Key Benefits:
ACT PRESCRIBING THE HEARING APPROVAL OF COMPARENCY ON EARLY RECOGNITION OF CULPABILITY
Mr. President of the Constitutional Council, ladies and gentlemen of the Constitutional Council, we have the honour to refer you, in accordance with The second paragraph of Article 61 of the Constitution, the whole of the law specifying the conduct of the approval hearing on prior admission of guilt.
I.-The law criticised consists of a single article which Modifies the last sentence of the second paragraph of Article 495-9 of the Criminal procedure by drafting it as follows: The procedure provided for in this paragraph shall take place in open court; the presence of the Public Prosecutor at that hearing shall not be compulsory. "
The stated purpose of this provision is to overcome the recent concordant decisions of the Court of Cassation and the Council of State with respect to the respect of the founding rules of the criminal trial, and pronounced against your own Decision of 2 March 2004 on the law on the adaptation of justice to developments in serious crime.
The law is deliberately violating the constitutional requirements guaranteeing the right to a fair trial and the requirement Individualisation of the sentence and sanctions (II) and Article 34 of the Constitution And the principle of equality before the law (III
. -Breach of the right to a fair trial as a result of Articles 66 of the Constitution and Articles 6, 8, 9 and 16 of the 1789 Declaration of Human and Citizen's Rights and the requirement of individualisation of punishment and penalties Arising from your jurisprudence based on Article 8 of the said Declaration:
II-1. Your case law has long devoted the constitutional value of the right to a fair trial. It is founded in domestic law on Articles 66 of the Constitution and Articles 6, 8, 9 and 16 of the 1789 Declaration. It is a direct reflection of the basic requirements of Article 6 of the European Convention for the Protection of Human
. As you have judged " That the principle of respect for the rights of the defence is one of the fundamental principles recognised by the laws of the Republic reaffirmed by the Preamble of the Constitution of 27 October 1946, to which the Preamble of the Constitution of 1958 refers ; that it implies, in particular in criminal matters, the existence of a fair and just procedure guaranteeing the balance of the rights of the parties " (Decision 89-260 DC of 28 July 1989, recital 44). It is through this same principle that you examined the treaty establishing an international criminal court by considering that " The award is made in open court; that the constitutional requirements respecting the observance of the rights of the defence and the existence of a fair and equitable procedure, guaranteeing the balance of the rights of the parties, are thus Satisfied " (Decision 98-404 DC of 22 January 1999, recital 25).
In these circumstances, it is very logical that you have censored the absence of advertising of the public approval hearing in the context of the appearance procedure on Prior admission of guilt (Decision No. 2004-692 DC of 2 March 2004).
The result is that the criminal trial is a whole in which all parties, the accused and the victim, including the public prosecutor's representative At the hearing, contribute to an objective justice decision acceptable to all The parties. This consistent process is the guarantee that a full trial has taken place in which all the elements have been known and discussed by all parties, from the beginning to the end of the proceedings. This is even more necessary, and constitutionally required, when a custodial sentence is likely to be imposed.
II-2. It is in this logic that the Court of Cassation solemnly recalled by its opinion of 18 April 2005 that, in the context of an approval hearing, the prosecutor of the Republic is, in accordance with Article 32 of the Code of Criminal Procedure, held To attend the proceedings at that hearing, the decision to be pronounced in its presence.
It is on the same basis that the Council of State, in its interim ruling, suspended the circular of 19 April 2005 by which the Minister of Justice was trying to defeat the opinion of the aforementioned Court of Cassation. This order of the highest administrative jurisdiction has been issued, in this respect, to the visa of the European Convention on Human Rights.
This case-law cannot be surprising when it implements the provisions of the Code of Criminal procedure inspired by the constitutional requirements applicable to the fair trial. We will only mention two classic decisions which have strongly reaffirmed that the criminal trial and the criminal court form a whole. Thus, the Court of Cassation ruled that " The Public Prosecutor's Office is an integral and necessary part of the criminal courts; that it is the result of Articles 460, 512 and 592 of the Code of Criminal Procedure which it must, on pain of invalidity, be heard in its requisitions in the second as in the first Degree, that this is a legal requirement whose non-compliance, when the public action is in question, damages the interests of all parties to the criminal trial " (Crim., May 11, 1978, Bull. No. 150).
In the same logic, the Criminal Division of the Court of Cassation held that the public prosecutor, an integral and necessary part of the law-enforcement courts, should be present in the proceedings, be heard In requisitions and " To attend the decision; that the latter provision is necessary, not only when the judgment is rendered in the presence of the three judges of the seat who knew and deliberated on the case, but still when the decision is read By one of them in accordance with the provisions laid down in Article 485 of the Code of Criminal Procedure ' (Crim., January 18, 1995, Bull. 27).
II-3. These decisions, which are based on the right to a fair trial, in accordance with the interests of all parties and the society represented by the public prosecutor, echo the reasoning of your decision of 2 March 2004 by which you had Censored the absence of a public hearing in the approval phase.
