Key Benefits:
ORIENTATION
AND PROGRAMMING FOR JUSTICE
Mr.President, Ladies and Gentlemen, members of the Constitutional Council, we have the honour to refer to you, in accordance with the second paragraph of Article 61 of the Constitution, the Law on Guidance and Programming of Justice as adopted by Parliament. Several provisions of this text appear to be contrary to the Constitution.
In support of this referral, we develop the following means and grievances against, in particular, Article 3, Parts II, III and IV of the Act.
*
*
I. - On Article 3 of the Law
The purpose of this provision is to amend section 2 of the Act of 22 June 1987 by establishing a derogatory procedure in sections 7 and 18 of the Act of 12 July 1985, and by permitting the administrative contractor to be entrusted with the design, construction, development of penitentiary establishments and functions other than those of management, transplantation and supervision.
The authors of the referral share every desire to implement all the necessary means to address the cruel question of prison overcrowding and the demands of a prison condition that respects human dignity.
However, they are careful that the chosen paths do not defraud the rules that impose on legislators, under cover of the best intentions displayed.
First of all, this article, which is the one adopted in the framework of the Law on Guidance and Programming of Internal Security, is subject to criticism that it ignores the principle of equality that implies free competition in matters of public order (Decisions No. 2001-452 DC of 6 December 2001 and No. 2001-450 of 11 July 2001) and Article 14 of the Declaration of 1789.
On the one hand, by derogating from the separation of the functions of master of work and contractor, the criticized article refers to a device designed to ensure greater transparency, thus greater competition, in access to public order and better use of public money. Worse, by allowing an alloti market to be evaluated in a comprehensive manner, it violates the principle of equality of candidates for public order (see on this point: "Instruction on the new public procurement code of 28 August 2001", OJ of 8 September 2001).
On the other hand, by reviving, without saying, public works enterprise markets (METP), the criticized provision will limit the access of small and medium-sized enterprises to the markets of which it is concerned. It is for the record that it will be recalled that these deemed METPs for their opacity have been subjected to serious criticism by the Council of State (public report 1993, page 73).
However, nothing in the definition of the missions involved justifies the need to exclude SMEs from the design or development, for example, of new prisons. It is even questionable why certain functions that may be performed by private persons in penitentiary institutions should be reserved for those who have built them. What is the logic to which the economy of the criticized article leads, small businesses seeing access to these very limited markets.
The principle of equality and its corollary of free competition are reached.
Especially since in the second place the negative incompetence of the legislator is obvious.
Modifying the regime of these special markets that affect the functions of the country and the individual freedom of the detained persons, the legislator had to provide all necessary guarantees.
But that's the opposite he did.
In article 2 of the amended 1987 law, it was provided that the execution of these missions was made according to "a notebook of the charges approved by decree in the Council of State". This guarantee is gone. Only the reference to the public procurement code remains and again for the addition of an exception in the area of abatement.
In view of the particularities of the missions that may be carried out to the companies concerned, it was essential that the legislator exhaust its competence.
II. - Title II of the law
The law subject to your review is, in particular, the creation of a local jurisdiction under conditions of course contrary to several rules of constitutional values. In particular, the provisions of which are ignored articles 34, 64 and 66 of the Constitution, the principle of equality before justice and together articles 4 and 16 of the Declaration of Human and Citizen Rights of 26 August 1789.
II-1. Sections 7 et seq. of the criticized law create a new court order called "the jurisdiction of proximity" supplementing Book III of the Code of the Judicial Organization (Legislative Party) and confers jurisdiction in both civil and criminal matters. This unique judge unknown at this time, of whom we only know that he will be a non-professional individual, comes directly to compete with the professional judges of the proceedings. This competition, which regrets that substantial means have not been decided on the benefits of local magistrates whose professional and human qualities are deemed and appreciated daily by the vigilantes, reveals, first and foremost, the incompetence of the ordinary legislator with regard to the combined requirements of articles 34 and 64 of the Constitution.
The legal blur surrounding the human reality of these local jurisdictions, and thus the way in which the judicial function will be assumed by them, precludes censorship.
Certainly, the creation of a new order of jurisdiction is well within the jurisdiction of the ordinary legislator under Article 34 of the Constitution (Decision No. 61-14 L of 18 July 1961, Rec. 38). It is no less certain that the legislator must exhaust its jurisdiction when carrying out such a business.
This is what must be deduced from your decision of December 21, 1964, according to which, in the case of the appointment of assessors of the children's courts, among the rules concerning the creation of new orders of jurisdiction "are to include those relating to the method of designation of the persons called to sit as the assailants ... and those who determine the duration of their duties" (Decision No. 64-31 L of December 21, 1964).
In other words, the creation of a court order requires that the nature and principal professional characteristics of the magistrates appointed to serve in his or her place be sufficiently specified, or already known, for the legislator to be regarded as having exhausted his or her competence under Article 34 of the Constitution. As long as the new court order employs magistrates whose status is already organized in accordance with the Constitution, there is no difficulty in principle and Parliament can exercise the fullness of its powers.
This is the most common case and, to say, the most logical.
