Key Benefits:
The Constitutional Council was appealed by more than sixty senators against the law on the treatment of recidivism of criminal offences, adopted on 24 November 2005. The appeal is, in particular, directed against the provisions of the law relating to the issuance of a warrant for filing at the hearing and against those relating to judicial supervision through mobile electronic surveillance.
The appeal by the Government calls for the following comments.
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I. - the issuance of the terms of reference
at the hearing
A. - Section 7 of the law referred to in the Code of Criminal Procedure provides for an article 465-1, the second paragraph of which provides that the court issue a warrant of filing at the hearing, regardless of the quantum of the sentence imposed, if it condemns a person in a state of legal recidivism for acts of sexual assault or abuse, offences with voluntary violence against persons or offences committed with the circumstance shall not be deemed to be lesser
The requesting senators argue that these provisions would overturn a fundamental principle of criminal law by making it mandatory, with the exception of the terms of reference for filing at the hearing and that they would be contrary to the requirements of Article 9 of the Declaration of Human and Citizen Rights and Article 66 of the Constitution. They further argue that these provisions would undermine the independence of the judicial authority, since they would oblige the judiciary to impose a custodial measure.
B. - Such criticisms can only be removed.
1. The criticized provisions of Article 7 are intended to provide for the conditions under which the court of judgment is required to rule on the issue of a warrant of filing at the hearing in respect of a defendant who is sentenced while in a state of legal recidivism for offences of particular gravity. They do not have the effect of depriving the jurisdiction of its discretion and merely imposing a decision on it if it does not issue a warrant for filing.
It must be observed that these provisions have been instituted by the legislator only for the particular case of convicted persons while they are in a state of recidivism for serious offences, i.e. for hypotheses where one can legitimately fear that the perpetrator of the facts, whose danger has already been attested by at least two convictions, does not commit new offences if the penalty of imprisonment was not immediately enforced.
These new provisions can only be implemented if three conditions are met. The first presupposes that the defendant must have already been convicted for an offence under articles 132-16-1 or 132-16-4 of the Criminal Code. Sections 2-7 of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Criminal Code of the Republic of Lithuania,
It is also necessary, in the second place, that the accused has been convicted of a new offence committed in a state of legal recidivism, which implies at the same time that he has been convicted by the correctional court of having committed the acts against him, that these acts have been committed within a period of five years after the expiration or limitation of the first sentence in accordance with the provisions of section 132-10 of the Criminal Code and that they are similar offences. The maximum penalties then incurred are doubled as a result of recidivism and are, as the case may be, between four and twenty years' imprisonment.
Third, it is obviously necessary for the court to pronounce a prison sentence. The second paragraph of the new article 465-1 follows the first paragraph that permits the issuance of a warrant for filing against a recidivist "every term of imprisonment pronounced", by derogation from the general provisions of section 465 that require a sentence of at least one year's imprisonment. The issue of the warrant of filing at the hearing necessarily implies that a firm sentence of imprisonment is actually imposed. It cannot be decided if the court pronounces a fine, an alternative sentence (e.g., a fine-day sentence, a general interest or a socio-judicial follow-up), or a sentence of imprisonment with a simple or conditional stay with probation (if the conditions for granting the stay are met).
2. By doing so, the legislator did not infringe either article 66 of the Constitution or article 9 of the Declaration of Human and Citizen Rights.
(a) There is no principle of constitutional value, nor is article 66 of the Constitution that "no one can be arbitrarily detained", which imposes on the legislator that the issue of a warrant for filing by a court of judgment could only result from an express decision of the specially motivated jurisdiction. Under Article 34 of the Constitution, the legislator may, within the framework of his or her discretion, determine other modalities without disregarding the Constitution. In the present case, the legislator considered it useful to proceed with the development of section 7 of the law referred to in order to better ensure the protection of public order against recidivist offenders whose danger is proven. The appreciation to which the legislator gave himself may not be seen as a manifest error.
In particular, it must be observed that the recidivism of serious offences such as those covered by the contested article constitutes, in itself, a ground for the issuance of a warrant for filing at the hearing. The legislator drew the consequences by providing that, unless the court decides otherwise, a new recidivism sentence, for the serious offences enumerated by section 7, warranted immediate incarceration, when a firm sentence of imprisonment is imposed. By analogy, it may be noted that the jurisprudence of the Court of Cassation admits that the mere finding of recidivism can constitute the special motivation required by section 132-19 of the Criminal Code to impose a suspended sentence of imprisonment (see in particular Cass. c. 3 April 1995, JCP 1995.IV.1690; Cass. 19 April 1995, Criminal Dr. 1995.194; Cass. 19 January 1999, bubble. No. 7), which led the legislator, by section 17 of the law referred to, to remove this special incentive requirement in the event of recidivism.
