Key Benefits:
Mr. Chairman, Ladies and Gentlemen The Constitutional Council, the Government's observations on the grievances developed by the referral to you under the law for internal security, call for the following replies.
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I. -On Section 3 of the Act
The Government only responds very partially to the grievances developed in the referral. In particular, the issues raised by the possibility of making requisitions are not the only criticism. That is to say, in particular, of the words at the end of the 4 ° introduced by the law in Article L. 2215-1 of the General Code of Local and Regional Authorities: ... And prescribe any useful measure until the infringement of public order has ceased." Phrase to which reference is made in the third paragraph for this 4 ° new in that " The prefect may enforce ex officio the measures prescribed by the decree he has enacted." On this point, the Government's observations are mute.
I-1. As regards, on the one hand, the requisition power, the Government's response is not convincing and remains silent on the serious questions raised by the expression " Any useful measure "
It is enlightening to read under the pen of Government A list of the many foundations under which prefects may make requisitions. The Minister of the Interior had indicated at the meeting on 16 January 2003 that this provision was necessary for " Give a solid legal basis to the requisition of the prefect " To deal with disaster-related crises
Or, it appears that these situations are already covered by the existing texts, as has been shown by recent developments in the field of serious environmental damage. The examples given by the Government do not show how this new power is needed. In particular, the requisition of certain undertakings for the cleaning of land after a " Rave party " Implies that, in general, this type of event takes place in the territory of a single municipality and that the surplus is It is difficult to see a situation responding to the extraordinary notion of exceptional circumstances.
It will be added that for the most serious situations, including threats related to terrorist activity, it is the national territory that Is in question and it is up to the Government to take any appropriate action in these circumstances. This is the case with the law of 3 April 1955 on the state of emergency extending, after its declaration by decree in council of ministers, the police powers of the prefects.
It must be said that the Government does not in any way characterize situations That the article criticised really means to apprehend and absolutely not demonstrate its necessity. Because of this imprecision, and while civil and individual liberties may be involved, the article in question is subject to censorship.
But there is more.
If the Government disappears on the different regimes allowing for the Requisitions, it is completely silent on the meaning and scope of the expression " Any useful measure " In relation to the infringement of public order.
That is to say its embarrassment.
In this very fuzzy notion, all the vices that the authors have Denounced in their referral. In the absence of intervention by the judicial authority, which is not foreseen in any way by the criticised text, this article cannot escape censorship. The argument that, within the framework of the administrative police powers, the legislator is not bound by any rule of constitutional value to provide for the intervention of the judicial authority appears to be at least paradoxical. The main criticism, in fact, is based on the fact that the very broad and imprecise definition retained by this article is likely to place an undue burden on the administrative police field, which would normally be the subject of the judicial police. If it is a matter of avoiding the creation of a roadblock, one can be found in the field of the administrative police. If it is a question of punishing those who would have committed an offence at such a dam, we are in the field of the judicial police. The first hypothesis comes under the powers of the prefect, the second of those of the public prosecutor.
In other words, this provision confers on the prefect the power to place under his sole authority police acts which are under the control of the prefect. Usually the supervisory authority of the judicial authority. For the proof that the words " Infringement of public order has ended " Can perfectly cover the search and punishment of offences committed or in the course of commission.
I-2. As regards, on the other hand, the power conferred by the article in the administrative court to impose a penalty payment, it poses a problem with regard to natural persons.
That, in a recent judgment, the Council of State, questioned by the Administrative tribunal in Toulouse, considered that the power of penalty was not applicable to natural persons since it " The approximation of the provisions of the Act of 8 February 1995 to Articles L. 911-1 et seq A code of administrative justice which they were not intended to create, against private persons who do not fall within their scope and for the performance of an obligation to pay, a penalty system that would replace or Would be in addition to the common law enforcement channels ". (EC 28 October 2002, Mr Walter and others, point 240088).
The article criticising, therefore, goes beyond the letter and the spirit of the code of administrative justice, to provide for a special administrative sanction regime. Of the penalty payment which, in addition to the common legal remedies, would constitute a singular punitive procedure which, in the end, could lead to the conviction of a natural person for a total amount exceeding the total amount of the fine provided for By the last paragraph of the article in question.