On the other hand, if this jurisdiction cannot be fulfilled on the basis that the statute of judges under the jurisdiction of the organic law under Article 64 of the Constitution does not yet exist, it follows that the ordinary legislator is not in a position to create this new order of jurisdiction by ensuring that its organization and competence meet the constitutional requirements of impartiality, independence and equality before the courts.
In particular, and we will return to it, the devolution of jurisdiction in criminal matters, would be limited to certain contraventions, to a non-professional vacatary judge, without the constitutionally inconceivable guarantees of the exercise of the functions of judging be known by the legislature at the time it decides.
In fact, it is necessary to admit that the creation of this new court order, with competence in civil and criminal matters, could not be decided by the ordinary law before the organic law came to clarify the status of non-professional magistrates called to sit there.
In doing so, the violation of articles 34 and 64 of the Constitution is certain and invalidation cannot fail to be pronounced.
II-2. Secondly, and in any case, the establishment of this jurisdiction violates articles 64 and 66 of the Constitution and the right to the judge as guaranteed by article 16 of the 1789 Declaration.
The right of everyone to see his case, in civil or criminal matters, heard by an independent judge, impartial with the benefit of all the guarantees of a fair trial, reached, at this moment, the principle of equality before justice. This implies that law enforcement officials have the right to judge their case in civil or criminal matters by one or more professional judges who have embraced the judicial career.
However, these local judges, of whom, once again, Parliament ignores the final characteristics, will replace professional judges who have embraced the judicial career, while they will have, from the point of view of law, the same office as them.
Such a hypothesis is simply unconstitutional.
On the one hand, he ignores the constitutionally guaranteed role of the judicial authority.
Certainly, your jurisprudence recognizes the power of legislators to provide for an exceptional and transitional recruitment of magistrates motivated by the shortage of staff (decision No. 98-396 DC of 19 February 1998). Your jurisprudence, however, limits and regulates the part that this type of recruitment can take within the judicial authority. Thus, in your decision of 21 February 1992, have you clarified "that the functions of the judiciary must in principle be exercised by persons who intend to devote their professional life to the judicial career; that the Constitution, however, does not hinder that, for a limited part, the functions normally reserved for career judges may be exercised temporarily by persons who do not intend to confer on the judicial career, provided that they are entitled to the judicial profession,
The necessarily exceptional nature of the exercise of judicial functions by persons who have not devoted their professional life to the judicial career is a constant reasoning in this matter (decision of February 19, 1998 above).
The local judges in question do not respond, and cannot answer, to the constitutional framework so set. For the guarantees of independence, it will be necessary to wait for more distant times. For the exceptional nature of the use of non-professional judges, it should be grieved.
For, here, it is not a matter of conducting a temporary recruitment of magistrates to complement the staff of professional judges and placing themselves in the judicial order with them for a limited period of time. On the contrary, there is a question of definitively replacing judges who have not embraced the judicial career with professional judges and exercising the skills normally vested in them. It is in vain that it would be argued that these magistrates of proximity will only be on a temporary basis, as long as, in order to rule on certain disputes, this substitution of professional judges who are part of the judicial authority and normally competent to know them by non-professional judges will be final.
This defiance of judicial officials cannot be confused with the development of alternative dispute resolution methods, which specifically restrict the intervention of the judicial authority. It is also distinct from the entanglement processes that always involve professional judges to elected judges. It is still foreign to the idea of involving citizens at the office of the professional judge.
It is therefore not an exceptional temporary recruitment, but the replacement of professional judges belonging to the judicial authority by non-professional judges. This substitution of non-professionals to professionals to perform judicial functions, not even the statutory guarantees that could take place one day, is contrary to article 64 of the Constitution.
It is also in accordance with Article 66 of the Constitution and Article 16 of the Declaration, on the other hand, as long as these non-professional judges are competent in criminal matters for certain offences, including for major offences, in respect of 5th class offences.
The judicial authority is custodian of individual freedom and fortunately exercises the exclusive competence to judge in strictly criminal matters.
For all contraventions, in addition to the fines set out in section 131-13 of the Criminal Code, section 131-16 of the same Code states that the regulation punishing this type of offence may provide, where the perpetrator is a natural person, one or more additional penalties, such as the suspension of the driver's licence for not more than three years.
On the other hand, and in order to stay on the only 5th class contraventions, the criticized law would allow a non-professional judge to impose, under section 134-14 of the Criminal Code, a custodial or restrictive sentence of rights.
In addition, it would have the power, on delegation given by the President of the Court of Grand Instance, to validate measures of criminal composition (article 9 of the law creating a new article 706-72 in the Code of Criminal Procedure). To date, the validation of such a measure was within the jurisdiction of the court of law for the field of contraventions. By giving a non-professional judge such power, the law also violates Article 66 of the Constitution (Decision No. 95-360 DC of 2 February 1995).
This is all the more unacceptable because this non-professional magistrate will have criminal jurisdiction over minors. We will come back later, but this reminder highlights the unconstitutionality here shown.
