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Observations Of The Government On The Appeals Against The Law For Homeland Security

Original Language Title: Observations du Gouvernement sur les recours dirigés contre la loi pour la sécurité intérieure

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JORF No. 66 of 19 March 2003 Page 4827
Text #7



Government's comments on appeals against the law for internal security

NOR: CSCL0306413X ELI: Not available


The Constitutional Council has been entered, by more than 60 Members of Parliament and more than sixty senators, appeals against the law on internal security, adopted on 13 February 2003.
The applicants articulate, in contravention of Articles 3, 11, 12, 13, 21 to 25, 28, 30, 50, 51, 53, 64, 65, 75, 76, 96, 113, 122, 123, 141 and 142 of the Act, various grievances that require the Government to make the following observations.


I. -Articles 3, 122 and 123


A. -Article 3 of the Law on Internal Security, supplementing Article L. 2215-1 of the General Code of Local Authorities relating to the administrative police powers of the State representative in the Department, is intended to enable the Representative of the State, in the event of an emergency, requisitioning the goods and services and requisitioning the persons necessary for the operation of those services or for the use of those goods, as long as it is a breach of public order and when the means It does not permit the maintenance of public order. Article 3 specifies that the prefect may carry out the enforcement of the measures which he has ordered, arranges for the payment by the State of the persons required, provides for a double intervention by the administrative court to grant a provision on the Amount of compensation and to make a penalty payment in the event of wilful non-performance, and reacts as an offence to refuse to carry out the prescribed measures.
Sections 122 and 123 of the Act refer to the Code of communes applicable in New Caledonia and in Act No. 77-1460 of 29 December 1977 amending the municipal system in the territory of French Polynesia.
The authors of the proceedings argue that the provisions of Article 3 are They are imprecise and have too broad a scope, they are vitiated by negative incompetence and they are unfamiliar with the provisions of Article 66 of the Constitution. They further submit that the cumulation of a penalty payment liable to be imposed by the administrative judge and a criminal sanction disregard the principle of the need for the punishments guaranteed by Article 8 of the Declaration of Human Rights and of the
The Members of Parliament, who are the authors of the second appeal, also criticise the provisions of Articles 122 and 123.
B. The Constitutional Council cannot accept this argument.
1. In the state of the applicable law, the State representative in the department may already make civil requisitions in specified areas, in accordance with specific texts relating to the powers of special administrative police. This is the case, for example, under the law of 22 July 1987 on the organisation of civil security, which allows the requisition of private means of relief in the event of natural or industrial disasters, of the laws of 24 November 1961 Relating to the police of maritime wrecks and of 7 July 1976 on the prevention and suppression of maritime pollution, which authorise the requisitioning of goods and persons for the purpose of maritime protection, or of the law of 20 July 1998 on the fight against exclusions which allows for the requisition of vacant dwellings for the relocation of persons without shelter.
In the field of general administrative police, there is a system of civil requisitioning of persons And services based on national defence texts. This regime is the result of Title II of the Act of 11 July 1938 on the General Organisation of the Nation for the Time of War, which was maintained in force by Law No. 50-244 of 28 February 1950 and supplemented by Order No. 59-63 of 6 January 1959 Relating to requisitioning of goods and services. These texts authorise the Government, and by delegation the Prefect, to take civil requisitions in the framework " The preparation, in time of peace, of measures for the organisation of the nation for the time of war " Or " To ensure The country's needs." The order of 7 January 1959 on the general organisation of the defence authorizes the Government, and by delegation the Prefect, to " Require persons, goods and services " Under the terms of Title II of the Act of 11 July 1938, in case of General mobilization or " In the event of a threat to, inter alia, a part of the territory, an area of national life or a fraction of the population. "
These provisions shall respond to situations of unrest Particularly serious. Article 2 of the decree of 28 November 1938, taken pursuant to the Act of 11 July 1938, which also specifies the provisions of the order of 7 January 1959 on the general organisation of the defence, provides that an order in council of the Ministers must authorize the requisitions. These provisions were last applied for the last time in the 1991 Gulf War (decrees No. 91-42 of 14 January 1991 and No. 91-60 of 17 January 1991), in order to requisition persons and material resources of the French shipping companies and shipping companies.
The Prefect may, again, take general administrative police requirements in substitution for the mayor under the conditions laid down in Article L. 2215-1 of the General Code Local and regional authorities. Administrative jurisprudence recognizes that the mayor may, under his authority as a general administrative police, decide to require persons and property. The power of substitution of the prefect, however, can only be exercised in the event of a deficiency, and in response to a disturbance of public order limited to the territory of a single municipality. On the other hand, if the disorder concerns several communes, the possibility for the prefect to base requisitions on the general administrative police powers which it derives from 3 ° of Article L. 2215-1 of the general code of the local authorities Appeared, in view of the administrative case law, more uncertain. Such a disorder does not, moreover, present the character of extreme gravity, which alone can justify the implementation of the provisions of the law of 1938 or of the order of 1959
Explicitly such powers, by precisely determining the conditions under which it will be able to requisition, within the framework of its general administrative police powers, in order to respond to disturbances to the public order of Local dimension. These requisitions may, in practice, have varied objects, but they will necessarily be circumscribed by the requirements of maintaining law and order. Examples are the requisition of means of lifting vehicles, the requisition of premises for storing goods (e.g. animal meal), the requisition of petrol stations, the requisition of certain Enterprises (for example, for rendering or cleaning land after a " Rave party "
2. By adopting this mechanism, the legislator is not, contrary to what the remedies have argued, remained within its jurisdiction. Nor has it caused undue damage to constitutionally guaranteed rights and freedoms.
Article 3 of the law defines precisely the scope of the new requisition procedure, the legal requirements of its Implementation, the conditions of compensation of the persons required and the implementing rules. The prefect will only be able to resort to this procedure in the event of an emergency and to the strict extent that it is necessary for the preservation of public order, which is an objective of constitutional value. It can only be implemented in the alternative, under the control of the administrative judge, to the extent that the prefect has exhausted all the means available to him to respond to the disorder in public
. As part of an administrative police framework, the legislator was not bound by any rule of constitutional value to provide for the intervention of the judicial authority in the implementation of the operative part. The latter leads to the limitation, for a specified period of time, of the freedom to go and to come from the persons required or the right of use of the goods or services requisitioned. It does not affect individual liberty or dispossession of the property considered. The limited infringement that it may bring to other constitutionally guaranteed rights and freedoms is justified by the objective of constitutional protection of the public order.
In addition, it must be pointed out that Parliament has Expressly set out the principle and procedures for the remuneration of the persons required and set up several guarantees. Thus, the prefectural decision must take the form of a reasoned order fixing the nature of the benefits required, the duration of the requisition and the manner in which it is applied. Such a decision may, of course, be the subject of an application for an excess of power, which may be accompanied by a request for interim relief under the conditions of ordinary law. The law explicitly provides for the possibility for the person required to form before the administrative court an application for interim relief to obtain, under very short notice, a provision on all or part of the compensation corresponding to the Required.
3. The legislature intended that the prefect could carry out the measures prescribed by the requisition order ex officio. It has set up a mechanism for the prefect to seize the President of the Administrative Court or the Magistrate which he delegates for the purposes of making a penalty payment against the person required, if the person voluntarily refuses to execute the Obligations that result from the measurement of requisition. The refusal to execute is, moreover, a punishable offence of six months' imprisonment and a fine of 10 000 EUR.
Contrary to appeals, the legislature did not, in so doing, disregard the constitutional requirements which Article 8 of the Declaration on Human and Citizens' Rights. In addition to the fact that no rule of constitutional value prohibits, in principle, the legislator to provide for the accumulation of an administrative sanction with a criminal sanction, since the cumulation of these sanctions is not excessive and does not misunderstand the principle Of the proportionality of the penalties (Decision No 89-260 DC of 28 July 1989; Decision No 97-395 DC of 30 December 1997), it must be pointed out in the present case that the penalty mechanism organised by the law referred to the administrative court does not present the The
court is vested with the full right to issue injunctions, if any, to private persons, if any. There are illustrations of expulsion from the public domain or in the context of contractual disputes (EC Sect 13 July 1956, Office Public d' HLM de la Seine, Rec. P. 343; EC 30 October 1963, SARL Sonetra, p. 520; CE Ass 3 March 1978, Lecoq, p. 116; EC Sect 28 November 1980, Société d' exploitation des sous-produits des abattoirs, Rec. P. 452; CE 14 November 1997, Communauté urbaine de Lyon, p. 421; EC 29 July 2002, Centre hospitalier d' Armentières, No. 243500 to be published in the compendium). Such a power of penalty is intended to compel the execution of a decision, in the administrative case, and not to quell a behaviour. Nor can the penalties which may be imposed by the administrative court against public persons under Book IX of the Code of Administrative Justice be imposed in order to compel them To carry out the decisions of the administrative courts, the penalty imposed by the same judge in respect of private persons is not a penalty.
The determination by the judge of the amount The penalty payment is not, moreover, a function of the past conduct of the person concerned, but is the result of the judge's assessment of the level of threat necessary to carry out effectively the decision which it must apply. Similarly, a provisional liquidation of the penalty payment is intended to force the execution of the penalty if the execution has not yet taken place. The final liquidation, when it intervenes for an amount other than the provisional liquidation, takes into account the conditions in which the decision was finally executed.
As soon as a mechanism The invocation of Article 8 of the Declaration of Human and Citizen Rights does not appear to be a sanction. Moreover, it can be noted that the conjunction of a penalty payment and a criminal sanction is not without precedent. Several laws organise, in effect, the cumulation of a penalty-penalty mechanism designed to force a person to comply with a legal obligation and a criminal conviction to punish the lack of knowledge of that obligation. Thus, in the field of communication, Article 42-10 of the Act of 30 September 1986 organises an interlocutory procedure with the possibility of periodic penalty payments to the President of the Dispute Section of the Council of State to compel a person to Comply with the obligations of the law, which are also subject to criminal sanctions imposed by sections 74 to 79-6 of the same Act. The same applies to the display and advertising of articles L. 581-30 and L. 581-34 of the Environment Code. As far as the protection of the public domain is concerned, the administrative judge of the applications may also order the evacuation of the public domain, without obstructing the undertaking of a repressive procedure for the infringement of the public domain (EC Sect 25 January 1980, Société des terrassements Mechanical and Mariani, Rec. P. 49; 16 January 1985, Codorniu, Rec. Tables p. 626); similarly, this procedure for the infringement of a road ticket coexists a repressive action and a public action which may include an obligation to make possible with a penalty payment (EC 24 June 1961, Société d' études et de Garages constructs, Rec. P.
It does not appear, therefore, that a principle of constitutional value prohibits the legislator from instituting a penalty-penalty mechanism intended to compel a person required to execute an administrative decision and a criminal sanction Repriming the failure to execute the decision. The two mechanisms have neither the same nor the same scope; their cumulation is not contrary to the requirements of Article 8 of the Declaration of Human and Citizen Rights.


