place in enclosures Subject to health and safety regulations by virtue of the number of persons they receive;
105. Considering that, in instituting such an offence, the legislator carried out the conciliation that it belonged to it to ensure between the constitutional requirements referred to above; that the penalty which it has fixed is not manifestly Disproportionate to the offence;
106. Considering that it follows from the foregoing that, subject to the reservation of interpretation set out in recital 104, Article 113 of the law referred to is not contrary to the Constitution;
On Articles 122 and 123:
107. Considering that Articles 122 and 123 of the Law referred to apply in New Caledonia and French Polynesia, respectively, of provisions similar to those of Article 3 thereof; that the applicant members of the House of Commons send them the same accusations; that, For reasons identical to those set out in respect of Article 3, the means so relied on must be rejected;
On Articles 141 and 142:
108. Considering that Articles 141 and 142 perpetuate in French Guiana and in the commune of Saint-Martin in Guadeloupe the derogations made applicable for five years in the overseas departments by the law of 11 May 1998 mentioned above; that in Under those provisions, the refusal to grant a residence permit to certain foreigners shall not be submitted for an opinion to the Committee on the residence permit provided for by Article 12c of the Order of 2 November 1945 and the action against a Arrest of a foreigner at the border does not have suspensive effect;
109. Considering that the applicants submit that, by perpetuating such a scheme, Articles 141 and 142 shall not be known " Constitutionally protected rights and guarantees, such as the rights of the defence And go beyond adaptations to The legislative regime of the overseas departments authorised by Article 73 of the Constitution;
110. Considering that the legislator has been able, to take into account the particular situation and the sustainable difficulties of the Department of French Guiana and, in the department of Guadeloupe, of the commune of Saint-Martin, in matters of international traffic Persons, maintain the derogating regime instituted by Articles 12 quater and 40 of the Order of 2 November 1945, without breaking the balance that the respect of the Constitution requires between the requirements of public order and The safeguarding of constitutionally guaranteed rights and freedoms; that the persons concerned will retain a right of judicial remedy against the administrative police measures; that they will, in particular, have the right to refer the case to the judge That the legislator has also not infringed the constitutional principle of equality in view of this particular situation, which is in direct relation to the objective which it has set itself to strengthen the fight against Illegal immigration; that such adaptations are not contrary to Article 73 of the Constitution;
111. Considering that there is no place for the Constitutional Council to raise ex officio any question of conformity with the Constitution,
Decides:

Article 1


Not contrary to the Constitution, subject to recitals 26, 34, 35, 38, 43, 57, 63, 73, 77, 84, 85, 86 and 104, the provisions of the law for internal security criticised by one or the other Referral.

Article 2


This decision will be published in the Official Journal of the French Republic.
Issued by the Council The Constitutional Court in its sitting of 13 March 2003, where: MM. Yves Guéna, Chairman, Michel Ameller, Jean-Claude Colliard, Olivier Dutheillet de Lamothe, Pierre Joxe, Pierre Mazeaud, Monique Pelletier, Dominique Schnapper and Simone Veil.


President,

Yves Guéna


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