That is to say that the office of this non-professional judge will very directly concern the individual freedom in his most precious acceptance. It is simply not possible under these conditions or in the future conditions of the completion of the statute of these magistrates of circumstances.
Finally, it will be added that the negative incompetence of the legislator is obvious as long as, according to article 9 of the law (creating a new article 706-72 in the Code of Criminal Procedure), the determination of the jurisdiction rationae materiae of the local judge is referred to a decree in the Council of State.
The list of contraventions that will fall within its office is therefore not set out in the law.
However, article 34 of the Constitution, by entrusting the ordinary legislator with the competence to determine the rules for the establishment of jurisdictions, has necessarily understood the rules of material jurisdiction (decision 65-33 L of 9 February 1965; cf. comment to GDCC, pages 138 and 139).
Therefore, except for the principle of the jurisdiction of the police tribunal as defined by Article 521 of the Code of Criminal Procedure, it was appropriate to determine with precision and fullness the jurisdiction of the new "lower judge". For comparison, it will be noted that the list of offences that fall within the jurisdiction of the single judge in correctional matters by exception to the collegiality of the correctional court is fully defined by section 398-1 of the Code of Criminal Procedure. The enumeration is then laborious, but it represents the guarantee that the legislator has exhausted its own competence in an area affecting, moreover, public freedoms.
By referring to the regulatory authority the determination of the exact jurisdiction of this new jurisdiction, the legislator has ignored its own jurisdiction.
For this other reason, invalidation is certain.
II-3. Third, the lack of awareness of the principle of equality before justice is obvious.
This constitutional requirement is particularly strong and your jurisprudence has had several occasions to recall it (Decision No. 98-396 DC of 19 February 1998; Decision No. 75-56 DC of 23 July 1975).
In this case, as has already been said, the court of close scrutiny will appeal to non-professional judges in civil matters to deal with disputes of less than EUR 1,500 and, in criminal matters, to rule on certain contraventions. Beyond that, the trial judge, or the police court, will regain jurisdiction, or even before, in the case of dismissal for uncertain powers.
A dispute of less than EUR 1,500 for the plaintiff, plaintiff as defendant, is of significant importance and may be likely to raise a question of difficult law. Thus, to be held in the table presented in MM's report. Senators Schosteck and Fauchon (Senate, report No. 370, page 76), this proximity judge will have jurisdiction, for example, to decide questions of civil liability, which is not the most obvious field of law.
The result is that, in addition to the amount of the cases submitted to the judge of proximity, lawsuits will be tried by non-professional judges in the same way as those subject to the jurisdiction of the judges of proceedings.
What will be even more serious about criminal matters.
It can only result in a breach of equality before justice.
The evidence is that the article 7 referred to provides in a new article L. 331-4 of the code of the judicial organization that the judge of proximity may refer to the trial judge a case having a serious legal difficulty regarding the application of the rule of law or the interpretation of the contract binding the parties.
First, it is to be argued that the proximity justice, beyond the criterion of the amount of disputes (1,500 EUR), will have to consider matters of law that do not fall within common sense, and that its scope of jurisdiction is arbitrarily defined without regard to the quality requirements of court decisions and thus to the justiciables.
Second, it is important to recall that in civil matters, the removal procedure is strictly governed by articles 356 to 366 of the new Civil Procedure Code and meets objective criteria surrounded by all guarantees of good administration of justice for the parties to the proceedings. As for the pre-judicial and pre-trial issues, they are also procedural incidents that are particularly limited by our national and European positive law.
In this case, nothing like that. The intended dismissal only responds to the arbitrary appreciation, and sums all random, of this non-professional judge, inauguating, in a way, the "eclipse judge". The parties to the trial will thus gain the ability to play the judicial lottery with such a vacatary judge aware of the limits of his competence, while in front of another they will suffer the law of brass of the certainties of the one who does not demortize it!
In such a way that, for the same disputes or offences, individuals in similar situations and parties to a proceeding or prosecuted for the same cause will be tried by courts composed under different rules (Decision No. 75-56 DC of 23 July 1975). The fact that the trial judge intervenes according to an editorial authority of the law as "situary judge" does not purge the vice of unconstitutionality as long as in one case the vigilante has been tried by a non-professional judge and in the other by a professional judge.
It will be added that the circumstance that these judges of close proximity alone intervene, according to the statement of the reasons for the bill, in connection with vacations, raises the greatest doubts about the continuity of the public service of justice.
Therefore, it is difficult to consider that the proper intrusion of such aleas in the judicial treatment of disputes can be accommodated with the principle of equality before the law, the corollary of equality before the law, as well as with the right to appeal that presupposes access to a judge enjoying the fullness of his jurisdictional competences and ensuring continuity of this regalian public service.
Under these conditions, it is necessary to consider that the institution of the local jurisdiction does not offer any of the guarantees required by the principle of equality before the courts.
For this grievance, too, censorship is under way.
III. - Title III of the law
Title III of the law submitted to your examination aims to deal with the difficult issue of juvenile delinquency by hardening the regime under which minors are subject to criminal law as established by the order of 2 February 1945.