II. -Articles 11, 12 and 13


A. -Article 11 of the Act referred, reinstating an article 78-2-2 to the Code of Criminal Procedure, is intended to empower judicial police officers, assisted, as appropriate, by judicial police officers and judicial police officers To carry out, on the written requisition of the prosecutor of the Republic for the purposes of research and prosecution of certain offences, identity checks and the inspection of vehicles circulating, arrested or stationed on public roads or In places accessible to the public.
Article 12, inserting an article 78-2-3 of the Code of Criminal Procedure, is intended to enable such officers and agents to visit vehicles circulating or arrested on public roads or in public places. Places accessible to the public, where the driver or passenger exists one or more plausible reasons for suspecting that he has committed or attempted to commit a crime or offence.
Section 13, adding to the Code Criminal procedure an article 78-2-4, empowers judicial police officers and, on their order and under their responsibility, judicial police officers and assistant judicial police officers, to visit vehicles to prevent A serious breach of the safety of persons and property, with the agreement of the driver or, failing that, on instructions from the public prosecutor.
Senators and the petitioners submit that these items would be affected And the right to privacy guaranteed by Articles 1, 2 and 4 of the Declaration of Human and Citizen Rights, as well as Article 8 of the Declaration and Article 66 of the Constitution. According to the authors of the remedies, these provisions would disregard the case-law of the Constitutional Council on the search of vehicles. The applicants also point out that Articles 11 and 12 would be vitiated by negative incompetence in that their provisions would be too imprecise, that they would relate to a number and categories of infringements which were too broad, The authorisation issued by the public prosecutor could be renewed without any real limit of duration and that they would not guarantee that the judicial authority could exercise direct and permanent control over those operations
Can be discarded.
1. It is true that the Constitutional Council has marked, in a solemn way, that the legislature cannot empower the judicial police officers and their agents to carry out the inspection of vehicles without determining in a precise manner the cases in which Such powers may be exercised and without appropriate safeguards.
By Decision No. 76-75 DC of 12 January 1977, the Council declared a legislative provision which had conferred on the judicial police officers broad Powers of inspection of vehicles not in conformity with the Constitution, in the name of the protection of individual liberty, because of the scope of the powers conferred, the very general nature of the cases in which they could be exercised and of The imprecision of the scope of the controls to which they would be likely to give rise. By Decision No 94-352 DC of 18 January 1995, the Council, likewise, in respect of searches for vehicles under the judicial police, censored a legislative provision which had not provided for the prior authorisation of such operations By the judicial authority. Decision 97-389 DC of 22 April 1997, which deals in particular with the summary visit of vehicles circulating on the public road for the purpose of seeking and finding offences relating to the entry and stay of aliens in France, Of a different problem in that the legislative provision then examined formally excluded passenger cars from the scope of the summary visits and that these visits were solely for the purpose of finding and finding out Offences under the legislation on the entry and residence of aliens.
However, in this case, the Government intends to underline that the provisions adopted by Articles 11, 12 and 13 of the law referred to satisfy the requirements of the case-law On the basis of a double concern for the protection of public order and the search for offenders, which are objectives of a constitutional nature, the provisions criticised are sufficiently precise and set up Appropriate safeguards. They do not unreasonably prejudice the exercise of constitutionally guaranteed rights and freedoms.
2. The purpose of Article 11 is to perpetuate, by extending slightly the scope of the provisions of the Act of 15 November 2001 on daily safety. This system, which is aimed at the search for terrorist offences or the laws on arms or drugs, as well as in the search for theft and recel offences, is the responsibility of the judicial police. It can only be implemented on the written requisition of the public prosecutor. It retains the guarantees for the freedoms resulting from the law relating to daily safety and reinforces them, in particular by excluding from the scope of this provision vehicles for residential use.
As required by the Constitutional jurisprudence, these operations under the judicial police are decided by the Public Prosecutor, who is a member of the judicial authority. It only appreciates the opportunity, determines the location and the duration, takes for this purpose written requisitions for the search for specific offences, and supervises its execution. It has the flexibility to travel to the site to ensure that the vehicle visits are carried out.
The legislator has also provided sufficient detail and guidance for the implementation of these operations. It should be stressed, in this regard, that the requisitions of the Public Prosecutor can only be directed to certain offences which are exhaustively listed and particularly serious: offences relating to terrorism, drug trafficking, The violation of the law on arms, as well as theft and recel. It can be pointed out that the fight against these latter offences, which have a particular impact on everyday safety, is now an important public safety issue and that the visit of vehicles is a suitable means and
The terms used by the legislator contain sufficient detail of the scope of those operations and the cases in which such powers may be used. It is not doubtful whether the legislator could authorise the visits of vehicles parked in places accessible to the public: it would be paradoxical-and would greatly alter the effectiveness of the device-to allow the inspection of vehicles Parking on the public highway but excluding it when vehicles are parked in a public parking lot. Furthermore, the reference made by the legislator to vehicles specially adapted for residential use and actually used as residence, to exclude such vehicles from the field of visits organised by the criticised article, is not Seriously contested: the legislator took particular account of the protection of the domicile and imposed on the visit of these vehicles the rules applying to house searches as determined by the Code of Criminal Procedure (in particular the condition relating to the prior finding of a crime or a flagrant offence under Article 56 of that code or the condition relating to the legal hours under Article 59).
The duration of such operations shall be determined by the Public Prosecutor Within the limit set by the law of twenty-four hours. This limit is, moreover, an innovation in relation both to the earlier provisions of the Law on Daily Safety and to the provisions applicable to other controls, the duration of which is generally left by the Legislators at the discretion of the magistrates who order them (so as regards identity checks ordered under Article 78-2 of the Code of Criminal Procedure). In any event, to provide for a renewal mechanism to accompany the original 24-hour term cannot be regarded as an excessive infringement of constitutionally guaranteed freedoms. In the absence of a legal provision authorising this renewal, the public prosecutor could, in any case, possibly be led to take further requisitions if the necessities relating to the search for the offences justified it. Moreover, it can be observed that the law requires the prosecutor of the Republic to take an express decision to renew, to give reasons for this decision and to respect the same forms as those presiding over the initial requisitions. This necessarily implies that the duration of the renewal is equally limited to twenty-four hours.
Finally, it can be noted that the provision in the last paragraph of article 78-2-2, according to which the fact of revealing offences Other than those referred to in the requisitions of the prosecutor of the Republic does not constitute a cause of nullity of proceedings, presents the character of a classic provision of criminal procedure. Such a provision is, for example, Article 78-2 of the Code of Criminal Procedure relating to identity checks and falls within the general obligation of Article 19 of the Code of Criminal Procedure to any police officer Judicial authorities to inform the public prosecutor without delay of the crimes, offences and offences of which he is aware. The Constitutional Council has already admitted that such provisions are in conformity with the Constitution (Decision No. 93-323 DC of 5 August 1993
. Article 12 of the Act is intended to include in the Code of Criminal Procedure an article 78-2-3 authorizing judicial police officers, and judicial police officers in their order and under their control, to visit a Vehicle travelling or stopped on public roads or in places accessible to the public where the driver or a passenger exists one or more plausible reasons for suspecting that he has committed or attempted to commit, as an author or An accomplice, a crime or a flagrant offence. It thus allows the police to proceed immediately with the inspection of the vehicles as soon as the crime or crime has just been committed or is about to be committed.
The scope of this provision, which is also the responsibility of the police Shall be strictly limited to the flagrant and the guarantees established by the second, third and fourth paragraphs of Article 78-2-2 resulting from Article 11 of the Law referred to in Article 11 of the Law (prohibition on the inspection of vehicles used for The dwelling, limited time of visit, minutes sent without delay to the public prosecutor) apply under an express reference.
In the matter of explosion, it is necessary to recall that the general provisions of criminal procedure Provide, easily understandable, a significant amount of initiative to the judicial police officers. This applies to house searches or seizures where there is one or more plausible reasons for suspecting that a person has committed or attempted to commit a crime or an offence. However, it is the responsibility of the judicial police officer to notify the prosecutor of the Republic of the offences of which he is aware without delay (art. 19 of the Code of Criminal Procedure) and the arrival at the premises of the prosecutor divested the judicial police officers for the benefit of the magistrate who performs all the relevant acts (art. 68 of the Code of Criminal Procedure). In addition, the law stipulates that in the event of the discovery of an offence, a record shall be drawn up, of which one copy shall be given to the person concerned and another shall be transmitted without delay to the public prosecutor. The judicial authority is fully competent to check the validity of the acts carried out by the judicial police officers.
The visit of vehicles organised by Article 12 of the law referred to in the case of flagrant cases is Subject to compliance with these general provisions of the criminal procedure. In particular, the intervention of the judicial authority will be exercised according to the conditions determined for the circumstances of the explosion.
In addition, the concept of " Plausible reason " Suspect the commission of a crime Or a flagrant offence, which is criticised by recourse, is the one which governs the placement in police custody by the judicial police officer under Articles 63, 77 and 154 of the Code of Criminal Procedure. It is, moreover, in harmony with the terms of Article 5 of the European Convention for the Protection of Human Rights and Fundamental
. Article 13 of the Act referred to has, for its part, the purpose of enabling judicial police officers and, under their responsibility, judicial police officers and assistant judicial police officers to proceed, with the agreement of the A driver or, failing that, on instructions from the public prosecutor communicated by all means, on the inspection of vehicles circulating, arrested or stationed in public places, with the aim of preventing a serious breach of public order. Pending the instructions of the public prosecutor, the vehicle may be detained for a period of not more than thirty minutes. The guarantees established by the second, third and fourth paragraphs of Article 78-2-2 of the Code of Criminal Procedure resulting from Article 11 of the Law referred to shall apply in accordance with an express
. As set out in the preceding Articles, the powers conferred by Article 78-2-4 of the Code of Criminal Procedure as a result of Article 13 do not fall within the scope of the judicial police, but fall within an administrative police framework. In accordance with the requirements of the constitutional case law (Decision No. 76-75 DC of 12 January 1977, cited above), the law made these controls conditional on the need to prevent a serious breach of public order. However, the case-law of the Constitutional Council on the protection of individual liberty does not imply, in such a case which does not entail any deprivative measure of liberty, the prior authorisation of the judicial authority. As regards the administrative police, it appears that the case-law reserves exclusive jurisdiction to the professional judges of the judicial authority only where the measures determined by the law lead to the physical insurability of the judicial authority. Persons and to deprive them of their liberty (Decision No 99-411 DC of 16 June 1999, recital 20; Decision No. 2002-461 DC of 29 August 2002, recital 19).
Article 78-2-4 establishes several guarantees. First, it can only be implemented if there is a threat of serious public order. The visit of the vehicle can then take place only with the prior agreement of the driver or, if he objects to it, by decision of the public prosecutor. Finally, the law specifies that the detention of the vehicle cannot exceed thirty minutes pending the instructions of the public prosecutor.
It is also possible, on the one hand, to note that the visitation mechanism established by the law referred to includes: Guarantees similar to those surrounding the summary inspection scheme to seek, within the framework of the judicial police, infringements of the legislation on the entry and residence of aliens and that the Constitutional Council ruled Sufficient (Decision 97-389 DC of 22 April 1997). On the other hand, it may be pointed out that the operation of vehicle visits with the agreement of the driver is not without analogy with the mechanism of the non-coercive preliminary investigation which allows for the conduct of a residence search or Seized objects with the prior consent of the person concerned (art. 76 of the Criminal Procedure Code).


