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The Government's Observations On The Appeal Directed Against The Act Strengthen The Fight Against The Recurrence Of Major And Minors

Original Language Title: Observations du Gouvernement sur les recours dirigés contre la loi renforçant la lutte contre la récidive des majeurs et des mineurs

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JORF n°185 of 11 August 2007 page 13489
text No. 11



Government ' s observations on remedies against the law strengthening the fight against recidivism of majors and minors

NOR: CSCL0710799X ELI: Not available


The Constitutional Council was seized, by more than sixty members and more than sixty senators, of two appeals against the law strengthening the fight against the recidivism of majors and minors, adopted on 26 July 2007.
The appeals challenge sections 1, 2, 5, 10 and 11 of the Act. They call for the following comments from the Government.


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I. - Articles 1 and 2


A. - Sections 1 and 2 of the above-mentioned Act create in the Criminal Code two articles 132-18-1 and 132-19-1 which provide, the first for crimes and the second for offences, that a custodial sentence may not be imposed less than thresholds corresponding to specified fractions of the penalties incurred as soon as the perpetrators commit the offences in question in a state of legal recidivism.
In the case of crimes, however, the new section 132-18-1 provides, on the one hand, that the court may impose a penalty below these thresholds in consideration of the circumstances of the offence, the personality of the perpetrator or the guarantees of insertion or reintegration presented by the perpetrator and, on the other hand, that when a crime is committed once again in a state of legal recidivism, the imposition of a penalty below these exceptional thresholds is subject to
With regard to offences, the new article 132-19-1 provides that the court may, by a specially reasoned decision, impose a sentence below the thresholds it determines or a sentence other than imprisonment in the same hypotheses as those established for the crimes. The same article states that the court may not impose a sentence other than imprisonment for recidivism for four categories of offences. If the accused has exceptional guarantees of insertion or reintegration, the court may, however, impose a prison sentence of less than the established thresholds.
The members of Parliament and Senators argued that by reducing the discretion of the court in the event of a new legal recidivism, the legislator would have misunderstood the principle of individualization of the penalties arising from Article 8 of the 1789 Declaration. They further argue that the provisions of articles 1 and 2 would be contrary to the principle of necessity of penalties contained in the same article 8 because the sanctions they provide would be manifestly disproportionate. Successful parliamentarians also grieve for the provisions criticized for violating the right to a fair and equitable procedure and articles 64 and 66 of the Constitution by overly shaping the powers of the judiciary. Finally, they criticize the legislator for having ignored the scope of his jurisdiction and the principle of legality of offences and penalties by refraining from specifying the notion of "exceptional guarantees".
B. The Constitutional Council can only deviate all of these criticisms.
1. The provisions of articles 1 and 2 of the law referred to leave, in all cases which they seek, in particular where the crime or offence is committed once again in a state of legal recidivism, the court has the power to adapt the sentence imposed if certain conditions are met, do not infringe the principle of individualization of sentences.
(a) Where the crime or offence is committed in a state of lawful recidivism, if the provisions of new articles 132-18-1 and 132-19-1 of the Criminal Code provide the principle that the sentence imposed cannot be less than specified thresholds, they nevertheless maintain a broad discretion in the court in the sentence.
Indeed, the very terms of sections 1 and 2 of the law referred to indicate that in a case of legal recidivism, for both crimes and offences, the court may impose a penalty less than the thresholds for three types of grounds: in consideration of the offence, the personality of the perpetrator or the guarantees of insertion or reintegration presented by the perpetrator.
In all cases, the sentence shall be assessed by the judge who may, in addition, always resort to the methods of personalization of the penalties provided for in chapter II of title II of the book 1 of the Criminal Code (cf. art. 132-29 to 132-47: single-seat, suspended or suspended condition with the obligation of work of general interest.