The authors of the referral are also very careful to respond usefully to the problems posed by juvenile delinquency with all the conviction that it is appropriate and in the spirit of what they had already undertaken. However, they affirm their willingness to address them in accordance with the specificity of juvenile justice and the constitutional guarantees attached to them.
However, the criticized system seriously challenged the balance that found its source in the order of 2 February 1945, which was preceded in this idea of the primacy of the repressive education by the law of 22 July 1912 and even of 12 April 1906, and whose essential principles had a unanimous constitutional value under the fundamental principles recognized by the laws of the Republic.
This is a very useful reminder of Mr.Alain Juppé's former scoundrel guard: "The debates before the Council of State whose opinion - I state here publicly, as I had done during my hearing before your commission of the laws - have been fully followed by the Government, have shown that the essential principles of the 1945 order seemed to present a constitutional nature and that it was not possible to erode it. The order, whose principles actually date from the Act of 22 July 1912 on the courts for children and adolescents and on freedom under supervision, can be considered as one of the laws of the Republic to which the Preamble to the 1946 Constitution refers" (AN, 27 March 1996, 2nd meeting, Jacques Toubon, Minister of Justice, OJ, Debates AN, p. 2054). The former scissor guard thus expressed, within the framework of what would become the law of 1 July 1996, to oppose an amendment of the National Assembly's Laws Commission which tended to extend to minors a suitable procedure for immediate appearance; Recalling therefore that this type of coercive measure is totally antagonistic with the educational character of our juvenile law.
This fundamental balance is particularly expressed in section 2 of the order which clearly distinguishes, on the one hand, measures relating to the protection of children and education and, on the other, criminal sanctions that can be exceptionally pronounced in a particular procedure.
The constitutional value of the principles of the law of minors is reinforced by international treaty law, and in particular by article 40 of the International Convention on the Rights of the Child, ratified by our country, according to which it is specified that "States shall endeavour to promote the adoption of laws, procedures, the establishment of authorities and institutions specially designed for children suspected, accused or convicted of criminal offences". A provision that echoes the fundamental principles of the UN General Assembly on 29 November 1945 in the so-called Beijing rules.
It also means that, under the specificity of juvenile justice and criminal law, the norms of constitutional values are even more rigorously appreciated when the minor's freedom and thus his future are at stake. This is what your jurisprudence has indicated, at least twice, in the decisions of 20 January 1994 and 11 August 1993.
However, this balance is based on the idea that the minor is not a miniature adult, but a being is severely broken by this title of the criticized law and will be shown below.
III-1. Sections 11 and 12 of the Act.
Article 11 amending Article 122-8 of the Criminal Code affirms the principle of criminal responsibility of minors without distinction as to age and creates a new category of repressive measures for minors: educational sanctions.
In doing so, the idea of the primacy of the repressive education is broken down and the economy of the rest of title III of the law leads to a clear criminalization of minors, including 10-year-olds.
In this regard, the name of "educational sanction" cannot mask the reality of the meaning of this device, namely the rupture of the balance established by article 2 of the 1945 order of which one saw the constitutional value.
The censorship of this article is all the more important because the following mechanism is covered by many other unconstitutional features illustrating this rupture of the fundamental balance of the criminal law of minors.
As for section 12 of the law, it is the first translation of this balance break. By amending the wording of the paragraph in article 2 of the order of 2 February 1945, this provision introduces, on the one hand, the notion of repression for minors aged 10 by inventing the notion of "educational sanction" and, on the other hand, makes the repression of minors between 13 and 18 years the principle, subject to the "attenuation of their criminal responsibility".
In other words, at this moment of the text, we are faced with a provision that would be of pure drafting, but which in reality leads us to the point of rupture with the fundamental principles of the criminal law of minors as recognized by the laws of the Republic under the preamble to the 1946 Constitution.
This rupture is in itself unconstitutional and the recognition of the principle of the repression of minors to the detriment of educational and protection will, as well as the notion of educational punishment can only be censored. Especially since the rest of the mechanism as defined in sections 12 et seq. of the law shows that this break-up results in serious consequences that must be contained now.
III-2. On section 13 of the law.
This article creates a new article 15-1 in the order of 2 February 1945, the purpose of which is to define what educational sanctions are.
Without going into the detail of these measures, it is particularly serious with regard to minors aged 10 and who violates the principle of necessity and proportionality of sentences as guaranteed by Article 8 of the 1789 Declaration. The educational sanction that can fuel subtle arguments will be emphasized in order to avoid the ominous discussions that your jurisprudence extends the applicability of Article 8 to any sanction that has the character of a punishment, even pronounced by an administrative authority (Decision No. 87-237 DC of 30 December 1987).
This is the case in this case.
The third of this new section 15-1 of the order provides, in fact, "the prohibition, for a period not exceeding one year, to meet or receive the victims of the offence designated by the court or to enter into relations with them".
However, for a minor, especially ten years old, justiciable from this new regime, which can very well have committed an offence in the enclosure of his school or in the framework of his football club or failure, or even at the occasion of a catechism course, the prohibition of meeting the victim may result in depriving him of schooling or excluding him from a whole range of his social activity, the same one that can help the victim
For a young person of this age, such a prohibition does not appear necessary and is, in any case, disproportionate.