Of all these leaders, censorship is certain.
II. -On Article 11 of the Law
The Government claims, for the most part, that this provision, creating a new Article 78-2-2 in the Code of Criminal Procedure, responds to all the requirements laid down in your case-law More conventional and particularly by the decision of January 12, 1977.
In reality, it is clear that this is not the case.
The aforementioned decision of January 12, 1977, found that the text then submitted to your examination was prejudicial to the Essential principles on which the protection of individual freedom is founded by pointing, among other vices, " The very general nature of the cases in which these [control] powers could be exercised ... " (recital 5). If the authors of the reference can only associate themselves with any procedure aimed at facilitating the fight against acts of terrorism or particularly serious offences, it is by remaining vigilant to ensure that such an approach is not used as a means of As a pretext for more general measures that do not have the same justification.
If the text querels takes care to take back some of the guarantees determined by your case-law, and in particular the ab initio intervention of the authority Court, it remains that the assumptions in which such checks can be carried out are particularly broad and, in the reality of the facts, will make it possible to target any infringement, not even the requirement of gravity advanced by the Government, both in the debates in Parliament and in the observations.
It has been observed that the visa in Article 227-37 of the Criminal Code would make it possible to search any vehicle in which people will use drugs. One can imagine, for example, getting out of the discotheques or in some quarters how this will give rise to " Search campaigns ".
The targeting of Articles 321-1 and 321-2 of the Penal Code would allow for even more As long as this is the offence of recel. However, as the Court of Cassation notes, this text " Written in general terms does not distinguish between the different crimes and offences that led to the obtaining of the recessed ", which excludes only the citations (Crim. 10 July 1969, D. 1969, 546). It was thus found that the recosting could come from offences as varied as the misalignment of correspondence or a cheque payment without provision (Crim. 3 October 1972, D. 1972, 718), and that there is a recel even if the author of the original offence has not yet been convicted or not identified (Crim. November 9, 1965, D. 1966, 65).
It is to say that this opens a field for particularly ambitious and broad-based search campaigns in their comprehension.
It avoids a complementary double criticism.
On the one hand, and the It is difficult in these conditions for the judicial authority to be able to ensure the effective, permanent and direct control of such operations (Cass. Mixed House, 15 December 1988). The requirement, as laid down by your case-law with regard to the role of the judicial authority, is, of course, not merely a matter of appearance, but must be carried out in
. All the infringement of property, held by the criticised article makes it impossible to comply with this condition, constitutionally imposed.
On the other hand, and contrary to the Government's writings, the fact that the Offences revealed by a vehicle search will not result in the nullity of incident proceedings in all the principles of the criminal procedure. Although Article 78-2 of the Code of Criminal Procedure certainly provides for a provision of the same invoice, it is because of its general character specific to identity checks.
On the other hand, with regard to visits, Articles 706-24, 706-28 and 706-35 Codes, which tend to suppress acts of terrorism, narcotic trafficking and pimping, retain the principle of nullity of incident procedures.
It is clear from this comparison of two strong mechanisms Which the criticised scheme does not tend towards vehicle visits, which are specifically framed for the search for persons prosecuted in the context of the suppression of specific offences, but to make possible general checks of which The judicial authority will not be able to ensure true.
Under these conditions, there can be no doubt that the article criticized tends to make possible general searches of all vehicles and without the search for specific offences Is the limited framework placed under the direct and permanent control of the judicial authority.
Of all these leaders, censorship cannot be avoided.
III. -Article 12 of the Law
The Government's observations indicate that this is a special procedure for gross crimes and that, as a consequence, the provisions applicable to this phase of the procedure are This
of his text by the Government, aware of the constitutional defect affecting it, can no longer carry the conviction.
First, it will be noted that the provisions relating to the investigation of the explosion Under Chapter I of Title II of the Book I of the Code of Criminal Procedure, while the article criticised appears in Chapter III of the same title. Without express reference to Articles 53 to 74 of that Code, and in particular 56-1 to 57, Article 78-2-3 in question cannot be subject to the same guarantees.