In the case of offences, the law states that the court imposes a penalty less than the thresholds by a specially motivated decision. However, such a procedural requirement does not challenge the discretion of the court. It may be noted that similar requirements have already been established in other cases where the judge makes a decision in a favourable sense to the defendant (cf., for example, the second paragraph of Article 465-1 of the Criminal Code, providing for a special reasoning to exclude the mandate of filing full law of the recidivist convict, or article 222-48-1 of the same Code, in its drafting from the law of March 5, 2007 on the prevention of In addition, always for offences, in the event of recidivism, if the judge may pronounce, provided that the conditions referred to above are met, a penalty below the thresholds, he also has the power to impose a sentence other than imprisonment, among those that section 131-3 of the Criminal Code provides in correctional matters (amendum, general interest work...).
In this way, the law referred does not misunderstand the requirements of the principle of individualization of penalties when it applies to crimes or offences committed in a state of legal recidivism.
(b) Where certain offences are committed once again in a state of legal recidivism, if the provisions of sections 1 and 2 of the criticized law require the imposition of a sentence below the thresholds under stricter conditions, which respond to the desire to ensure effective repression of offences of particular gravity and to prevent their reiteration, they nevertheless preserve a margin of appreciation sufficient for the jurisdiction.
When a crime or certain offences of particular gravity (voluntary violence, offence committed with the aggravating circumstance of violence, assault or sexual assault, and offence punishable by ten years of imprisonment) are committed once again in a state of legal recidivism, the new articles 132-18-1 and 132-19-1 of the Criminal Code provide that the jurisdiction may impose a penalty less than the thresholds they set - by a specially motivated decision if it is an offence Article 132-19-1 adds that, in the event of further recidivism of these categories of offences, the court may not impose a sentence other than imprisonment.
It is true that, by these provisions, the legislator has heard that a sentence of less than the thresholds it has established under stricter conditions when the offender is in a state of recidivism than the recidivism.
But it must be noted that this stricter regime applies to accused persons and defendants who have already been convicted twice and who commit at least one serious crime or offence for the third time. It is lawful for legislators to deter this type of behaviour and ensure the effective suppression of offences of particular gravity, to regulate, in such cases, the margin of appreciation left to the judge. This is why the judge can only impose a penalty less than the minimum penalty if the offender has exceptional guarantees of insertion or reintegration. In doing so, the legislator has limited itself to reducing the conditions under which a sentence of less than the threshold is imposed, as the convicted person is in a state of legal recidivism or a new legal recidivism, with the requirement of exceptional guarantees of insertion or reintegration justified in the latter case.
Undoubtedly, the new provisions of section 132-19-1 of the Criminal Code also diminish the extent of the penalties available to the court by providing that a sentence other than imprisonment may not be imposed in the event of a further recidivism for four specific categories of offences (voluntary violence, offence committed with the aggravating circumstance of violence, assault or sexual assault, offence punishable by ten years' imprisonment).
It must be emphasized, however, that this reduction in the scope of penalties that the judge may impose is the need to effectively suppress the offences listed by the legislator which are of particular gravity. The law referred limits the scale of penalties available to the court in relation to the nature of the facts in question, the gravity of which, in the case of persons who are sentenced for the third time, requires greater severity.
Moreover, it is in the powers recognized by the Constitution to the legislature to determine the penalties for the offences it defines. The creation of alternative sentences to imprisonment, such as the limitation of these alternative sentences, is part of these powers and the principle of individualization of the penalties that the legislator would be required to maintain open to jurisdiction, for all offences and in all circumstances, the entire range of penalties established.
Most importantly, one must insist on the fact that, in any case, the court has the power to adapt the sentence.