III. -Articles 21 to 25


A. -Sections 21 to 25 of the Domestic Security Act enact several provisions relating to automated processing of information.
Section 21 is intended to determine the general rules governing the implementation of the Judicial police investigation files. The I of this article provides that the services of the national police and the national gendarmerie can implement automated applications of personal information collected in the framework of judicial proceedings concerning any crime Or offence, as well as the offences of the 5th class penalizing, in particular, a security disorder, in order to facilitate the finding of offences under criminal law, the gathering of evidence of such offences and the search for their authors. The II determines the categories of persons on whom the treatments in question may contain information. The III instituted measures to control the processing of such information by the public prosecutor, as well as the arrangements for updating and even erasing such data, depending on the development of the situation. Finally, Article 21 specifies the categories of persons who have access to treatment and refers to an order in the Council of State, taken after the advice of the CNIL, the laying down of the rules for the application of the law
January 6, 1978 relating to computers, files and freedoms, determines the conditions under which the right of access to information contained in treatments relevant to state security, defence or security is exercised
Section 23 determines the information in the file of persons sought for judicial decisions.
Article 24 provides that the data contained in the automated processing of personal data Managed by the national police and gendarmerie services can be transmitted, within the framework of France's international commitments, to international cooperation bodies in the field of judicial police or to police services Article
provides that certain administrative decisions may be preceded by administrative investigations for the purpose of To verify that the conduct of the persons concerned is not incompatible with the exercise of the functions or tasks covered by those administrative decisions. It refers to a decree in the Council of State to lay down the list of investigations which give rise to the consultation of the automated processing of personal data referred to in Article 21. Article 25 also provides for the possibility of consulting these files for the purpose of examining applications for the acquisition of French nationality and for issuing and renewing titles relating to the entry and residence of aliens, as well as for the purposes of Appointment and promotion in national orders. It provides that the consultation may be carried out by national police and gendarmerie officers, as well as by state personnel with specially designated administrative police missions. Finally, it specifies that the consultation of judicial police files may be carried out in respect of protection or defence measures taken in the security sectors of the priority defence installations referred to in Article 17 of the Order No. 59-147 of 7 January 1959 on the general organisation of the defence.
The authors of the references submit that these provisions, in the absence of all the guarantees required, infringe on individual liberty and life Guaranteed by Articles 1, 2, 4 of the Declaration of Human and Citizen Rights. They also argue that they are unaware of the fundamental principle recognized by the laws of the Republic of Special Criminal Protection of Minors, as well as the principle of the presumption of innocence, the principle of equality and the principle of law
B.-The Constitutional Council can only dismiss these criticisms.
1. With regard to the automated processing of personal information collected in the course of judicial proceedings, it can be pointed out, first, that the enactment of legislative rules responds to the wish of the National Commission on Informatics and Freedoms (CNIL), expressed in its activity report for the year 2000 on the national judicial police file (STIC). The CNIL deplored, in fact, that only the law of 6 January 1978 governed this file and called for a general legislative intervention on the operation and control of judicial police files. Article 21 thus determines the rules applicable to judicial police evociation files, which are to date in the number of two: the STIC file (system for dealing with offences detected, managed by the national police) and the JUDEX file (judicial information system JUDEX, managed by the gendarmerie).
The Government intends to stress that the legislative provisions adopted by Parliament are sufficiently precise and contain the guarantees required by the rules and Principles of constitutional value. The law itself determines the nature of the information concerned and the rules according to which they are amended or erased, places the treatment under the control of the public prosecutor who may, in particular, request that the information Be erased, supplemented or rectified, enumerates the categories of persons likely to be registered or have access to this information.
It must be noted, moreover, that the law referred to has not been allowed to derogate from the provisions Of the Act of 6 January 1978 relating to computers, files and freedoms: in accordance with the rules of combination of legal texts, in the silence of the law referred to, the provisions of the general law of 6 January 1978 apply to Full entitlement to the treatments considered. In those circumstances, it was not necessary for the law referred to expressly to refer to the law of 6 January 1978 to ensure its application. It can also be noted that the law provides that the decree in Council of State referred to in the V of Article 21 shall be submitted for opinion to the National Commission on Informatics and Liberties.
2. Contrary to what is supported, the legislator has determined with sufficient precision the purpose of the files, the rules of consultation, the length of data storage and the procedure for erasing this data.
Article 21 states: Very precisely the purpose of the files considered: to facilitate the finding of infringements of the criminal law, the gathering of evidence of these offences and the search for their authors. It also mentions their statistical purpose.
It also determines, with Article 25, the rules for the consultation of these files, on the one hand, and mainly by the authorities acting in judicial proceedings, on the other hand, by Administrative authorities in the framework of administrative police missions. It should be noted that these are always specially authorised personnel. The authorisation will specify the nature of the data to which these persons will have access and the consultation of these files is subject to traceability procedures.
The duration of the data retention will be provided for by decree in the Council of State After notice of the CNIL, as is currently the case: these are technical provisions which vary according to the crimes, offences and contraventions concerned, according to the age of the authors and according to the quality of the persons registered in the file, Victims cannot, of course, be governed by the same provisions as the authors of offences; on this point, the legislature expressly provided that the data could not be kept without limitation of time; it could, for the Surplus, refer to the regulatory authority to accurately determine the terms and conditions.
The rules for erasing the data are, similarly, precisely determined. As regards judicial decisions on the guilt of persons, a principle of erasure is provided for in the case of decisions of acquittal and acquittal, unless the prosecutor of the Republic orders the retention of the data For reasons related to the purpose of the file. This exception applies to cases of acquittal or acquittal due to the state of dementia of the perpetrator. As regards non-suit and non-suit decisions for insufficiency of charges, it is envisaged that the principle is the retention of the data with reference to the decision in the file, except in the case where the prosecutor of the Republic prescribes Erasure. Decisions of non-place shall not affect the accuracy of the facts found which are not prosecuted for reasons relating to the state of insanity of the perpetrator of the facts or the prescription. As for the decisions to be filed without regard for the insufficiency of charges, it is not a question of decisions of the courts of judgment deciding on the guilt of the author of the facts recorded in the file. The other-and very many-decisions of uncontinued classification cannot lead to the erasure of the data recorded in the elucidation files as soon as these are rankings without further opportunity or rankings without further action Following the taking of alternative measures to criminal proceedings. The text also provides for the rules for the erasure of data relating to victims, which are clearly not in the same situation as the offenders.
It should be noted, with regard to the rules for erasing and updating These data, that these rules are those already laid down in the Decree on ICTS taken after the assent of the CNIL and the Council of State. The CNIL has not made any critical comments on this point when it has taken a position on the provisions of the law referred to. It can also be noted that the rules adopted by the legislator to govern the erasure, updating or retention of the data are consistent and justified with regard to the purpose of the file: must be kept in the file all the Data relating to the facts committed; in case of doubt on the facts (assumption of the classification without further charge), it should be specified in the file (principle of the update or the " Mention ") ; in case of decisions of The principle of erasure must, of course, prevail.
3. The principle of erasure must, of course, prevail. As regards the intervention of the public prosecutor, the alleged infringement of the presumption of innocence and the speciality of the criminal law of minors, it should be recalled that the elucidation files are not background files Courts, but files to facilitate judicial investigations. It is for this reason that the processing of personal information is carried out under the control of the Public Prosecutor, under Article 41 of the Code of Criminal Procedure, to carry out or to carry out all necessary acts. The search and prosecution of offences under the criminal law and which, for that purpose, under Article 12 of the same Code, directs the judicial police.
As part of that review, the Public Prosecutor shall make corrections and Necessary requalifications. In view of the purpose of judicial investigation of the file, it must be able to assess the consequences of the decisions of acquittal, acquittal, non-suit or ranking without further action on whether or not the facts entered in a file are erased. It may be seized through the CNIL of a difficulty for any person appearing in a public security file in the context of the indirect right of access organised by Article 22 of the law referred to: this right of access allows Any person to seize the CNIL to carry out the relevant investigations and make the necessary changes.
As regards minors, it should be borne in mind that the evociation files are likely to facilitate judicial investigations Relating to acts of which the victims are minors. It is therefore necessary to allow the registration of data concerning minors who are victims. And, with regard to the minors involved as authors of facts, we must not lose sight of the fact that the files in question are evociation files and not criminal record files: even though a minor could not be Criminal prosecution for acts which he allegedly committed very young, it is useful for the police and gendarmerie services to keep track of the facts found and the name of their author in order to elucidate any other offences committed At the same time or at a later time. It is therefore acceptable to register the information relating to the Respondents regardless of age, having regard to the purpose of the treatments in question. The STIC file and the JUDEX file do not, moreover, keep any information on the nature of the sentences imposed on the authors who are registered there; the specific nature of the criminal law applicable to minors is therefore not well known by these files. Are tools to assist with police investigation.
4. As regards the administrative investigations which are the subject of the provisions of Article 25, the Government intends to note that the principle of such investigations entrusted to the national police and gendarmerie services is accepted by the case-law of the Constitutional Council (Decision No 87-240 DC of 19 January 1988; Decision No. 89-267 DC of 22 January 1990; Decision No. 97-389 DC of 22 April 1997) and by the case-law of the Administrative Judge. The purpose of these administrative inquiries is to verify that the conduct of the persons concerned is not incompatible with the exercise of the functions or tasks entrusted to them or with the obtaining of certain authorisations or Distinctions that may be refused on grounds of public order. In these circumstances, the consultation of data relating to ongoing legal proceedings can clearly constitute a useful piece of information.
It can be noted that the law has provided that interested persons will be informed of the These data will have been consulted. It will be for the decree of the Council of State referred to in the second paragraph of Article 17 (1) of the Act of 21 January 1995, pursuant to Article 25 of the Act referred to, to determine the conditions under which the persons concerned will be informed of the
It should be noted, in addition, that consultation is only part of the administrative authority. It goes without saying that the assessment of this authority is not bound by the elements revealed by the administrative inquiry. It must be brought, under the control of the judge, in the light of all the circumstances of each case, taking into account the nature of the facts likely to be taken into account. The resulting administrative decision may be appealed to the administrative judge, and, where appropriate, an interlocutory procedure.
It can finally be noted that the legislator has determined with precision, and in a restrictive manner, the Reasons for the consultation of the files: they are strictly circumscribed by law in the fields of preservation of public order, to the strict extent required by the protection of the security of persons and the defence of interests Of the Nation. The legislator has similarly circumscribed the list of persons who may consult the judicial police files, limiting them to the police officers and the national gendarmerie specially empowered for this purpose and to the staff invested Administrative police missions under conditions laid down by decree in the Council of State. Such clarifications make it possible to consider that the provision in question does not affect constitutional guarantees (Decision No. 98-403 DC of 29 July 1998).