Next, and for evidence, it is sufficient to note that Article 78-2 of the Code of Criminal Procedure subsequently Which the article querelle takes place expressly provides for the procedure for the intervention of the judicial judge. That, in the case of an explosion investigation, there would be nothing to do so under the control of that authority, as provided for in the residential visits to Article 706-24 of the Code of Criminal Procedure.
It is therefore assumed that by not providing, Expressis verbis, the intervention of the judicial authority, the criticised article disregard the constitutional principles that apply to the matter.
IV. -Article 13 of the law
The Government claims that this article falls within the framework of the administrative police, so that the subordinate and more limited role of the judicial authority is justified.
The demonstration still does not convince, above all, whether this mechanism is confronted with your case-law under which " The practice of generalised and discretionary identity checks would be incompatible with respect for freedom Individual " (Decision No. 93-323 DC of 5 August 1993, recital 9).
In the first place, one must question the presence in the Code of Criminal Procedure of an administrative police force, which is therefore placed under the authority of the Prefect, while the book Ier of this code, within which the article concerned is inserted, refers to the operations conducted by the judicial police officers, and under certain conditions the judicial police officers, under the authority of the prosecutor of the The Republic or the Judge of Education and Freedoms.
The inconsistency does not stop there, since the Government states that this device is not " Without analogy with the mechanism of the non-coercive preliminary investigation that permits Practice a house search ... " (page 12 of the Government's reply comments). By definition, however, preliminary investigations are the responsibility of the judicial police.
It follows that the defence of the Government seems singularly fuzzy.
It is clear that this article, like several other provisions of the Law, leads to permeable the border between the judicial police and the administrative police. The issue is not only that of the theory of law, but of the constitutional guarantees that these qualifications entail.
This is the protective logic of individual freedoms drawn by your decisions of 7 January 1977 and 19-20 January 1981, which would be called into question by the admission of such porosity between the notions of administrative police and judicial police. The necessary vigilance in this matter never fails to be recalled by the Court of Cassation. Thus, directly implementing your decision of 5 August 1993 (Decision No. 93-323 DC), the High Court held that " The new text does not authorise the checks carried out under the administrative police in the absence of Any substantive conditions likely to presume a threat to public order " (Civ. 2, 28 June 1995, Bechta).
However, as has been shown in the reference (page 12), a reading compared to article 78-2 of the Code of Criminal Procedure shows that none of the details to justify such checks are present.
To put it another way, the article criticises, as does Articles 11 and 12 of the law, to generalise vehicle searches without prescribed guarantees of identity checks.
Of these leaders, the censorship is Incurred.
V. -On Articles 21 to 25 of the Law
The Government's observations undertake, without convincing, to rewrite the articles in question in order to attempt to escape them from Invalidation. On the other hand, some of the provisions of these articles have been silenced while they have been the subject of specific criticism in the reference, thus showing the embarrassment of the Government
Authors of the referral are satisfied to read that the law of January 6, 1978 will be fully applicable to them; even if it had been, no doubt, simpler to predict it at the outset ...
This precision cannot, however, be sufficient to save the mechanism put In place by the articles criticised and in particular with regard to the principle of finality of which respect is appropriate to guarantee individual liberty and privacy.
It must be held that, in this respect, and contrary to the allegations of the Government, none of the objections raised by the CNIL in its deliberation of 19 December 2000 on the said file " STIC " And in its deliberation of 24 October 2002 on this Law, shall not be the subject of explanations or justifications Satisfactory in view of the dangers that these files, with very broad content, can make for individual freedoms.
If, as indicated, these are files intended to facilitate judicial investigations (comments by the Government, Page 16), while maintaining a legal history is attempted to add, nothing from the point of view of that purpose justifies the option envisaged for their consultation under conditions as open as those provided for in Article 13 of the Legislation.
On the one hand, the list of administrative investigations that may warrant the consultation of these files will be provided by Order in Council. So that at this moment we don't know whether they will be respectful of the purpose of these files. By referring in this respect to the regulatory authority on this point, the legislator, in any event, has remained within its jurisdiction as defined by section 34 C.
Investigations that will not be placed under the jurisdiction of the judicial
. On the other hand, and the Government does not say a word in this regard, there is nothing in the light of the purpose of a file facilitating judicial investigations to base its access for the processing of applications for accession to French nationality or for renewal Of the residence permit. The filiation of these measures with the programmes of certain political parties must, without doubt, explain the Government's silence on these paragraphs of Article 13.