On the one hand, if, as stated, the conditions for a sentence below the thresholds are more closely defined in the case of a new legal recidivism, the judge nevertheless maintains a margin of appreciation to recognize that an accused person or defendant has the exceptional guarantees of insertion or reintegration required by the legislator. The condition thus laid by the legislator is more restrictive than in the case of legal recidivism, to take into account the state of new legal recidivism, but the margin of appreciation of the jurisdiction is preserved.
On the other hand, the individualization of the sentence includes various elements: it is in particular the choice of the nature of the sentence, its quantum and its execution modalities. However, in particular the cases in which the judge cannot pronounce a sentence other than imprisonment, his discretionary margin is retained in respect of his quantum and terms of execution. As far as quantum is concerned, once exceptional guarantees of insertion or reintegration have been made, the judge has full freedom in his determination. As for the terms and conditions of execution, the different conditions of stay will also apply here under the conditions previously recalled. It must therefore be emphasized that the deprivation of liberty will necessarily be closed, in whole or in part, only in cases where, in view of the criminal past of the convicted person, the imposition of a stay will be excluded by the provisions of articles 132-29 to 132-47 of the Criminal Code. However, the court will retain the opportunity to freely determine the duration of the firm portion of the sentence as long as it decides to include in part the sentence of imprisonment for probation or a stay with work of general interest. In addition, in cases where the firm party is less than one year, it may be subject to the penalties provided for in the Criminal Code and the Code of Criminal Procedure.
It is the result of all of the foregoing that the provisions criticized by the seizing parliamentarians leave, in all cases, a margin of appreciation sufficient to the jurisdiction, so that they do not infringe on the principle of individualization of the penalties arising from Article 8 of the 1789 Declaration.
2. Sections 1 and 2 of the law referred, which set two thresholds for crimes and offences according to a gradation measured to the gravity of the offences referred to, are not contrary to the principle of necessity of the penalties set out in Article 8 of the Declaration of Human and Citizen Rights.
It should be noted in an opening position that, in the absence of a clear disproportion between the offences and the sanctions concerned, it is not up to the Constitutional Council to substitute its appreciation for that of the legislator (see, for example, No. 92-316 DC of 20 January 1993; No. 2003-467 DC of 13 March 2003). It derives from the provisions of Article 61 of the Constitution and from this jurisprudence that the Constitutional Council cannot exercise general control over the appreciation made by Parliament on the means it retains to achieve the objectives that it has set to which it is invited by members of Parliament and seizing senators.
It must be emphasized, then, that new article 132-18-1 of the Criminal Code provides that, in the case of crimes, the thresholds set by the legislature vary between five years, if the crime is punishable by fifteen years ' imprisonment or detention, and fifteen years, if the crime is punishable by life imprisonment or detention. In the case of offences, the new article 132-19-1 sets the progression between one year, if the offence is punishable by three years of imprisonment, and four years, if the offence is punishable by ten years of imprisonment. For both crimes and offences, the legislator has four degrees.
The criticized provisions thus organize a clear and consistent gradation that is based on the quantum of the deprivation of liberty attached to the offence and, consequently, on the seriousness it takes for the legislator. The fractions established by the legislator to determine the thresholds are all less than half the penalty and, a fortiori, the penalty incurred as a result of the legal recidivism. This state leads to the mechanical aggravation of the sentence: thus for crimes punishable by 15 years of imprisonment and for offences, the deprivation of liberty is doubled, and for crimes punishable by 20 or 30 years of imprisonment, life is then prosecuted (cf. art. 132-8, 132-9 and 132-10 of the Criminal Code). With regard to the offence of robbery with violence and in a meeting, the threshold is set at three years, while the sentence imposed by the recidivist is fourteen years' imprisonment. For the single-flight offence, the threshold is one year, while the sentence of imprisonment that could be applied to the perpetrator when he is in a state of legal recidivism is six years.