It may also be noted that, in other cases, the law has already imposed on the judge the obligation to justify certain decisions favourable to the person prosecuted and presumed innocent. Thus, the correctional court that refuses to revoke a simple stay must justify this decision in accordance with the provisions of the second paragraph of section 132-38 of the Criminal Code. Similarly, the examining magistrate who refuses to file a case with the judge of freedoms or detention for detention that has been required by the prosecutor of the Republic must make a decision in accordance with the provisions of article 137-4 of the Code of Criminal Procedure. It should be noted that the Constitutional Council has found that the latter provisions, which are the result of Act No. 2002-1138 of 9 September 2002 on guidance and programming for justice, are not subject to any constitutional requirement (Decision No. 2002-461 DC of 29 August 2002).
(b) Nor can the provisions of Article 7 of the referred law be deemed to be contrary to Article 9 of the Declaration of Human and Citizen Rights guaranteeing the presumption of innocence.
The presumption of innocence cannot, in fact, prohibit a court that imposes a penalty on a person that it has just found guilty of providing for the immediate and provisional execution of that sanction, even though its decision is not final and may be the subject of a remedy. Article 9 of the Declaration of Human and Citizen Rights does not prohibit the exercise of any rigour in respect of a person until it has been permanently convicted; it does not in principle prohibit any form of pre-trial detention. In deciding that a warrant of filing will be issued to the hearing unless otherwise decided, the legislator did not exercise, in the case of convicts in a state of legal recidivism for serious offences, a rigor that would be excessive under Article 9 of the Declaration of Human and Citizen Rights.
It must be noted that the person against whom a warrant of deposit will be issued to the hearing pursuant to section 465-1 of the Code of Criminal Procedure will be considered to be placed in pre-trial detention until his conviction has been final. The accused may appeal against his conviction and request his release to the Court of Appeal immediately and thereafter as many times as he or she wishes, in accordance with the general provisions of the second paragraph of Article 148-1 of the Code of Criminal Procedure. And if the provisions of Article 465-1 are applied by the Court of Appeal, these applications for release may be made before the Court in the event of a cassation appeal, until it is decided on the appeal, in accordance with the provisions of the third paragraph of Article 148-1. Finally, if the person has finally been released on appeal, automatic and complete compensation for the damage resulting from the detention may be ordered in accordance with the provisions of articles 149 et seq. of the Code of Criminal Procedure.
It should also be observed that the Court of Appeal will have to rule on a request for release within two months if the warrant of filing was issued in the first instance and within four months if it was issued on appeal, in accordance with the provisions of the second paragraph of Article 148-2 of the Code of Criminal Procedure, for failing which the accused must be released immediately. Article 148-2 provides for a period of time to rule on the application for longer release in the case of the conviction on appeal than in the case of the conviction in the first instance, demonstrating that the effects of the presumption of innocence are gradually dampened by successive convictions.
Under these conditions, by providing for by the provisions criticized that a warrant of deposit will be issued at the hearing unless the court decides otherwise by a reasoned decision, in respect of recidivists who have committed particularly serious acts, the legislator has not overly violated the presumption of innocence guaranteed by article 9 of the Declaration of Human and Citizen Rights. In this regard, it may be noted that section 367 of the Code of Criminal Procedure provides, in criminal matters, that the court of siege that imposes a custodial sentence against a free accused shall issue a warrant for filing, without reserve the possibility for the court not to issue the warrant.
3. The criticism derived from the independence of the judicial authority guaranteed by Article 64 of the Constitution shall, for its part and in any case, be excluded as in fact.
Indeed, contrary to what is supported, the provisions criticized in the second paragraph of new article 465-1 of the Code of Criminal Procedure do not deprive the jurisdiction of its discretion and do not have the purpose or effect of compeling it to issue a warrant of filing at the hearing with respect to persons whose guilt it holds in the event of legal recidivism.
The law leaves such a decision to the sovereign assessment of the jurisdiction, which may, for example, consider that the low length of the sentence of imprisonment imposed, or the time elapsed since the previous conviction, or taking into account the particular circumstances of the case or the personality of the accused, do not justify the issuance of a warrant of filing at the hearing, although the accused is in a state of recidivism for serious facts. It may be thought, in particular, that the warrant will not be issued, as a result of a specially motivated decision, when the court having pronounced a prison sentence of less than one year, has decided to order its development ab initio by the semi-liberty, by the outside placement or by the placement under electronic supervision, or it will wish that such accommodation may be ordered by the judge of the application of the sentences, to which the convicted person
II. - on the application in time
Judicial Monitoring
A. - Section 13 of the Act referred to, inserting several provisions into the Code of Criminal Procedure, defines the regime of judicial supervision that may be decided against dangerous persons convicted of a crime or offence. This is a new enforcement measure that can take the form of a mobile electronic surveillance placement. The provisions of the last paragraph of section 41 of the Act and those of section 42 determine, for their part, the terms and conditions of application in the time of these new provisions relating to judicial supervision.