IV. -On Article 28


A. -Article 28 of the Criminal Procedure Act introduces an article 706-47-1 to the Code of Criminal Procedure which empowers judicial police officers acting in the course of an investigation or on a commission to conduct a medical examination and a seizure of Blood on any person against whom there is serious or consistent evidence of rape or sexual abuse, in order to determine whether it has a sexually transmitted disease. This may be done without the consent of the person concerned on written instructions from the public prosecutor or the investigating judge, at the request of the victim or when his interest justifies
. Provision would be disproportionate, would undermine the presumption of innocence, individual liberty and respect for the rights of the defence. They note, in particular, that the list of offences allowing the implementation of these examinations would be too broad, that the power granted to the victim would not be justified and that it would be likely to affect the procedure
B.-The Constitutional Council cannot accept this argument.
It should be noted, first, that under the first paragraph of section 706-47-1, as a result of section 28 of the Act, it cannot Conduct a medical examination or a blood-taking other than on a person against whom there are serious or consistent evidence of the offence. By requiring " Serious or Matching Indices ", the text establishes a level of index similar to that required for the examination of the person, which may, in addition, result in the person being placed in custody (art. 80-1 of the Code of Criminal Procedure resulting from Law No. 2000-516 of 15 June 2000). When it exists against a person " One or more plausible reasons " That the person has committed the offence, that person may be placed in custody but not under examination. Therefore, the mere fact that an investigation is carried out, or even that the person was detained and placed in police custody, does not permit, in the absence of serious or corroborating evidence, a medical examination or a blood
. Observe, second, that the offences listed in the article criticized all of the assumptions in which acts of penetration may have been committed, in relation to acts of rape or sexual assault. Articles 222-23 to 222-26 of the Criminal Code criminalize rape and aggravated rape. Articles 227-25 to 227-27 are related to acts of sexual assault which, contrary to what is supported, can all cover assumptions made of sexual penetration that could lead to contamination
It should be noted, in the third place, that the article criticised has neither the purpose nor the effect of imposing a medical examination or a blood-taking in all the cases where the relevant facts have been committed. The first paragraph provides that the judicial police officer, acting in the course of the investigation or on a rogatory commission, may carry out a medical examination and the taking of blood on the person concerned. However, it is only a faculty, the judicial police officer acting under the control of the prosecutor of the Republic during the investigation or that of the investigating judge during the course of judicial information. These examinations will only be carried out when they are necessary, i.e. in the event of a risk of contamination. Similarly, under the third paragraph of the article, in the absence of the consent of the person concerned, it is the prosecutor of the Republic during the course of the investigation or the investigating judge in the course of the judicial information that will authorize such examinations, to the Request of the victim or where his interest justifies it. Thus, in the event of a refusal by the person concerned, the judicial police officer will not be able to decide on a medical examination or a blood test, a decision to be taken by the public prosecutor or the investigating
. Point out that, contrary to the support of the appeals, the examinations in question are not carried out in full right in the light of the victim's request. In accordance with the very wording of the third paragraph of Article 706-47-1, the decision to carry out such examinations shall belong to the public prosecutor during the course of the investigation or to the investigating judge in the course of judicial information. It is these magistrates who will appreciate, in the event of a refusal by the person concerned and in the circumstances of each case, the usefulness and necessity of conducting examinations.


V. -On item 30


A. -Article 30 of the Law on Internal Security, amending the Code of Criminal Procedure, allows the judicial police officer during the investigation of the blast (new Article 55-1), to the public prosecutor or, on authorisation of the Republic of the Republic, To the judicial police officer during the preliminary investigation (new section 76-1) and the judicial police officer during the course of judicial information (new section 154-1) to proceed or to proceed, on any person who may Provide information on the facts in question or on any person against whom there are reasonable grounds for suspecting that it has committed or attempted to commit the offence, to external sampling operations Necessary for the conduct of technical and scientific examinations of comparison with the traces and indices taken for the purposes of the investigation.
In contrast to those provisions, the authors of the second action argue that they Would be imprecise and incompetent in the negative.
B.-These criticisms should be dismissed.
First, the notion of " External sampling " Used by Parliament cannot be regarded as imprecise. It opposes, in fact, the ' Internal bodily investigations " Pursuant to Article 63-5 of the Code of Criminal Procedure resulting from Law No. 2000-516 of 15 June 2000. These provisions provide for the intervention of a physician to ensure respect for the dignity and integrity of the human person. They can be implemented, in particular, in the fight against drug trafficking. It is within this framework that the custody of the seals may have made it clear that the provisions of Article 63-5 concern only internal bodily investigations and not mere oral sampling, which may be carried out by a Investigator with the agreement of the person (CRIM circular 11-13 of 4 December 2000, introducing the provisions of the law of 15 June 2000; circular CRIM 00-8 F1 of 10 October 2000, introducing the provisions relating to the automated file of the DNA fingerprinting and the central preservation service for biological samples.
External sampling can thus be defined as non-invasive painless sampling operations-i.e. No injury-and not likely to jeopardize the physical integrity or dignity of the human person.
Parliamentary work has provided illustrations of what the notion of external levies can cover. In this way, it can be saliva samples, for the purposes of DNA fingerprinting, fingerprints, photographs and even specimen collection. It is true that the taking of fingerprints or photographs was already provided for in Article 78-3 of the Code of Criminal Procedure, which criminally penalises the refusal to submit to it, but the concept of external levy is more Wide and allows to give a general legal basis, beyond the saliva samples, to the collection of indices and materials (drawdown of dust, pollens, powder) to which investigators have a long history.
Second, In the case of persons who may be affected by such levies, it must be noted that the article criticising is the person who is likely to provide information-that is, the witness-and, on the other hand, the person to whom Against which there is one or more plausible reasons for suspecting that it has committed or attempted to commit the offence. The formulas used in this respect by the legislator correspond to concepts established in the law of criminal procedure (see in particular Article 62 of the Code of Criminal Procedure). The scope of the legislation is exactly suited to the necessities of the conduct of investigations.


VI. -Article 50