The balance of 1945 goes a little further.
III-3. On section 16 of the law.
The doubt is no longer allowed. The quarrelled law turns its back to 1945.
By amending the first paragraph of section 4 of the order to extend the conditions of detention of minors between the ages of ten and thirteen, the legislator, drawing the consequences of sections 10 and 11 of this Act, penalizes the youngest.
However, it should be recalled with the utmost firmness that you have found, pursuant to Article 9 of the Declaration of 1789, that "if the legislator can provide for an appropriate procedure to hold children under the age of thirteen years for the necessity of an investigation, it can only be resorted to such a measure in exceptional cases and with regard to serious offences" and so you have accepted as ten minors This is the same focus on the specificity of juvenile justice that inspired your decision of 11 August 1993.
In this case, section 14 of the Act lowers, first, the threshold of gravity of the penalties justifying the use of the deduction, from seven to five years, and then extends the retention period from ten to twelve hours, which leads to a maximum of twenty-four hours if the possible renewal is taken into account.
It is in vain that this extension of the retention period is minimal and therefore acceptable.
On the one hand, the 10-hour limit allowed in 1994 is, in view of the young age of the minor, a high ceiling. On the other hand, there would be a paradox to support the little consequences of this elongation because, therefore, we would be in a position to question the usefulness of a custodial measure presented as having no impact. Either she has an impact and she is excessive, or she doesn't have it and she is not necessary. In both cases, it is a rigor contrary to Article 9 of the 1789 Declaration.
This extension is clearly contrary to your above-mentioned case law and thus leads to certain censorship.
III-4. On section 17 of the law.
The purpose of this article is to add to the order of 2 February 1945 a new article 10-1, which organizes the judicial review of minors between thirteen and sixteen years of age according to the provisions applicable under the Code of Criminal Procedure but with the addition of the power to make additional obligations.
This mechanism is, again, contrary to the essential principles of the order of 2 February 1945, that the education should be given over repressive measures in order to preserve the specificity of juvenile justice, and together with articles 8 and 9 of the Declaration of 1789, which guarantee the need for penalties and the presumption of innocence.
To follow the criticized system, it is the result, on the one hand, that minors between thirteen and eighteen years are likely to be subject to a judicial review regime not only identical in part to that of the majors but, moreover, to complementary obligations which ultimately make it a more rigorous regime to the detriment of minors.
The principles of the law of minors are, in some way, reversed: rigor is more important than for majors.
On the other hand, this judicial review mechanism suffers from another vice related to what it can achieve, without saying it or rather without dare to assume it, to the confinement of minors. This makes it much more than just a judicial review.
The second part of the second part of this new article 10-1 provides, in fact, that among the complementary obligations may include respect for "the conditions of placement in an educational centre for the judicial protection of youth or under an authorized service to which the minor was entrusted by the magistrate in accordance with the provisions of Article 10, and in particular a closed educational centre provided for in Article 33".
As will be seen later, these closed educational centres are of an uncertain legal nature and, in any case, are characterized by the confinement of the minor. Not only because their title specifies it, but also because it is the meaning of the seals' statements during the debates.
It must therefore be considered that this is more than an obligation of strengthened judicial review exceeding the acceptable limits on juvenile justice, already, in itself, not necessary within the meaning of Article 8 of the Declaration of 1789 and certainly contrary to the presumption of innocence as defined by Article 9 of the same declaration of rights and freedoms.
The reality of this mechanism is that of provisional judicial detention for minors. This new procedure avoids the systematic use of pre-trial detention of minors who would have been dramatically unconstitutional, but it is no less sourishly contrary to articles 8 and 9 of the Declaration and to the fundamental principles that inspire the 1945 order.
Finally, it is the result of the last paragraph of this 2° that the prosecutor, copied from a possible breach of judicial review, may, in fine, focus on the revocation of such control and result in the detention of the minor under certain conditions. This is what the rapporteur in the National Assembly said at the third session on 1 August.
This power granted to the Public Prosecutor ' s Office ignores Article 66 of the Constitution, which makes the judicial authority the guardian of individual freedom, but also hinders the specificity of juvenile justice since it can compete, in this regard, the juvenile judge.
Beyond the words that want to be deceived, the procedure for provisional detention for minors thus instituted reverses the principle of specificity of the criminal law of minors by inventing a procedure for deprivation of liberty derogatory to the common law and ultimately more rigorous than that of judicial supervision for adults.
Except for crossing a constitutionally defined border by the laws of the Republic, the invalidation of the device proposed by Article 15 is inevitable.
III-5. On section 18 of the law.
The criticized article tends to extend the conditions for pre-trial detention of minors between the ages of thirteen and the age of sixteen, making it possible in correctional matters as long as they have not complied with the obligations of their judicial review.
The lack of knowledge of the principles of the order of 2 February 1945, and together article 9 of the Declaration of 1789, is unfortunately obvious. Act No. 87-1062 of 30 December 1987, by deleting the possibility of remanding a minor of thirteen on the basis of the commission of an offence, provided legal guarantees, adapted to the status of minors, the constitutional requirement of presumption of innocence.