The minimum penalties established by articles 1 and 2 of the Act referred to above shall not, therefore, be viewed as manifestly disproportionate.
3. In the light of the foregoing considerations that establish that sections 1 and 2 of the criticized law do not overly regulate the margin of appreciation available to the court in the pronouncement of the sentence, the law referred does not misunderstand the constitutional requirements for the existence of a fair and equitable procedure, guaranteeing the rights of the parties, or the provisions of sections 64 and 66 of the Constitution, contrary to that recourse that
4. The grievances of negative incompetence and lack of knowledge of the principle of legality of offences and penalties addressed to the legislature can only be dismissed as long as the words "exceptional guarantees of insertion and reintegration" are sufficiently clear and accurate.
First, it must be observed that different provisions of the Penal Code already refer to the concepts of insertion and reintegration. Thus, for example, the second paragraph of section 132-24 of the Penal Code on how to customize sentences indicates that the nature, quantum and regime of sentences pronounced are set to reconcile the effective protection of society, the sanction of the convicted person and the interests of the victim with the need to encourage the insertion or reintegration of the convicted person and to prevent the commission of new offences. This drafting, which came out of the Act of 12 December 2005, recalls the denunciation of Decision No. 93-334 DC of 20 January 1994 that the enforcement of custodial sentences in criminal and correctional matters was designed not only to protect society and ensure the punishment of the convicted person, but also to promote the amendment of the prisoner and to prepare for his possible reintegration. In addition, the Code of Criminal Procedure contains expressions that are not far from that used by the legislator in the referred law. Thus the granting of a reduction of penalties, the reduction of the period of security or parole depends on the "gages" or the "serious" "social rehabilitation" of the individual (cf. art. 720-4, 721-1 and 729 of the Code of Criminal Procedure).
Secondly, the grievance of imprecision is unfounded as long as the legislator has, unlike the authors of the appeals, clearly defined the conditions under which the judge may impose a sentence less than the thresholds that he has set by requiring "exceptional guarantees". It must be recalled that this type of guarantees is necessary, in the device established by the legislator, when the convicted person committed a third offence of particular gravity after two convictions and that the recidivism was recorded in the second.
This does not mean that the legislator has established a mechanism to which the jurisdiction should resort only on an exceptional basis, nor required guarantees that would have, by themselves, an exceptional character. The legislator heard, in the event of a new recidivism, require the person concerned, who is anchored in a serious delinquency, that he presents exceptional guarantees in that they are likely to establish his capacity to break with his judicial past.
This exceptional character derives from the reconciliation, on the one hand, of the nature, circumstances of the offence and personality of the perpetrator and, on the other, from the credibility and seriousness of the guarantees of insertion and reintegration offered by the interested party. The guarantees come out of the ordinary, and thus present an exceptional nature, when it is established that, by their reliability, their security and their objectivity, they are likely to justify that the judge imposes a penalty less than the legislators' thresholds for persons for whom the criminal law requires a degree of severity proportionate to the gravity of their course of crime.
Thus, for example, in the case of a person who, twice convicted of crimes in a distant past, has fully reintegrated but, much later, is involved in a rixe and sentenced for voluntary beatings and wounds that have led to death without intent to give it, to have a job, a family, no longer having to deal with justice in the meantime will be circumstances of a nature to be seen as exceptional guarantees of reinsertion In any other case, a minor who follows assiduously an apprenticeship and demonstrates a genuine commitment to insertion may be viewed as presenting exceptional guarantees within the meaning of the provisions criticized. Similarly, a minor sponsored as part of the "sponsorship" operation launched in 2005 by the Ministry of Justice, whose sponsor would testify to his serious efforts to insert, could be recognized as offering such guarantees.
The means raised by the authors of the referrals may, in the light of the above considerations, be excluded.