A. -Article 50 has as its main objects, on the one hand, adding an article 225-10-1 to the Penal Code, punishing two months' imprisonment and a fine of 3 750 EUR on the other, by any means, including by a very passive attitude, of proceeding publicly on the To engage in sexual relations in exchange for remuneration or a promise of remuneration, on the other hand, supplementing article 225-12-1 of the Penal Code, to repress the fact of soliciting, accepting or obtaining, in An exchange of remuneration or promise of remuneration, sexual relations on the part of a person engaged in prostitution when this person presents a particular vulnerability.
Senators and Members of Parliament These provisions would be contrary to the principles of legality and necessity of the penalties laid down in Article 8 of the Declaration on Human and Citizens' Rights and the principle of the dignity of the human person. They note, in particular, that the provision would reveal a misuse of proceedings, that the constituent elements of the infringements would not be defined sufficiently clearly and precisely, that the provision in question would have the effect of To submit persons engaged in prostitution to inhuman and degrading treatment, that the file of such persons would be detrimental to individual freedom. They argue, moreover, that the penalties determined by the legislator would be disproportionate.
B.-The Government considers that these criticisms are unfounded.
1. It wishes to point out, first as regards the crime of racolage, that the legislator has determined the constituent elements of the infringement in clear and precise terms which satisfy the requirements of Article 8 of the Declaration of the Rights of Decision No. 80-127 DC of 19 and 20 January 1981; Decision No. 84-176 DC of 25 July 1984; Decision No. 84-183 DC of 18 January 1985)
Racolage is already included in the Penal Code, which article R. 625-8 punishes as a contravention of the 5th class, the fact, by any means, of proceeding publicly to the racolage of others in order to incite sexual
. Place, that the article criticised precisely determined the constituent elements of the new offence of public soliciting. Thus, for the offence to be regarded as constituted, it will be necessary for it to be proved that the person concerned, even by adopting a passive attitude, publicly incited others to sexual relations by means of remuneration or Promise of remuneration. The legislator circumscribed the application of the offence of racolage to these situations alone. In so doing, he has been able to crack down on specific behaviour, reflecting the fact of prostitution which is liable to disturb public order without proclaiming prostitution as such, as long as it is carried out without a nuisance to society
In this respect, the notion " Even passive attitude " Cannot be described as fuzzy or imprecise, since it cannot be dissociated from the other constituent elements of the infringement. Even if it will no longer be necessary to prove that the person being prosecuted has spoken to another person in order to offer him sexual relations, it will in any event be for the public prosecutor to prove the existence of a Incitement of others to tariffed sexual relations.
In these circumstances, it is not possible to refer, as the remedies do, to the old case-law of the criminal courts which refused, with regard to the repression of "attitudes of nature" To provoke the debauchery, to impose convictions on the basis of the breach of the fifth class against the racolage; the criminal courts had, in fact, taken note of the repeal of the third class ticket which Reprimed passive soliciting and logically refused to apply to other assumptions the provisions of the 5th class ticket repriming only the active racolage. This case-law seems inconceivable to be transposed to the offence created by the criticised article, particularly since the legislature expressly introduced an additional constituent element in the financial contribution of the sexual relationship, that One cannot detach from " The same passive attitude " Which is one of the possible expressions of the racolage.
Lastly, it must be pointed out that the provision in question has neither the purpose nor the effect of driving the file of persons engaged in Prostitution. In addition to the fact that it is inoperative since it is based on the invocation of an international convention which is not one of the standards which the Constitutional Council takes into account in the context of the constitutional review of the laws, the Therefore, the criticism made on this point by the remedies is in fact lacking.
2. With regard to the principle of the need for penalties, which is also the result of Article 8 of the Declaration on Human and Citizens' Rights, it must be borne in mind that the Constitutional Council is constantly considering that it does not have a power of assessment And that, in the absence of a clear disproportion between the offence and the penalty incurred, it is not for it to substitute its own assessment for that of the legislature (Decision No. 80-127 DC of 19 and 20 January 1981; Decision No 84-176 DC of 25 July 1984; Decision No 86-215 DC of 3 September 1986; Decision No 92-316 DC of 20 January 1993; Decision No 99-411 DC of 16 June 1999)
Inspired by considerations related to the safeguarding of public order, which is a goal of constitutional value. In addition, the institution of adapted criminal provisions to combat the phenomena of prostitution currently observed in French territory-which show that many prostitutes of foreign nationality are victims of networks Of trafficking in human beings-can only contribute to respect for the dignity of the human person, which presents the character of a constitutional principle (Decision No. 94-343/344 DC of 27 July 1994). In fact, the law has several provisions aimed at ensuring the protection and social reintegration of persons engaged in prostitution (see sections 42, 43 and 76 of the Law on Internal Security)
Considered that the repression organised by Article R. 625-8 was insufficient today, in view of the significant increase in the phenomena of prostitution, particularly of foreign origin, found on the national territory. It must be noted that more and more often, because of their number as conditions in which they are being driven to engage in their activity on French territory, these prostitutes are more aggressive and outraged and are Present in places that are particularly inadequate. These repeated disturbances to public order and tranquillity have led many mayors to take municipal anti-prostitution decrees, sanctioned only by the penalty of fine for the first class tickets under the law. Article R. 610-5 of the Criminal Code. But this response seems inadequate and inadequate, in that it has the sole effect of displacing the place of the unrest. That is why the legislature has decided to strengthen criminal criminalisation, in order to combat the whole of the national territory against new phenomena which were unknown when it had previously, in 1992, abolished the criminalisation of Passive racking.
3. As regards the criminalisation of the client of a vulnerable prostitute, it can be pointed out that Article 225-12-1 of the Criminal Code already represses the client of a minor who is engaged in prostitution. The legislator also considered it appropriate to punish those who would benefit from the state of weakness of prostitutes who have a particular vulnerability, apparent or known, due to illness, infirmity, physical disability or The
of vulnerability does not constitute an innovation of the law, but it classifies the character of an aggravating circumstance as an aggravating circumstance for many criminal offences, for example For murder (art. 221-4 of the Penal Code), torture or acts of barbarism (art. 222-3 and 222-4 of the Criminal Code), violence (art. 222-8, 222-10, 222-12, 222-13 and 222-14 of the Criminal Code), rape (art. 222-24 of the Criminal Code), sexual assault (art. 222-29 of the Penal Code), theft (art. 311-4 of the Penal Code), extortion of funds (art. 312-2 of the Criminal Code) or the scam (art. 313-2 criminal code).