However, it is consistent jurisprudence that the exercise of the legislative power cannot lead to the depriving of legal guarantees of constitutional risks (decision No. 86-217 DC; Decision No. 94-359 DC of 19 January 1995).
However, this is what the criticized article does not make it clear by returning to this measure of protection of minors.
Censorship will not fail to interfere with this only leader.
III-6. On Article 19.
This article establishes a new procedure called a judgement in a timely manner. The authors of the referral do not misunderstand the need to organize a legal response as soon as possible when a minor, sometimes in recidivism, committed an offence. However, it appears that the chosen procedure departs from the principles of the 1945 order, including the need to take into account the personality of the minor and his rapid evolution at that time of life, in order to get closer without admitting to the immediate procedure of appearance.
The careful reading of this provision shows that the legislator has adopted a procedure extremely similar to that provided for in articles 393 to 397-6 of the Code of Criminal Procedure.
For example, article 394 of the Code of Criminal Procedure provides that the public prosecutor may invite the person referred to to appear before the court within a period of not less than 10 days (...) or more than two months.
In paragraph III of article 14-2 new of the order of 2 February 1945, it is provided that "the prosecutor of the Republic informs the minor that he is brought before the court for children to be tried there, at a hearing to which he informs him of the date and time and which must take place within a period not less than ten days or more than one month".
We will admit that similarities are disturbing.
They are all the more so if the possibilities given to the juvenile judge, upon requisition of the public prosecutor's office, are attached to placing the minor in pre-trial detention or under judicial review (see article 14-2). In this regard, this placement under judicial review is of particular significance when one recalls that, according to the new article 15-1 of the 1945 order, this control may be accompanied by a placement in a closed educational centre, which was seen to result in a situation of confinement of the minor.
As for the minor's personality investigation, it is considered negligible since, one year old, it will be sufficient. Such an option singularly ignores the so rapid evolution of young people who are, precisely, at the heart of the essential principles of juvenile justice whose constitutional value cannot fail to be admitted.
At this point, it is not indifferent to refer to the above-mentioned comments of the Minister of Justice of the Government of Mr.A. Juppé opposing an amendment of the National Assembly's Laws Commission to submit minors to an appropriate procedure for immediate appearance. This opposition was then motivated by the fact that such an option would have violated the constitutional principles on the order of 2 February 1945 (see paragraph II of this case).
In any case, such a procedure, the title of which must not deceive, violates articles 8 and 9 of the 1789 Declaration by submitting minors to a procedure whose mechanism is disproportionate, on the one hand, and ignores the special guarantees of which minors must constitutionally benefit, on the other hand. Again, your decisions of 11 August 1993 and 20 January 1994 plead in this sense. The balance of the order of February 2, 1945 requires it.
The censorship is, of all these leaders, enlisted.
III-7. On section 20 of the law.
Section 20 amends section 21 of the 1945 order to assign jurisdiction to the local judge to rule on the contraventions of the first four classes concerning minors. The criminal jurisdiction of this non-professional judge has already been criticized for its unconstitutionality in principle. The power it has to judge minors is even more manifestly violating the fundamental principle recognized by the laws of the Republic of the specificity of juvenile justice and, in any case, article 66 of the Constitution.
Certainly, he did not escape the authors of the referral that section 21 of the order, in his previous writing to the law referred, was already an exception by confiding the judgment of these contraventions to the police court.
Original article 21 indicated that "minors of eighteen years of age will not be subject to the common law on contravention," an express expression of the specificity of juvenile justice, which materializes, in particular, by the fact that the police court can only pronounce the admonition for the minor of thirteen years excluding a fine.
On the other hand, entrusting the judgment of minors, including the youngest, to a non-professional magistrate, whose guarantees he will present, are simply impossible.
Currently, the judge of instance who assumes the office of the police court is a professional magistrate who has followed a particular training that has led him to know, by necessity, the particularisms of juvenile justice assumed by other professional magistrates with whom he has followed a common education.
Nothing like this proximity judge whose nothing guarantees that he will face the issues that can suggest the judgment of a mere breach for a ten-year-old. Some members of the present majority measured the risk, such as Mr.P. Albertini speaking in this sense on the article in question during the first session on Friday, August 2.
That is to say that the unconstitutionality of Article 20 will avoid a risk that many parliamentarians from all sides felt.
III-8. On section 22 of the law.
This article inserts a new article 33 in the 1945 order to create closed educational centres in which minors are placed under judicial review or probation, as specified that in these centres minors are subject to monitoring and control measures.
The article in question has negative incompetence and violates individual freedom and the presumption of innocence as guaranteed by articles 4 and 9 of the 1789 Declaration.
That these "closed educational centres" do not benefit from any specific definition even though they are intended to receive minors whose freedom to go and come will be limited or even denied. However, when the legislator determines, pursuant to Article 34 of the Constitution, the fundamental guarantees granted to citizens for the exercise of public freedoms must exhaust its jurisdiction (Decision No. 96-378 DC of 23 July 1996).