II. - On Article 5


A. - Section 5 of the referred Act supplements the first paragraph of section 20-2 of the order of February 2, 1945 on child offenders, which sets out the principle of mitigating criminal liability for minors, the essential consequence of which, commonly referred to as "a minority excuse", is to reduce by half the deprivation of liberty incurred, stating that this reduction also applies to the minimum penalties set out in sections 132-1-18 The same article also provides three hypotheses in which the competent court may decide that there is no need to benefit the minor over the age of sixteen from the mitigation of the sentence. When it is taken by the Children's Court, such a decision must be specifically motivated, except for the most serious offences. Attenuation of the sentence does not, however, play when offences of particular gravity and strictly defined were committed once again in a state of legal recidivism. However, the juvenile court may decide otherwise, as well as the children ' s court which decides by a specially reasoned decision.
The seizing members and senators argue, on the one hand, that, as long as the provisions on minimum sentences of deprivation of liberty are applicable to minors, the grievances raised against sections 1 and 2 of the Act referred to would, a fortiori, be based against section 5. They argue, on the other hand, that the provisions of Article 5 would be contrary to the fundamental principles recognized by the laws of the Republic with regard to juvenile justice.
B. - These means cannot be accommodated.
1. New sections 132-18-1 and 132-19-1 of the penal code derived from the above-mentioned Act apply to minors subject, on the one hand, to the conditions set out in the order of 2 February 1945 which determines the measures of protection, assistance, supervision and education to which they may be subject and, on the other hand, to a reduction of half of the thresholds that they set under Article 5 of the new Constitution
In the first place, as long as the law referred to does not amend the 1945 order, its provisions which establish minimum custodial sentences must be interpreted, as they apply to minors, in the light of the provisions of this order, and in particular its articles 2 and 20. As a result, the provisions of sections 132-18-1 and 132-19-1 arising from sections 1 and 2 of the above-mentioned Act will only apply to the extent that the competent court has decided to impose a criminal conviction rather than a measure of protection, assistance, supervision or education, and subject to the requirements set out in sections 2 and 20 of the 1945 Order.
Secondly, according to the terms of section 5 of the Act, the minimum custodial sentences provided for in the latter provisions are reduced by half for minors over thirteen years of age. In doing so, the legislator respected the principle of mitigating juvenile criminal responsibility by age.
Under these conditions, the criticisms developed by the authors of the referrals against the provisions of the law referred to applicable to minors, as they resume means previously examined and are based on the principles of necessity, proportionality and individualization of sentences appear vain.
2. The provisions of section 5 of the law referred to that the mitigation of the sentence does not apply, in some cases, to minors over sixteen years of age, unless the competent court decides otherwise, do not further disregard the constitutional principles of juvenile justice.
It must be emphasized, as an opening, that the 2nd of the I of Article 5 is only to extend the possibility, previously extended by Article 60 of the Act of 5 March 2007 on the prevention of delinquency, offered to the competent court to deviate, for minors over the age of sixteen, the apology of minority provided for in the first paragraph of Article 20-2 of the 1945 Order.
The first two cases, the first one related to the circumstances of the species and to the personality of the minor (1° of section 20-2), the second one concerning the hypothesis of a crime of voluntary violation to the life or physical or mental integrity of the person committed in a state of legal recidivism (2° of section 20-2), remain unchanged.
The referred law adds that the judge's ability to dismiss the excuse of a minority without motivation is now open not only in the case of an offence of voluntary violence, an offence of sexual assault (delits relating to "voluntary violations of physical or mental integrity" in the Act of 5 March 2007), but also an offence committed with the aggravating circumstance of violence committed in a state of legal recidivism (3rd of section 20-2). In so doing, and by maintaining the dispensation for the Children's Court to motivate its decision to exclude the mitigation of criminal liability for minors over sixteen years of age who are in a state of legal recidivism for offences of particular gravity, the legislator did not misunderstand the constitutional principles applicable to minors, with the exclusion of the mitigation of liability justified by the finding, by the court, of the nature of the facts and of the legal recidivism.
Section 5 also provides that the mitigation of the penalty under the first paragraph of section 20-2 of the order, as amended by the law referred to, does not apply to minors over sixteen years of age when the most serious offences, i.e. those mentioned in new 2° and 3° of section 20-2, were committed once again in a state of legal recidivism. However, it is specified that the court of siege may decide otherwise, as well as the children's court that decides by a specially reasoned decision.
Contrary to the support of parliamentarians in the appeals process, these provisions do not ignore the constitutional principles of juvenile justice.
It must be recalled, first of all, that, when it sets the rules relating to the criminal law of minors, the legislator must ensure that the constitutional requirements arising from the fundamental principle recognized by the laws of the Republic in respect of juvenile justice are reconciled with the need to seek the perpetrators of offences and to prevent violations of public order, including the security of persons and property, which are necessary for the safeguarding of constitutional rights (cf. The principle of mitigating the criminal responsibility of minors is thus not an absolute and uniform rule applicable in all cases, regardless of context or circumstances.
Under these conditions, and in the second place, the constitutional principles specific to juvenile justice cannot be deduced that they impede the legislator's prediction, in rigorously defined assumptions, for acts of particular gravity and in the case of a new legal recidivism, that the mitigation of the sentence does not apply unless the competent court decides otherwise. Exceptions to the application of the mitigation of the sentence may be justified by specific species provided by the legislator as long as, as in the particular case, the offences reach a particular degree of gravity - a crime of voluntary violation to the life or physical or psychological integrity of the person, offence of voluntary violence, offence of sexual assault, offence committed with the aggravating circumstance of violence - and that the minor over sixteen years of age is recidivism
It must be pointed out, in the third place, that the legislator has not challenged the rights of minors to the principle of mitigating the sentence. No legal exception to the principle is provided for minors over the age of sixteen who are not among the perpetrators of offences of particular gravity and recidivism. In this case, only a court decision may rule out a minority apology. The legislator has only limited itself to enforcing the conditions of application of the principle of mitigating the sentence by providing, for minors over sixteen years of age who commit acts of particular gravity and in a state of recidivism, that it only plays if the competent court decides. The appreciation of the latter is preserved as it may, in any event, decide to restore mitigation. The decision will be specifically motivated when it is taken by a children's court. If a decision is taken by a court of siege, it will result from the answer to the specific question regarding the applicability of liability mitigation, II of section 5 of the law referred to amend section 20 of the order of February 2, 1945.
In light of all of the above considerations, the grievances against section 5 of the Act referred to above must be dismissed.