VII. -On Article 51


A. -Article 51 of the Law on Internal Security aims, by supplementing Article 225-10 of the Penal Code, to suppress the fact of selling, renting or making available to one or more persons of vehicles of all kinds knowing that they are The
of the references criticise this provision by arguing that it would disregard individual freedom, the principle of the dignity of the human person and the principle of the need for penalties and would, in In addition, infringement of the freedom to undertake.
B.-This argument can only be dismissed.
It is important to note that the impugned provision did not, contrary to what is supported, nor for the purpose or effect of prohibiting persons Engaged in prostitution to acquire or hold a vehicle. It is intended to incriminate persons who make vehicles available to prostitutes in knowledge of the cause, knowing that prostitutes will use these vehicles to engage in prostitution. Provisions of this order, contained in article 225-10 of the Penal Code precisely complemented by the article criticised, already repress particular forms of pimping, such as hotel pimping.
In the context of its power In its assessment, the legislature considered that it was necessary to specifically crack down on such behaviour because of the observed development of prostitution phenomena. It should be noted that the provision of vehicles is, in some parts of the national territory, a particularly developed and constantly increasing form of procuring. It has become essential for the legislator, so that an effective fight can be taken against these practices, to equate this form of delinquency with those described as 'hotel proxies'. A penalty of ten years' imprisonment and a fine of EUR 750 000 will thus ensure, as in the case of hotel pimping, deterrence and repression that the general provisions against simple pimping provide for Five years' imprisonment and a fine of EUR 150 000 (Art. 225-5 of the Criminal Code)
In deciding to deal specifically with such behaviour, the legislator cannot be regarded as having committed a manifest error of assessment. For the surplus, having regard to the object of the provision criticised, it is hard to see how it would undermine individual freedom, respect for the dignity of the human person or the freedom to undertake.


VIII. -On item 53


A. -Section 53 of the Law on Internal Security, inserting articles 322-4-1 and 322-15 -1 into the Penal Code, is intended to suppress the establishment of a meeting place, in order to establish a dwelling, on land belonging to a municipality which Complied with its obligations under Act No. 2000-614 of 5 July 2000 relating to the reception and housing of Travellers, or to any other owner, without being in a position to justify his or her authorization. According
the authors of the remedies, those provisions would disregard the principle of necessity of the penalties laid down in Article 8 of the Declaration of Human Rights and the Citizen, the right to housing, the right to housing And the freedom to come and go, as well as the principle of personal criminal liability.
B.-Such arguments are unfounded.
1. The impugned provision is intended to protect the constitutionally guaranteed right to property, which is now often called into question by illegal facilities on land owned either by public authorities or by Private owner. The law distinguishes between the lands belonging to the municipalities which have not complied with the obligations imposed on them by the departmental scheme provided for in Article 2 of Law No. 2000-614 of 5 July 2000, of the lands of other owners. This distinction is based on legitimate, proportionate and relevant grounds for the purpose of the law: it is not to quell the occupation of communal land where the municipalities have not met their host obligations Travellers, which testifies to the balance of the provision and should make it possible to accelerate the implementation of the departmental schemes in order to guarantee the right to housing of Travellers by the realisation of communal areas Reception.
It should be pointed out that the authorities of the State and those of the local authorities are frequently seized of difficulties connected with illegal installations on private land, which may affect a large number of vehicles And caravans, which are often accompanied by effractions, damage to property, or even homeowners. The institution by the law of a specific crime will effectively sanction such behaviour and will present a deterrent, which currently does not have the procedures that the owners are likely to engage in Civil or administrative courts.
The penalties imposed by Article 53 of the law cannot be regarded as manifestly disproportionate. The principal sentence of six months' imprisonment and a fine of EUR 3 750 shall be proportionate to the offence which it intends to punish, which is a violation of the right to property. It can be recalled, in this regard, that Article 322-1 of the Criminal Code punishes the destruction, degradation or deterioration of a property belonging to another person of two years' imprisonment and a fine of EUR 30 000, unless it has resulted in damage Light. Article L. 428-1 of the Environment Code penalised hunting on the grounds of another person without his consent of three months' imprisonment and a fine of EUR 3 750; if the offence is committed during the night, the penalty shall be extended to two
The complementary penalties provided for in the article, including the suspension of driving licences, are directly related to the commission of the offence when the offence is carried out by means of a vehicle. The provision of these additional penalties is by no means automatic or compulsory: it will be for the criminal court, in accordance with the general provisions of the Penal Code relating to complementary penalties, to determine in each case whether there is It
also be noted that Parliament has limited the maximum period of licence suspension to three years. And, with regard to the additional penalty of confiscation of vehicles, it must be stressed that the legislature has excluded from its scope vehicles intended for housing, in consideration of the principle of the inviolability of residence Constitutionally protected. There are other examples of complementary penalties which appear to be particularly appropriate for the suppression of behaviour which is intended to be repressed: thus, to keep to the previously cited example of the code of the environment which sanctions Hunting on the grounds of another person, Article L. 428-9 of that Code provides for the confiscation of arms, nets, gear and other hunting instruments, as well as aircraft, motor vehicles or other instruments, as supplementary and incidental penalties; Other vehicles used by offenders.
It cannot, therefore, be argued that the penalties provided for in section 53 of the Act are clearly disproportion
While it is true that Articles 8 and 9 of the Declaration of Human and Citizen Rights imply that no one is punishable only by its own fact (Decision No. 99-411 DC of 16 June 1999), this principle, moreover, recalled by Article 121-1 of the Code
principle does not prohibit, in fact, taking into account the fact that a crime was committed in a meeting as a constituent element or as an aggravating circumstance in that crime. It is necessary to observe, in the case of a crime, that the provisions of Article 121-3 of the Criminal Code, according to which " There is no crime without intent to commit it ", will apply in full to the offence provided for in the article. It will therefore be up to the prosecution, in accordance with the rights of the defence, to establish the intention of each person being prosecuted. The persons concerned may invoke the provisions of Article 122-3 of the Criminal Code, which states that " Is not criminally liable to the person who justifies believing, in error on the right that it was not in a position to avoid, Legitimate power to perform the act " That she has committed. In no case shall the provisions introduced in the Penal Code by Article 53 of the Law on Internal Security lead to the conviction of persons who have not intentionally contributed to the commission of the offence.