The authors of the appeal argue that by deciding that the new provisions would immediately apply to persons who were convicted before the law came into force, the legislator would have misunderstood the terms of Article 8 of the Declaration of Human and Citizen Rights which prohibit the retroactivity of the law in criminal matters. They argue, in this regard, that the electronic surveillance measure must be considered as a penalty or, at the very least, as a security measure to which the requirements under section 8 of the Declaration apply. They also note that the retroactive application of the new provisions would lead to disregarding the requirements of articles 763-10 and 763-14 of the Code of Criminal Procedure.
B. - The Government considers that these different criticisms are unfounded.
1. The judicial supervision, organized by articles 723-29 to 723-37 of the Code of Criminal Procedure, is a new modality of enforcement of a sentence already imposed, allowing the judge of the application of the penalties to impose on a convicted person, on his release, certain obligations intended to prevent recidivism for a period equal to that of the reductions of punishment he has received.
It is likely to be implemented only in respect of persons sentenced to a sentence of at least ten years' imprisonment for a crime or offence for which the socio-judicial follow-up is incurred, i.e. rape crimes, crimes of assault and sexual assault, crimes of voluntary homicides, crimes of torture and crimes of torture and acts of sexual assault.
In the context of judicial supervision, the judge of enforcement of penalties may impose some of the obligations under conditional release, defined by reference to those of the probationary stay as long as they present an aspect of a security measure - such as the prohibition of going to certain places, the prohibition of carrying a weapon, the prohibition of meeting his victim or his accomplices - some of the obligations of socio-judicial monitoring - such as In this regard, it should be noted that this electronic surveillance, which will allow the convicted person to be located, will in some cases deter him from going back to the act, and in the other cases, if this preventive effect has not played, will allow him to confuse it and to stop it more quickly, so that he cannot repeat it again.
If the convicted person fails to comply with his or her obligations under judicial supervision, he or she will be exposed to the withdrawal of the penalties, according to the legalized procedure applicable to the enforcement judge since Act No. 2004-204 of 9 March 2004.
The legislator considered it necessary to institute this new enforcement measure to prevent convicts with high risk of recidivism from being subjected to a "dry release" that practitioners generally consider as the first cause of recidivism. However, such releases are currently taking place when the convicted person has not been subjected to a socio-judicial follow-up or where he or she is not granted parole. In this spirit, it must be observed that the legislator has specified, by section 723-36 of the Code of Criminal Procedure, that judicial supervision may not be ordered if a socio-judicial follow-up has been made, or if the person is subject to a conditional release, judicial supervision is not useful in such cases.
2. Article 8 of the Declaration of Human Rights, under which "the law shall establish only strictly and obviously necessary penalties and no one shall be punished only under a law established and promulgated prior to the offence and legally enforced", prohibits the retroactivity of the provisions establishing more severe sanctions.
In criminal matters, these provisions apply to penalties imposed by criminal courts. In this regard, it was found that the periods or measures of security imposed by the court of judgment are also subject to article 8 of the Declaration of Human and Citizen Rights (Decision No. 86-215 DC of 3 September 1986; Decision No. 93-334 DC of 20 January 1994).
On the other hand, it was not considered that the constitutional requirements of Article 8 of the Declaration of Human and Citizen Rights would apply to the enforcement of the sentence, decided not by the court of judgment at the time of the conviction but by the judge of enforcement of the sentences, after the pronouncement of the sentence and within the limit of the sentence imposed.
The Government considers that such measures, whose purpose is not to impose a new sanction, do not fall within the scope of constitutional requirements and are, therefore, likely to be applied immediately to persons who have been convicted previously, at least as the legislator so decides. In this respect, it is true that the 3rd of Article 112-2 of the Criminal Code adopted by the Parliament in 1992 and entered into force in 1994 provides, in principle, that the laws relating to the enforcement and enforcement of sentences are not applicable to convictions for acts committed prior to their entry into force if they are to make the sentences imposed by the decision of conviction more severe. But these legislative provisions do not reflect the constitutional requirements resulting from Article 8 of the Declaration of Human and Citizen's Rights: they establish a legislative rule that goes beyond the constitutional requirements and to which the legislator can always decide to waive for reasons of general interest that it has to assess. The parliamentary work on the new Penal Code attests that the legislator, who finally adopted a Senate amendment to this point, with the aim of completing the Government's bill that did not contain such a provision, had not heard a constitutional requirement and considered that it would always be lawful to make exceptions to the legislative rule that it enacted. This possibility of derogation was also recalled by the circular of application of the new Criminal Code of 14 May 1993 and is exhibited by the doctrine (see notably R. Merle and A. Vitu, Treaty of Criminal Law, Cujas, T. 1, 7th ed., 1997; J. Pradel, General Criminal Law, Cujas, 15th ed., 2004; F. Desportes and F. Le Gunéhec, General Criminal Law, Economica, 12th ed., 2005).