Of all these leaders, censorship cannot be Avoided.
VI. -On Article 30 of the Law
It is not really a reply to the complaints developed in the reference. But, above all, the Government is struggling to justify the fact that the mere witness can be subjected to such a binding measure.
The status of a witness is opposed to the fact that he is treated as a person against whom serious clues and They would exist. Article 62 of the Code of Criminal Procedure implicitly shows this. This will also allow the circumvention of Article 105 of the Code of Criminal Procedure, which prohibits the persons against whom there are serious and corroborating evidence of having participated in the facts before the investigating judge. Not be heard as witnesses.
The article criticised by holding the witness among the persons likely to be subject to these external levies, the legal scope of which is identical to internal bodily investigations, disregards the Large balances of criminal procedure and the principle of presumption of innocence.
VII. -Article 50 of the Law
The Government's arguments fully justify the grievances against this provision.
In the first place, the argument that a " Attitude even passive " Meets the requirements of the The principle of the legality of offences and penalties and makes it possible to avoid any arbitrary application does not stand up to scrutiny for a single moment.
By definition, encouraging others to do anything, including sexual relations against Compensation, presupposes a positive act and therefore an active attitude. As the dictionary Le Petit Robert indicates, the passive state is characterized by the fact of suffering, testing. This is the case of a person who is merely undergoing, not showing any activity, of any initiative (an edition updated in June 2000).
The Court of Cassation held that the only fact of displacing on the carriageway and addressing Motorists or pedestrians who have stopped spontaneously at their height without being invited to do so may not, on the other hand, constitute an active racolage offence (Crim. 25 June 1996).
In addition, such a definition can justify incessant and unjustified identity checks. The same will apply to vehicle searches. However, as has already been pointed out, you have considered that ' The practice of controlling generalised and discretionary identities would be incompatible with respect for individual freedom " (Decision of August 5, 1993, supra).
It is simply Impossible to consider that the definition of the new offence covers a sufficiently precise situation with regard to the principle of legality. It can only lead, on the contrary, to arbitrary applications according to the varying assessment of the judicial police officers and according to circumstances outside the definition of the offence. It is easy to imagine that the person who is a notoriously prostitute will be under the pressure of such a vague definition.
It will be added that the Government is trying to save the provision that prostitutes who engage in this activity Have more aggressive and outrageous behaviour (page 23 of observations). Again, such behaviour is anything but passive and reveals a more than active attitude.
Second, on the principle of necessity as laid down in Article 8 of the 1789 Declaration and the criticism of manifest disproportion, the Government Ratifies, paradoxically but necessarily, the thesis of the referral.
The only justification provided to justify the introduction of a new vague and imprecise offence in the Criminal Code, and while there is still another offence of a nature Contraventional to very close terms, therefore, takes the fact that persons engaged in prostitution and coming from foreign countries would be more " Aggressive and outrageous ".
First, it will be noted that it is not acceptable to designate People who are often victims of criminal networks, sometimes being reduced to the state of slavery. That their allegedly aggressive behaviour deserves less entry into the category of offenders than to elicit help and assistance.
But, above all, the implication of the Government's implicit reasoning is that The infringement of Article R. 624-8 of the Criminal Code will be for prostitutes' ", obviously of French nationality, whereas the offence of the new Article 225-10-1 of the Penal Code would be applicable to prostitutes" New " Of nationality Foreign. This reading expressly proposed by the Government in its defence writings, and which it had not dared to express also assiduously in the debates, is contrary to the principle of equality under which one cannot discriminate between the French and the Rights and fundamental freedoms. Your case law is quite plentiful in this respect so as not to recall it.
Such a logic is unbearable and unacceptable in a state of law.
It will be added that if there are attacks on people engaged in prostitution, Theft, extortion, extortion, the arsenal of our repressive law includes enough offences to deal with such abuses.
Finally, the Government is careful to respond to the argument that this new offence In reality, it will be possible to place in police custody certain prostitutes according to the good will of law enforcement.