IX. -On items 64 and 65


A. -Section 64 of the Act, which inserts articles 225-12-5 to 225-12-7 as part of the Penal Code, is intended to define and suppress the exploitation of begging. Section 65, for its part, represses the solicitation of funds, values, or property, in a meeting and in an aggressive manner, or under threat from a dangerous animal.
Senators and Members of the House of Commons That these provisions would be contrary to the principles set out in Articles 8 and 9 of the Declaration on Human and Citizens' Rights. They note, in particular, that the acts punished by Article 65 already fall within the scope of Articles 312-1 and R. 623-3 of the Criminal Code and stress that the adoption of the provisions in question would constitute a misappropriation of procedure
The Government does not share this analysis.
Sections 64 and 65 of the Law on Internal Security are aimed at cracking down on new and specific forms of begging that have developed considerably in recent years in many cases. Cities of France. These forms of begging reflect the exploitation of poverty by criminal
. The purpose of the new offence created by Article 64 is to provide for the punishment of those who habitually supervise, assist or facilitate the transport of beggars in order to benefit from it; it provides for aggravating circumstances for Take into account the youth of the begging and their vulnerability, the international character of the criminal network for the exploitation of begging, or the violent behaviour of the people being prosecuted.
With regard to the principle Of the legality of offences and penalties, it can be recalled that the constitutional case-law states, in the case of crimes and offences, that guilt cannot be the result of the mere material accountability of criminal acts sanctioned and, in the case of The definition of a criminal offence must include, in addition to the material element of the offence, the moral element, whether intentional or not, of it (Decision No 99-411 DC of 16 June 1999).
In the present case, Article 64 The legislation discharged satisfies these requirements by seeking to sanction personal enrichment resulting from the exploitation of begging. This unfair personal enrichment constitutes the central element of the new offence, as is the result of the name of the offence, entitled " Exploitation of begging ", of the terms of 1 ° and 2 ° of Article 225-12-5 added to the Penal Code Mentioning the fact of " Take advantage " The begging of others, of the 3 ° of the same article ("to hire, train or hijack a person for the purpose of giving it to begging") Or 4 ° (" to hire, train or hijack for purposes "). It can also be pointed out that the article criticised is based on provisions which already exist in the field of procuring (art. 225-5 of the Penal Code).
It is clear, in those circumstances, that the person liable to be incriminated for the exploitation of begging cannot be the person who, living in the same precarious conditions as the beggar, would be confined to sharing Pooled resources: the intentional element linked to the will to operate Personal enrichment " Would be clearly lacking in order to be convicted. Moreover, as regards the situation of a couple in a precarious state or that of two friends in distress, it must be stressed that the offence is constituted, as expressly stated by the legislator, only if the person cannot justify The origin of its resources. If this person beggars or has other resources, even precarious, the offence will not be constituted.
In the light of the principle of necessity of the penalties, it must be observed that the legislator has determined, without manifest error of assessment, The amount of the penalties provided for according to the objective circumstances of the commission of the offence. For example, the legislator has taken care to fix progressive penalties: the main offence of exploiting the begging of others is punishable by up to three years' imprisonment and a fine of 45 000 EUR; where the crime is accompanied by Aggravating circumstances such as the minority or the particular vulnerability of the exploited person, the penalties shall be increased to five years' imprisonment and a fine of EUR 75 000; if the facts are committed in organised crime, the offence shall be accompanied by Penalties of ten years' imprisonment and EUR 1.5 million fine.
Given the extent and severity of the phenomena of exploitation of the begging currently found in many urban areas, the institution of these penalties Is not manifestly disproportionate.
2. The criminalisation instituted by Article 65 is intended, for its part, to combat requests for funds under duress carried out on the public road, in a meeting and in an aggressive manner, or under the threat of a dangerous animal. It will make it possible to combat net behaviour increasing and increasingly difficult to tolerate by society, while the demand for funds under duress has not been suppressed by the general criminal law since the abandonment in 1994 of The criminalisation of begging. The new provision refers only to targeted forms of begging which are characterised by intimidation. To this end, the criminalisation is based on objective criteria which are the threat of dangerous animals or aggressive begging in a meeting.
In view of the definition of its constituent elements, this new offence does not cover The same as other criminal offences, in particular the extortion of funds under Article 312-1 of the Criminal Code. In fact, the scope of these offences differs in two respects: on the one hand, in that the offence instituted by section 65 of the law referred to is limited to the facts on the public road and, on the other hand, in that it makes it possible to seize the Intimidation attitudes which do not necessarily fall within the scope of the offence of extortion.
Moreover, it has been held that the establishment of two criminal offences against the same fact is not, by itself, contrary to the Constitution, even if Article 8 of the Declaration of Human and Citizen Rights implies that in such a case the penalties incurred may not exceed the highest legal maximum. It is then for the judicial authorities to respect the principle of proportionality of penalties in the application of criminal law (Decision No. 99-411 DC of 16 June 1999; Decision No. 2001-455 DC of 12 January 2002). However, in this case and in any case, as is the case for other provisions of the Penal Code (for example, the second paragraph of Article 322-1 which specifically represses the fact of drawing inscriptions, signs and drawings on facades, tracks Public, street furniture or vehicles), the criminal judge would be led to apply the special provisions against the demand for funds under duress on the public road, other than the general provisions against extortion of Funds.
Finally, it can be noted that the grievance alleging " Procedure misappropriation " Is without foundation. If it is true that the commission of the offence of applying for funds under duress on the public road will allow the placement in custody of a suspected person to be considered, it must be observed that such an option is open for all the offences punishable A prison sentence. In accordance with the general rules of the criminal procedure, the judicial police officer will be required to immediately inform the judicial authority and the control of the custody order by the public prosecutor or, where appropriate, by the judge Statement, will be fully exercised as for any other offence resulting in this type of enforcement action.


X. -On Article 75


A. -Article 75 of the Law referred to, amending Order No. 45-2658 of 2 November 1945, is intended to extend the list of cases allowing the withdrawal of the temporary residence permit. Withdrawal will be possible when the alien has committed acts, which constitute a disorder of public order, such as pimping, trafficking in human beings, exploitation of begging, robbery in public transport, or According
the Members of Parliament, the authors of the second action, these provisions would be imprecise and would lead to an excessive attack on the principles of the presumption of innocence, the rights of the defence, respect for private and family life, and so on.
B.-This argument is unfounded.
The removal of the temporary residence card for reasons related to public order, provided for in the article criticised, presents the character of a police measure Administrative. It will not be likely to be pronounced by the administrative authority, under the control of the judge of the excess of power, unless it is established that the persons concerned have actually committed the facts likely to justify the implementation of the The measure. Of course, the law does not require the intervention of a removal order on the condition that the persons concerned, " Criminal prosecution " has been the subject of a conviction by the criminal courts, but it will be That the decisions on withdrawal, sanctioned by the administrative court, are not unlawful, that the materiality of the criminal acts punishable and their accountability are established by the administrative
. The withdrawal is the number of adverse individual decisions which constitute police measures and which repeal acts of law-making. They must, as a result, be reasoned pursuant to the Act of 11 July 1979 and may lawfully intervene, pursuant to Article 24 of the Law of 12 April 2000, only after an adversarial procedure. It can also be observed that it will be up to the administrative authority, when it will appreciate in each case whether it is necessary to withdraw the temporary residence card, to reconcile the imperatives of preservation of the order Public, in particular the right to respect for private and family life protected in particular by Article 8 of the European Convention for the Protection of Human Rights and Fundamental
. In those circumstances, it appears that the complaints alleging disregard for the presumption of innocence, the infringement of private and family life, and the infringement of the rights of the defence must be dismissed as lacking in fact. The same is true of the complaint that the provision is imprecise, since it is clear from the very wording used by the legislature that it has specifically identified the list of cases which might justify the withdrawal of the residence card Temporary. The same answer should be given if we looked at the measure not as a mere police measure but as an administrative sanction (Decision 97-389 DC of 22 April 1997).