To be convinced, the authorized commentary in the Cahiers du Conseil constitutionnel will be taken to light. Thus, he writes, " The certification session must be public, precisely because it is a true criminal judgment. Of course, the adversarial component will often be null and void, and it is desirable that this be so for the practical success of the procedure. But it cannot be ruled out otherwise in the presence of the victim who, let us remember, is duly summoned. The statements made by the Commission could, for example, cast doubt on the extent of the facts admitted; a starting point could be raised in this regard; a suspicion would arise in the minds of the people. What is more, the issue of reparation can also be the subject of debate.
The closed session is all the more shocking as the approval session will refer to offences which, without being the most serious, are sufficiently serious to be punished A term of imprisonment of five years and the President of the IMT or his or her delegate may, by registration, sentence the accused to one year's imprisonment. We are there in assumptions that seem to call, in the name of the exemplarity of the sentences and under the usual reserves, the presence of the public " (Cahiers du Conseil constitutionnel, point 16).
It is measured in the light of these comments that the approval hearing is a time of the criminal trial in which it is for the President of the court to verify the legal qualification The facts and questioning the justification of the sentence in the light of the circumstances of the offence and the personality of the author. The judge may refuse approval if he considers that the nature of the facts, the personality of the person concerned, the situation of the victim or the interests of the society justify a regular correctional hearing. It may also refuse approval if the victim's statements shed new light on the conditions under which the offence was committed or on the person's personality. These indications, which expressly include one of your interpretation reserves, show that this phase of the criminal trial, as in its other stages, requires the presence or even intervention of the public prosecutor (decision of 2 March 2004,
trial will continue in the presence of the defendant and the victim, it would be difficult to understand that the representative of the prosecutor's office should not be absent as soon as the proceedings continue before the judge of the seat. Except to disregard the right to a fair trial.
Whether the defendant, the victim or the interests of the company are in place, the absence of the public prosecutor at that hearing would make the appearance on prior recognition Guilty of incomplete and partial justice. To the truth, there would be some paradoxes that the law enshrines the circular of 19 April 2005, according to which the presence of the public prosecutor is not necessary at the hearing of the person, or his lawyer, and the verification of the Legal qualification of the facts, but reverts to the reading of the decision which can be made-according to the same circular-by the Registrar and not the judge who made the decision.
Thus to follow the Chancery and the Government, the criminal trial would be transformed into vaudeville during which the representative of the prosecutor's office Would come out with a door when the defendant and his lawyer enter the room at the same time as the victim. The following scene would see the public prosecutor come back to hear the Clerk read the decision rendered by a magistrate in the silent or absent seat! Feydeau could have fun. Not constitutional requirements when a custodial sentence may be imposed.
In addition, the absence of the procedural prosecutor during an incomplete hearing would not allow the judge to make a sufficiently informed decision And therefore violates the principle of the individualisation of the sentence in which the penalty must be determined which must remain balanced with regard to its necessity. That this defect is all the more serious as " All those sentenced to the same penalty shall not have access to the same schemes as long as they meet the requirements ", an old requirement (Decision No. 78-97 DC of 27 July 1978) and repeatedly reaffirmed.
Finally, it must be admitted that From the point of view of public order and the proper administration of justice, such a random and incomplete procedure is not more satisfactory. If the judge of the seat does not find in the conduct of the approval hearing the reasons sufficient to validate the agreement previously reached, it may be led to refer the case to the court. The criminal response will then be delayed and case management will be managed. This could, however, be avoided in some cases if the public prosecutor present at the hearing shed light on the materiality of the facts or their legal qualification. Another equally serious hypothesis is that the judge who, before proceeding with the approval, wishes to have an explanatory exchange with the public prosecutor, will not be able to ask for it since, according to the subject of the custody of the seals in public The National Assembly on 12 July, " The question of the presence of the public prosecutor at the hearing will depend on the will of the prosecutor of the Republic and not that of the judge of the seat.
................ The pursuit of the general interest corresponding here to the public order.
Of all these leaders, censorship is incurred.
III. -Breach of Article 34 of the Constitution and the principle of equality:
In any event, and in the alternative, it is clear from its wording that the article criticising Article 34 of the Constitution entruss the law to lay down the rules concerning the fundamental guarantees given to citizens For the exercise of civil liberties and criminal procedure.
In addition, you consider that the legislator may provide different rules depending on the facts, the situations and the persons to whom they apply on the condition that those rules Differences do not precede unjustified discrimination and are Guarantees equal, in particular as regards the observance of the rights of the defence, which in particular implies a fair and just procedure (Decision No. 2002-461 DC of 29 August 2002)
Or such a procedural route is based on objective and rational criteria defined in advance by the procedural law.
In the present case, the article querying is empty of any precision or criterion explaining the reasons for the reasons Likely to base the decision of the Public Prosecutor's Office to be present at the hearing In
light of the principle of equality before the courts and the constitutional obligations derived from article 34 of the Constitution, the single article in question cannot escape censorship. Except to make the use of time for judges the necessary and sufficient criterion to justify differences in the composition of the law-enforcement courts. Such an option would give a very poor picture of the idea of the public service of justice and of the missions of the Judicial Authority. The principle of equality before the law would then be emptied of its substance.
Of these leaders, censorship is also certain.
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We ask you to believe, Mr. Chairman, ladies and Members of the Constitutional Council, in the expression of our high regard.
(List of signatories: See Decision 2005-520 DC.)