III. - On articles 10 and 11


A. - Article 10 of the law referred, which amends the first paragraph of section 721-1 of the Code of Criminal Procedure, provides that, unless the judge decides otherwise of the application of the penalties, no further reduction of the penalty may be granted to a person convicted of a crime or offence for which the socio-judicial follow-up is pending, who refuses to follow the treatment proposed by the judge of the article 763 Section 11 I supplements section 729 of the same Code and provides that where the person has been convicted of a crime or offence for which the socio-judicial follow-up is pending, a conditional release may not be granted to the person if the person refuses to follow the treatment offered to him by the judge of the application of the penalties under sections 717-1 and 763-7. It also states that it cannot be granted to the convicted person who does not undertake to follow, after his release, the treatment that is proposed to him under section 731-1.
Grievor MPs argue that by deviating, in the assumptions that it is intended, the possibility for the judge of enforcement of sentences to grant a reduction of sentence or parole, the legislator would have misunderstood the principle of need for sentences.
B. - This argument cannot be accepted.
In the first place, it must be observed that, in the case of reduced sentences, contrary to what the authors of the appeals support, the refusal by a person convicted of a crime or offence for which the socio-judicial follow-up is in the process of following the treatment proposed by the judge of the application of the penalties does not lead to an automatic "non-octroi". The legislator has taken care to state that no reduction of punishment is granted, in such cases, unless the judge decides otherwise. It follows that the provisions of section 10 of the deferred law preserve the discretion of the judge of the application of sentences and that the authorisation denounced by the requesting parliamentarians is absent from the established mechanism, so that in any case there is no infringement of the principle of necessity of penalties. The judge of enforcement of sentences may, moreover, always grant additional penalties for the reasons set out in section 721-1 of the Code of Criminal Procedure.
With regard to the provisions of section 11 of the law referred to, the legislator has limited himself to providing that persons convicted of a crime or offence for which socio-judicial follow-up is incurred who refuse during their incarceration to follow the treatment proposed to them are deemed not to demonstrate, in doing so, serious social rehabilitation efforts within the meaning of the first paragraph of article 729 In such cases, the judge of the application of sentences, who proposed treatment to the person concerned, was denied, so that he would not logically grant the benefit of parole. On the one hand, he deduces that the role of the judge in the application of sentences is preserved and, on the other hand, that the legislator has limited himself to drawing the consequences of the refusal of the treatment proposed by the convicted person. On the other hand, it must be observed that the exclusion of the benefit of parole lasts only the time of the refusal of the sentenced person.
In this way, the legislator has only provided for a more restrictive regime for parole in relation to the reduction of sentence, taking into account the effects of the measure and nature of the offences committed, and in line with the objective it pursues, namely to strengthen the fight against recidivism. Article 11 of the above-mentioned law cannot, under these conditions, be regarded as contrary to the principle of necessity of punishment.
It follows that the provisions criticized in sections 10 and 11 of the above-mentioned Act do not ignore any constitutional requirement.


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For these reasons, the Government is of the opinion that none of the grievances articulated by the members of Parliament and Senators applicants is likely to lead to the censorship of the provisions of the law strengthening the fight against the recidivism of majors and minors. He therefore considered that the Constitutional Council should reject the appeals before it.


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