XI. -On Article 76


A. -Section 76 of the Act provides for the issuance abroad of a complaint or testifying against a person accused of procuring or assimilating a provisional residence permit, unless the person's presence constitutes a threat to the Public order, as well as a resident card in the case of a final conviction of the person involved. It refers to a decree in the Council of State to determine the arrangements for the protection, reception and accommodation of the alien to whom a temporary residence permit is
. Those provisions would infringe on individual liberty, that the condition relating to the threat to public order would be excessively restrictive and that there would be no justification for making the issuance of a resident card at the end of the
B.-These criticisms seem to have to be dismissed.
The first two paragraphs of the article criticised merely highlight the possibility, already open, of issuing a provisional residence permit. A foreigner who has filed a complaint against the perpetrator of procuring or trafficking in human beings. Such a title was already liable to be issued by the administrative authority in the context of the discretion it holds from the order of 2 November 1945. However, by making explicit these powers, the legislator has been able to allow persons who wish to assert their status as witnesses or victims in the course of a judicial procedure to remain on a regular basis in the territory National. The fact of stabilising their situation with regard to the rules of residence appears, in fact, to enable them effectively to lodge a complaint or to testify, which can only encourage the conduct of investigations aimed at dismantling the Criminal networks.
The reference in the criticised article to the absence of a threat to public order resulting from the presence of the person concerned in the national territory cannot be found to be contrary to the Constitution. It merely recalls the general condition of preservation of public order, which is an objective of constitutional value and already contained in several provisions of the ordinance of 2 November 1945. This is a normal condition of exclusion or questioning of the right to stay abroad, which is assessed by the administrative authority in relation to all the circumstances related to the situation of the person concerned. It is justified in this case in that it ensures that the persons concerned have broken with the middle of prostitution.
The fact that section 76 provides for the issuance of the resident card only for the sole purpose The final conviction of the person concerned is no more contrary to the Constitution. The economy of the provision is intended to strike a balance between the protection of the author of the complaint or the witness, intended by the legislator in humanitarian capacity and for the necessities of the judicial procedure, and the protection of the person put in The criminal procedure. It is both to avoid undue testimonies and to allow the author of the complaint, that his testimony would expose to threats in the case of a return to his country of origin, to remain in France. In this respect, it is important to determine an objective criterion for deciding on the issue of the resident card, which is a long-term title with a very protective status with regard to the stay. In any event, it remains that the reference made by the legislator to the conviction of the person concerned for the issue of the resident card does not have the effect of depriving the administrative authority of the power to issue to The person concerned a long-term title, in the context of his discretion, in particular where his or her quality of victim has been clearly established in the course of judicial proceedings.


XII. -Article 96


A. -Article 96 of the law referred to, including provisions resulting from Act No. 2001-1062 of 15 November 2001 on daily safety, empowers authorized private security guards to carry out visual inspection of hand luggage and, With the consent of the owner, in their search. It also allows persons specially authorised and authorised by the State representative in the département to carry out security palpations, with the express consent of the persons concerned, in the event of special circumstances Linked to the existence of serious threats to public security and found by the prefectoral decree communicated to the public prosecutor. Article 96 also provides that private security guards and members of the security services referred to in Article 23 of Act No. 95-73 of 21 January 1995 on security orientation and programming will be able to Security on the occasion of sporting, recreational or cultural events organized in an enclosure and which bring together more than 1500 spectators.
The senators and the applicants criticise those provisions which they consider to be contrary to the Articles 34 and 66 of the Constitution.
B.-That argument cannot be accepted.
The complaint of negative incompetence can only be rejected when the legislator has precisely determined the content of the operations which he intended Authorize and the circumstances in which it is to be carried out. The reference to " Special circumstances related to the existence of serious threats to public safety " Is particularly restrictive and demanding, and corresponds, for the most part, to the consideration of terrorist threats that Fear of attacks in public places. It must be observed, in addition, that the law requires that these special circumstances be observed by a prefectural order, which must determine the duration and places of the checks and which is communicated to the public
. However, the wording of Article 66 of the Constitution, which makes the judicial authority the guardian of individual freedom, is no more misunderstood. The measures authorised by Article 96, in order to preserve public order and within an administrative police framework, do not in any way lead to the physical protection of the persons concerned. They are intended only to allow for security palpations, which are distinct from the search of bodies whose regime is, for its part, assimilated to the search (Cass. Scream. January 22, 1953, bull. Scream. N ° 24 p. 36); these safety palpations can only be carried out with the express consent of the persons concerned, with the sole consequence, in the case of refusal, of not being able to access the premises concerned.


XIII. -Article 113


A. -Section 113 inserts a section 433-5-1 in the Criminal Code that reprimands publicly outrages the national anthem or the tricolor flag during an event organized or regulated by public
. This article would be a serious attack on the freedom of expression, conscience and opinion guaranteed by Articles 1, 10 and 11 of the Declaration on Human and Citizens' Rights. They also argue that it would disregard the principle of legality of offences and penalties and the need for the penalties set out in section 8 of this Declaration.
B.-The Government does not subscribe to this analysis.
It does not Doubts that the freedom of communication and expression proclaimed by Article 11 of the Declaration of Human and Citizen Rights presents the character of fundamental and essential freedom. It is, however, for the legislator to reconcile this constitutionally guaranteed freedom with other constitutional rules or principles, as well as with objectives of constitutional value such as the safeguarding of public order (decision No. 82-141 DC of 27 July 1982; Decision No. 94-345 DC of 29 July 1994; Decision No. 2000-433 DC of 27 July 2000). As regards the determination of crimes and offences, in the light of the principle of the need for penalties, it must also be borne in mind that the legislature has a discretion which is not liable to be challenged by the Constitutional Council If there is a clear disproportion.
In the present case, the legislator has done precisely this conciliation between the freedom of communication and the safeguarding of public order. It considered, in the context of its discretion, that public outrage caused in certain circumstances by the tricolor flag or the national anthem, which are set out in Article 2 of the Constitution, is likely to affect the National cohesion and public order. In deciding to punish such an offence as an offence, there has been no undue interference with the freedom of expression and communication.
It can be noted that French criminal law already has incriminations which are intended to protect National symbols is a justified attack on the freedom of expression or of communication. Thus, Article 433-5 of the Penal Code punishes the contempt committed against a person who is a depositary of the public authority, in order to protect, beyond the person, the representation of the State or the public authority embodied by that person. Article 440 of the Code of Military Justice punishes five years' imprisonment for any member or individual on board who is in contempt of the flag or the army; if the perpetrator is an officer, he is also removed from his rank. Article 322-2 of the Penal Code specifically represses the degradations of public buildings or goods intended for public use or decoration. Moreover, the provisions of Article 24 and 24 bis of the Law of 29 July 1881, in particular, reprimand the facts of apology or against crimes against humanity in conditions which the Court of Cassation did not consider to be contrary to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Cass. Scream. February 23, 1993, bull. Scream. No. 86; Cass. Scream. December 20, 1994, bull. Scream. No. 424).
With regard to the principle of the legality of offences and penalties, it must be noted that the legislator has precisely determined the constituent elements of the offence which it intends to repress. The concept of public outrage is already contained in the Penal Code and refers to words, gestures or threats, writings or images of any kind that may affect dignity or respect. The legislature expressly limited the scope of the offence to cases of public outrages committed during demonstrations organised or regulated by public authorities, which excludes repression outside of these assumptions. The legislator did not, at last, derogate from the principle of personal criminal responsibility, referred to in Article 121 (1) of the Criminal Code: it will be for the public prosecutor to provide proof, for each person being prosecuted, that she has Personally committed the facts of the offence.


XIV. -Articles 141 and 142


A. -Articles 141 and 142, amending Order No. 45-2658 of 2 November 1945, adapt some of the provisions of that order applicable in French Guiana and the commune of Saint-Martin
These articles are intended to perpetuate temporary provisions and as a consequence of depriving them of constitutional rights and guarantees in French Guiana and Saint-Martin, such as the principle of the rights of the defence
Article
of the Act referred to, amending Article 40 of the Order of 2 November 1945, has the effect of limiting the application of specific provisions relating to orders to French Guiana and the municipality of Saint-Martin A prefect of reconduct at the border and the remedies against those orders. Those provisions shall, without limitation of duration, derogate from those of Article 22a of the Ordinance organizing a suspensive appeal system promptly before the Administrative Court. Article 142, for its part, perpetuates the provisions of Article 12c of the Order of 2 November 1945, which excluded the application in French Guiana and the commune of Saint-Martin from the provisions relating to the committee on the residence
. These derogations limited to the application of the order of 2 November 1945 in the Department of Guiana and on the territory of the commune of Saint-Martin (Guadeloupe) are justified by the geographical features of those territories. The special situation of the Department of Guiana on the movement of persons has been recognised by the Constitutional Council (Decision No. 97-389 DC of 22 April 1997). The fact that the island of Saint-Martin belongs to both France and the Netherlands, without border control between the two zones, and that the island's airport is under Dutch sovereignty, similarly justifies the application on the In
, the rules applicable in those territories do not upset the balance that the respect of the Constitution requires between the requirements of public order and the Safeguarding constitutionally guaranteed rights and freedoms. In particular, with regard to the remedies against arrest orders at the border, it must be noted that if the suspensive appeal system organised by Article 22a of the Order of 2 November 1945 does not apply, the decisions Administrative proceedings in question are subject to appeal before the administrative court in accordance with the conditions of common law, including the implementation of the interim procedures. As for the consultation of the committee on the residence permit, it has already been expressly held that it was open to the legislator, without regard to any constitutional rule, to delete a consultative consultation of that order (Decision No 97-389 DC of 22 April 1997).


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In the end, the Government is of the opinion that none of the complaints articulated by the applicants are such as to lead to the censorship of the provisions of the The Internal Security Act. He therefore considered that the Constitutional Council should reject the appeals before it.


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