The Criminal Code includes two offences of the same meaning, but one of which is wider, vague and imprecise, will make it possible to model Not only the suppression of behaviour according to arbitrary applications, but also to subject them to different criminal procedure regimes. In the context of the new offence, it is the placement in police custody that will justify this characterization rather than that contained in Article R. 625-8 of the Penal Code.
However, from the point of view of the need for penalties, this construction cannot Satisfy. As has been amply demonstrated, as the Government acknowledges, Article R. 625-8 of the Criminal Code already allows for the suppression of provocative attitudes and the administrative police makes it possible to ensure public tranquillity and, in particular, That of the residents of certain neighbourhoods.
From the point of view of public order, this new offence brings nothing. On the other hand, it submits to a stricter criminal procedure regime certain persons according to assessments which may be totally arbitrary.
The criteria set out in your decision of 16 July 1996 are here fully met and The invalidation of the criticised article would in no way disregard Parliament's power of assessment, since it would be necessary to censor a manifest error of assessment, as you have decided very recently (Decision No 2003-466 DC of the 20 February 2003).
In the third place, the Government pretends not to understand how this provision could violate the principle of human dignity.
The reality of criminal networks that reduce to the rank of slaves some of the Prostituted, cannot be, at the time when the scope of the criticised provision is being discussed, ignored.
The arbitrary detention of persons under these networks will make them suspect in the eyes of their torturers, For example, revealed certain names or facts to the police authorities. They will then pose a risk to these criminals and may face reprisals that can go as far as inhuman and degrading treatment. Unfortunately, these last few years have shown that these are assumptions.
More seriously, if they appear to be a serious threat to the network, these people, who are enslaved, may be sent to another Countries to continue prostitution or even their state of origin. They will then be exposed to even more serious inhuman and degrading treatment, if one can imagine a degree in horror or even death.
In other words, to satisfy public tranquillity, and while our right offers all the In order to meet the expectations of local residents, we are taking the risk of subjating prostitutes to inhuman and degrading treatment who are victims of criminal networks for whom the life of their neighbour does not count. It will be added that today many humanitarian associations offer assistance and assistance to these people and can sometimes extract them from this mental and physical suffering. It is this small glimmer of hope that we also risk reducing to nothing.
From the point of view of human dignity, the fact that the atrocities would take place outside the national territory obviously does not change the strength of the reasoning
Incantatory provisions, which bring nothing to the public order, and the safeguarding of dignity and human life, it appears that, in a state of law, the choice does not suffer any hesitation.
Of all these leaders, censorship is Incurred.
VIII. -On Article 51 of the Law
In an attempt to save this provision, the Government makes a comparison with hotel proxies. This comparison ratifies the dissertation argument.
The material element of the offence of procuring by provision of premises is to accept or tolerate habitually that one or more persons engage in prostitution within the The establishment or its annexes, or seek clients for prostitution. In order to enter the process of conviction, the judge must clearly identify the constituent elements, and particularly the habit which constitutes an essential element (Crim. 18 April 1989, D. Penal, 1990, No. 53).
It is a question of repressing, in the case of assimilation by assimilation, that which, whether natural person or legal person, takes advantage of the prostitution of others even indirectly or facilitates it in Acting as a helper or an intermediary.
Nothing of this kind in this case.
Selling a car, knowing that its purchaser will use it for prostitution, does not erect the vendor, car dealership or individual, in Occasional auxiliary to the prostitution of others. To prohibit this sale constitutes, from the point of view of freedom to undertake, an unjustified limitation as long as the purchaser proposes to use that property for a lawful activity.
More fundamentally, the fact of selling a movable property of Everyday consumption of a person who has a free activity, which is still prostitution, cannot transform anyone into a pimp. Admit, which the Penal Code has never done, that the most common acts of everyday life become forbidden to the person who is prostituting themselves, can only lead to their social isolation and to the marginality that often results. For, in addition, a car may well serve as a part of prostitution and, on the other hand, for private travel and, why not, for family travel.
The measure criticised would prevent the exercise of this freedom to go And would be more fundamentally a hindrance to the individual's personal freedoms.