In these circumstances, it appears, taking into account the purpose of the measure, which is not to punish the person but to prevent his or her recidivism, and of his or her nature, that consists of a modality of execution of a sentence decided by the judge of the application of the sentences and not by the court of judgment at the time of the conviction, and whose duration can in no case exceed that established by the court of judgment, that the immediate application of the constitutional supervision The legislator considered that it was essential to allow the application of judicial supervision to persons convicted of particularly serious acts committed before the date of entry into force of the new law, and which, in view of the reductions in the penalty they received, will be released after that date, while the risk of recidivism is high.
In this regard, it should be emphasized that placement under mobile electronic surveillance, which constitutes one of the measures that may be ordered in the context of judicial supervision, cannot, in itself, be qualified as a penalty. Without a doubt, in some cases such an obligation may be imposed for repressive purposes and as a penalty by a court of judgment. But in the context of judicial supervision, this obligation does not constitute a punitive nature; it is part of the execution of the previously pronounced sentence without exceeding the limits of that sentence.
In fact, it can be observed, with regard to the conditional release that constitutes the traditional mode of punishment most effective in combating recidivism, that section 731-1 of the Code of Criminal Procedure resulting from section 22 of the Act referred to above specified that placement under mobile electronic surveillance may be decided in the context of parole. The 2nd of section 41 of the referred law provides for the immediate application of this new possibility to conditional release on enforcement convictions, which appears to be both useful in relation to the constitutional objective of safeguarding public order and the imperative of protection of the security of persons, and constitutionally possible since it is also a modality of execution of a sentence already pronounced.
For this reason, the Government considers that the legislator could decide, without disregarding the Constitution, that the new provisions relating to judicial supervision, including mobile electronic surveillance, which could be ordered under this framework, would be immediately applicable to persons convicted prior to the coming into force of the law.
3. Finally, it will be observed that the latest criticisms made by the referral, referring to the combined provisions of articles 731-1 and 763-10 to 763-14 of the Code of Criminal Procedure are unfounded.
Referral of Article 731-1 to Articles 763-10 and 763-12 effectively implies that a placement under mobile electronic surveillance may only be ordered as part of a conditional release provided that the danger of the person has been found, at least one year before the date for release, by a review requiring, inter alia, the notice of the multidisciplinary commission of security measures. It also implies that the establishment of the convict ' s system should take place one week before his release.
But no difficulty arises from the application to parole of these rules, which are intended to ensure, on the one hand, that the use of placement is truly essential to prevent recidivism and, on the other hand, if so, that the person may not be able for a longer or less lengthy period after his release not be subject to electronic surveillance. Thus, the placement is ordered on parole in respect of persons convicted of acts committed after the entry into force of the new law or is ordered on conditional release, as permitted by the 2nd of section 42 of the law referred to, persons convicted for acts committed before that date.
Referral to articles 763-10 and 763-12 implies logically, which corresponds to the intent of the legislator, that the use of mobile electronic surveillance in the context of a conditional release can only be decided at the time of release. On the other hand, he will obviously not be ordered in respect of a convicted person who has already been granted parole and who respects the conditions imposed upon him at the time of his release. It is only in the event of a revocation of parole for violation by the convicted person of his or her obligations and reincarceration that the placement could, if any, be ordered if he or she were subsequently decided to re-issue the conditional release.
The provisions of 2° of section 42 therefore have the sole purpose and only effect of allowing the placement under mobile electronic surveillance to be ordered in respect of persons who will receive parole after the coming into force of the law, while they have been convicted for acts committed before that date; On the other hand, they do not lead to that it may apply to persons who have already been released.
The Government also indicated in the course of the debate that, as a result of the need to take a number of implementing decrees, including the decree provided for in Article 763-14 of the Code of Criminal Procedure taken notice of the National Commission of Computer Science and Freedoms and of the Council of State, and then to make calls for tenders and experiments, the effective entry into force of the provisions relating to the placement under mobile electronic surveillance, of which the date fixed will be
As a result, there will be no difficulty in conducting the danger examination required by section 763-10 at least one year before the possible date of a conditional release that, if it is to be matched for the convicted person to be placed under mobile electronic surveillance, will only be able to intervene at the earliest of the end of 2007.
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For these reasons, the Government considers that criticisms by the authors of the referral are not likely to justify the censorship of the contested provisions of the law referred to. That is why it considers that the Constitutional Council should reject the appeal before it.