Nothing like that in this case.
Not only is it impossible to know what exactly means the "closed" qualification and what it takes about the regime of the stay of minors in these centres, but, in addition, nothing has been specified during the debates on what the monitoring and control measures the minors concerned will be subject to.
The Minister of Justice has, of course, indicated before the Senate that these centres will be distinguished from existing strengthened education centres by "new legal constraints, closure."
Without a doubt, these are detention centres that do not depend on the prison administration but that will put a real strain on individual freedom and even on the presumption of innocence of minors being placed there.
The words chosen to deceive do not remove your requalification power indispensable to a complete control of a priori constitutionality.
It is up to you to restore the legal reality of these closed centres and to draw the constitutional consequences.
In reality, these are places of confinement which do not want to admit themselves as such and which allow us to retain, under a strengthened judicial review or a probationary stay, minors, while freeing themselves from the protective rules for juvenile justice and constitutional guarantees attached to it.
In these circumstances, by not specifying the precise status of these closed centres which will limit the freedom to go and come from minors, the legislator has misunderstood the extent of its own competence and together the individual freedom and the presumption of innocence as particularly guaranteed under the principles of the law of minors.
From all these leaders, censorship must intervene.
III-9. On Article 23.
By amendment, an article 33-1 was inserted in the 1945 order to suspend family allowances when a minor is placed in a closed educational centre.
This measure is contrary to the principle of articles 8 and 9 of the 1789 Declaration that no one is punishable only by his own act (Decision No. 99-411 DC of 16 June 1999).
In this case, the measure in question carries the qualification of punishment, as evidenced by the power entrusted to the judge. The intention of the amendment's author to indirectly sanction parents cannot escape a careful reading of parliamentary work (AN, session on Friday, 1 August 2002).
However, it is paradoxical to punish the parents after asserting, in the new wording of article 122-8 of the Criminal Code, the principle of criminal responsibility of minors, which is also criticised. The allowances in question do not lose their usefulness on the basis of the child's confinement, and parents continue, for example, to pay a rent related to the size of a housing intended to house this minor, to buy clothes or even school books.
In any case, this penalty is disproportionate and not necessary (decision of 16 July 1996) because there is already a mechanism provided for in Article L. 551 of the Social Security Code which, in addition, provides for objective causes of the guardianship of social benefits.
Of all these leaders, censorship is running.
IV. - On title IV of the law
IV-1. On section 37 of the law.
The purpose of this article is to amend several provisions of the Code of Criminal Procedure, the majority of which relate to the rules of pre-trial detention. In doing so, the criticized law repeals several provisions resulting from the law of 15 June 2000 called "presumption of innocence". However, the purpose of this law was, in particular, to implement legal guarantees to satisfy the principle of the presumption of innocence as it arises from Article 9 of the Declaration of 1789, which is widely enlightened by the European Convention on Human Rights. Therefore, in returning to these legal guarantees, this Act can only be viewed as unconstitutional (decision of 19 January 1995 referred to above).
Two sets of points deserve more particularly, but not only attention.
On the one hand, the proposed new wording for section 137-4 of the Code of Criminal Procedure requires the investigating judge to motivate the order by which he considers that the prosecutor's requisitions for pretrial detention are not justified. The principle being freedom, the obligation now made to this judge of the seat, guardian of individual freedom, to motivate his will to leave an individual free, cannot be constitutionally admitted.
On the other hand, by lowering various thresholds for pre-trial detention, such as the result of the new drafting of Article 137-5 of the Code of Criminal Procedure, the possibility of deciding the deprivation of liberty of an alleged innocent person is broadened. It is therefore a fall in relation to the guarantees that the law of 15 June 2000 had made to the principle of the presumption of innocence that can only be censored to the benefit of the application of the cliquet effect enshrined in your jurisprudence.
IV-2. On section 38 of the law.
The device created tends to provide for the possibility, for the prosecutor of the Republic, to appeal an order of release issued by the examining magistrate or the judge of freedoms and detention, therefore a judge of the seat, asking that this appeal be suspensive.
This so-called rebuttal procedure is terribly unconstitutional in that it ignores Article 66 of the Constitution, which in principle results "when a magistrate of the seat has, in the fullness of the powers conferred on him by Article 66 of the Constitution as custodian of individual freedom, decided by a court decision that a person must be released, it cannot be obstructed by that decision,
We can't say better.
Certainly, the authors of the referral do not know that in the same decision (see considerations 61 to 64) you have admitted the so-called "retention" procedure whose currently criticized device is a misguided decal.
But the legal rigour requires that the exception to the principle asserted in this decision of 22 April 1997 is not transposable in this case, despite the efforts of the Senate to improve a text whose unconstitutionality appeared blatant to the rapporteurs of the law commission (Sénat, report No. 370, p. 150).
In the first place, the scope of the exception allowed by your decision was unique since it concerned administrative detention, which is the detention of a foreigner in an irregular situation in premises that do not fall within the prison administration for a strictly limited time at the departure of the person concerned and which, in any case, cannot exceed ten days, depending on the circumstances.