To all say, it is imagined that crime networks and pimps will be able to provide motor vehicles of all others Manners. As they did not themselves engage in prostitution, they would also not be affected by this new offence. The article querying is all the more useless because, in order to circumvent the measure, it will be enough to acquire a vehicle through a nominee or in a border state. The networks will have no difficulty in achieving this, and the prostitute will often be the only one affected.
This unnecessary measure is an unjustified violation of several fundamental rights and freedoms and is subject to censorship.
IX. -On Article 65 of the Law
The Government does not show how the new offence is different from that of extortion nor is it strictly necessary.
On the one hand, you do not see, or the Ratio legis or case law, in which case the offence of extortion of funds could not be carried out on the public road. On the other hand, no details are provided on the " Intimidation attitudes that would not necessarily fall under the offence "
It is recognized, however, that the new offence will allow for the custody of the Persons engaged in begging. There are two things: where we are in the presence of an extortion of funds and this is fully justified, or we are confronted with hyperactive begging and that is not necessary.
As to the proportionality of the penalties, if Government is trying to respond to Article 64 of the criticised law, it remains silent with regard to Article 65.
On reading the Government's observations, we will recall the words of Advocate General Bonalt. In his speech at the formal sitting of the Court of Appeal of Paris on October 16, 1889, on the " Begging, means of preventing and suppressing it " : " Poverty is neither a crime nor a crime, it is a misfortune for The one it reaches; or, we do not punish the misfortune, it is relieved when we have not been able to prevent it. " In the 21st century, these strong words seem to hold all their news.
Words that also apply to articles 50 and 51 of the law criticised.
XI. -Article 113 of the Law
The examples advanced by the Government in defence of this provision cannot prevail.
On the one hand, the authors of the referral note that the Government confirms Implicitly, but necessarily, their arguments by taking care to quote Article 440 of the Code of Military Justice. This provision responds to the specific statutes of military personnel. However, as the Government cannot ignore, these officials have a general status determined by the law of 13 July 1972, which limits the exercise of several constitutionally established freedoms. So, " The armed force being essentially obedient " (Decree of 12 December 1790), the military had a very limited freedom of expression, limited freedom of association, a right to strike and a non-existent right to
. The measure criticised by the example of a statute which, for obvious reasons, limits fundamental rights and freedoms, the Government clearly demonstrates that this is a particularly attentive provision to freedom of expression
It will be added that section 440 of the Code of Military Justice does not cover the national anthem. It is to be said that, even under a regime that derogates from common law, it has become less credible to establish such a difficult assumption that is difficult to discern.
It is hoped that, in the spirit of the Government, citizens will not Are not intended, one day, to regret with Racine that: " The glory of obeying is all that is left to us. "
On the other hand, it is enlightening to note that the achievement of advanced public order is absolutely not characterized. In the case of an infringement of the freedom of expression and of the communication of opinions, this precise characterization is essential.
The other examples are the obvious counter-test. The destruction of public property, in particular, involves specific material acts which, in addition, may be feared in certain circumstances to interrupt or make more difficult the continuity of the public service to which the building or The public good at issue is affected.
Nothing of this kind in this case.
As for the contempt that exists in the Criminal Code, it is certain that its definition was not included in the criticized article. However, from the point of view of the legality of offences and penalties, one cannot refer to the constituent elements of another offence, would have the same title, since it is aimed at different
. The image, ... can be understood perfectly when a person is involved. These constituents are more difficult to characterize when it is a flag or an anthem. Unless, as the authors of the reference argue, by targeting the writings or the images, they intend to undermine the freedom of expression, including the creation of artists.
Finally, with regard to the reference to the case law of the A court of Cassation on the apology of crimes against humanity, it is hard to understand the link to the grievance.
Of all these leaders, censorship is incurred.
XII. -Articles 141 and 142
The Government's observations cannot be convincing.
In particular, if the abolition of an advisory procedure is possible after your case-law, it still needs to be Does not succeed in disregarding the principle of equality. In the present case, there is no reason why this consultation of the residence permit committee should be deleted on that part of the national territory.
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By these and all other reasons To deduct or supplement, even ex officio, the authors of the referral persist in the entirety of the grievances against the entire internal security law.
We ask you to believe, Mr. President of the Council Members of the Council, to the expression of our highest consideration.