In this case, it is the possible extension of a pre-trial detention measure in accordance with the principle of innocence presumption, which may last several months depending on the nature of the offence in question.
The difference is all the more easily reflected in the Government's observations produced at the time. To justify this suspensive appeal, he indicated that it was a "measure to meet a compelling practical necessity without which this remedy would be deprived of any effectivity (...). In such assumptions, the suspensive appeal avoids that a decision taken too quickly by a single judge irreparably compromises the execution of a fully justified removal measure."
It is clear that this exceptional derogation from the role that Article 66 of the Constitution assigns to the judicial authority in matters of individual freedom was specific to the problems posed by the practical application of the law of foreigners.
The present situation is radically different.
For, the exception to the principle that you then admitted was limited to the only hypothesis where the interested party does not have effective representation guarantees.
However, the suspensive nature of this prosecutor's appeal and the continued detention of the person whose release was pronounced, during the two working days necessary to judge the prosecutor's request, is directly related to a question of the overall appreciation of the judge of the seat who decided in favour of freedom.
In fact, paradoxically, the amendment of the Senate Laws Commission stating that the appeal can only be declared suspensive if two of the criteria of section 144 of the Code of Criminal Procedure are met, shows enough that this derogatory procedure is not related to a specific purpose, for example, to the guarantees of representation of the person concerned but to the substance of the decision of release of the judge of the seat.
That is why it is important to forcefully recall that the arbitrary character of a detention is not a matter of quantity. At the very moment when a judge of the seat considers that a detention must cease, his prosecution, would it be for two working days, is by definition arbitrary under the first paragraph of Article 66, and it does not even depend on the legislator to decide otherwise, nor on anyone else.
Secondly, the criticized situation is radically different from that of 22 April 1997 to the extent that the suspensive appeal of the prosecutor's office is intended to defeat the principle of the presumption of innocence and not only to facilitate the reappointment of a person on the border of a person residing in the national territory without regular title.
On the one hand, by returning to a legal mechanism for the protection of the presumption of innocence, the criticized law removes a guarantee with a constitutional standard.
On the other hand, the possibility of defeating the decision to release by a judge of the seat ignores Article 66 of the Constitution and in conjunction with Article 9 of the Declaration of 1789.
Thirdly, this possibility open to the public prosecutor's office, but not to the detained person when he or she is in custody, breaks the equality of weapons that are constitutionally required.
It is not doubtful that the prosecutor's office is a party to the criminal proceedings and therefore it is contrary to the rules of the fair trial to provide a part of a faculty that the or others do not have, and especially if it is individual freedom.
For all these reasons, this procedure is subject to certain censorship.
IV-3. On section 42 of the law.
This article introduces a simplified procedure for the prosecution of certain offences giving the public prosecutor the freedom to choose the use of these singular methods of judgment in certain circumstances.
Sections 495 to 495-6 of the Code of Criminal Procedure ignore the principle of equality before the courts as you have had the opportunity to assert it by censoring the possibility envisaged for the president of the High Court to refer certain cases to a single judge and not to the normally competent collegial training according to his discretion. You have considered that respect for the principle of equality before the justice system included in that of equality before the law is "impeding that citizens in similar conditions and prosecuted for the same offences are tried by differently composed courts" (Decision No. 75-56 DC of 23 July 1975).
In this case, the criteria set out in new article 495 of the Code of Criminal Procedure for the Public Prosecutor's Office to direct the procedure to the simplified form are not such an exception to the principle of equality before the courts.
The censorship will have to intervene again.
IV-4. On section 49 of the law.
The purpose of this article is to amend section 138 of the Code of Criminal Procedure by allowing the decision to impose the obligation of judicial review to be accompanied by electronic supervision.
Such an unnecessary rigor undermines individual freedom and privacy, and ignores the presumption of innocence. Articles 2, 4, 8 and 9 of the 1789 Declaration are therefore unknown.
It is true that the faculty of electronic surveillance requires the consent of the individual in the presence of his lawyer. What appears for a guarantee, though indispensable, cannot be enough to purge the vices of unconstitutionality in question.
This changes the nature of judicial review.
First, one can imagine that, in fact, it will at least be skillfully suggested that this solution will always be preferable to other more radical measures, so that the interested party will see its consent to the relatively oriented electronic surveillance measure.
Then, it remains that, beyond these guarantees, such a measure leads to the dragging of the judicial control measure to a constraint of freedom to go and come much stronger.
Finally, it should be noted that, with regard to judicial review, this means that minors may also be subject to such placement under electronic supervision. What, for example, at school, can cause, we imagine, an infringement of the child's dignity.
It should be noted in this regard that article 49 also amends article 723-9 of the Code of Criminal Procedure to allow the implementation of the technical device allowing remote control to be entrusted to a private person authorized under the conditions established by decree in the Council of State.
It is therefore a kind of "privacy" of criminal proceedings that is not compatible with the principles of our law. It is all the less because it accompanies the extension of the possibilities of electronic supervision, including for minors.
Therefore, censorship will not fail to be pronounced.
(List of signatories: see decision No. 2002-461 DC.)
