Key Benefits:
The Constitutional Council was seized, by more than sixty members and more than sixty senators, of appeals against the Law of Guidance and Programming for Justice, adopted on 3 August 2002.
The appellants invoke, contrary to Article 3, Title II, articles 11, 12, 13, 16, 17, 18, 19, 20, 22, 23 relating to Title III, sections 37, 38, 42 and 49 of the Act, the means that the Government requires the following observations.
I. - On Article 3 of the Law
A. - Article 3 of the referred law allows the State to derogate from the provisions of articles 7 and 18 of Act No. 85-704 of 12 July 1985 relating to the mastery of public works and its relationship with the mastery of private work by confiding a single person, or grouping of persons, a mission of design, construction and development of penal institutions. The execution of this mission will result from a contract passed according to the procedures of the public procurement code. It is further clarified that, in correctional institutions, functions other than those of management, transplantation or supervision may be entrusted to persons of duly authorized private law.
According to the requesting parliamentarians, these provisions would ignore the principle of freedom to undertake and the principle of equality that implies free competition in public order. They further argue that the legislator would not have exhausted its jurisdiction by refraining from determining the guarantees that would apply to these particular contracts.
B. - This argument cannot be accepted.
1. It is important, first of all, to emphasize that the provisions of the referred law are limited to amending, on limited points, existing provisions, those of article 2 of Act No. 87-432 of 22 June 1987, which already allowed the State to entrust to a person, or a group of persons, a mission covering both the design, construction and development of penal institutions. For the most part, the purpose of the amendments is to explain what was already the result of the 1987 law - that is, the possibility of derogating from the provisions of sections 7 and 18 of Act No. 85-704 of 12 July 1985 - and to submit the contracts referred to in the Public Procurement Code, whereas only a competitive bidding procedure was previously provided.
They are, moreover, and essentially, similar to the provisions of Article 3 I of the Guidance and Programming Law on Internal Security, adopted on 31 July 2002, which were declared in conformity with the Constitution by Decision No. 2002-460 DC of 22 August 2002.
2. Secondly, the provisions of section 3 of the law could not be considered as contrary to the principle of equality, freedom of conduct, or to a principle of free competition applicable to public order.
On the one hand, it must be recalled that the law of public order is the result of choices made by the legislator and by the regulatory authority, only in accordance with the constitutional principle of equality (Decision No. 2001-452 DC of 6 December 2001) and that it is always lawful for the legislator to amend or amend some of the provisions governing public order, if it considers that such adjustments are appropriate and allow the different general interests to be reconciled. In particular, the Government intends to emphasize that the free competition invoked by the applicants does not constitute a constitutionally valued principle that would oppose the legislative changes.
In the meantime, and in this case, it may be pointed out that the disputed provisions are limited to the regulation of public order, derogating from two sections of the Act of 12 July 1985 and an article in the Public Procurement Code.
On the other hand, the contested provisions are not intended to exclude a class of companies from the possibility of presenting offers in the course of the proceedings that will be organized. By themselves, they do not affect the principle of equality or the freedom to undertake.
In fact, contrary to what is supported, the provisions in question do not prevent small and medium-sized enterprises from gaining access to the corresponding public markets. On the contrary, it may be noted that they explicitly reserve the possibility for groupings of companies to be entrusted with the execution of the contracts - which allows companies that could not compete alone to bid - and that they provide that allotment is possible, even if the mode of judgment of the offers is developed. In addition, small and medium-sized enterprises will always be able to participate in the realization of the work considered by subcontracting.
In any case, one can only support an infringement of the principle of equality would result from the fact that allotment would no longer be mandatory. In itself, allegiance - which is not excluded by the law referred to above - does not constitute a necessary condition to respect the principle of equality. As a general rule, it is only a simple faculty opened under section 10 of the Public Procurement Code. It can certainly be used, even if it is not its only justification, to facilitate access by small and medium-sized enterprises to certain markets. However, one cannot deduce that the removal of an obligation of allegiance is contrary to the constitutional principle of equality. It is no longer possible to argue that the intervention of a global judgment, by derogation from the provisions of Article 10 of the Public Procurement Code, would have the effect of questioning the very principle of allegiance: it simply allows to appreciate the coherence and relevance of the offers in order to retain the best project.
3. In the third place, it cannot be seriously argued that the legislator would have remained below its jurisdiction by refraining from determining the safeguards to which such contracts were used. The rules intended to govern the public order of the State are, in fact, the competence of the regulatory authority and it is not the duty of the legislator to determine, in this respect, particular guarantees.
In this case, it may be noted that the legislator has specified that the contracts in question would be subject to the public procurement code and that they could not include stipulations under certain categories of conventions such as emphyteotic lease, purchase option rental or leasing.
Finally, if the formality of the approval of the terms of reference of each contract by decree in the Council of State was abolished by the legislator, in relation to the previous provisions of the law of 22 June 1987, it was because it appeared, in view of the experience gained since 1987, that such a procedure was unnecessaryly heavy and that it was sufficient to apply the usual procedures of the public procurement code.
II. - Title II of the law
A. - Within title II of the law referred to, relating to proximity justice, section 7, amending the code of the judicial organization, is intended to establish in the jurisdiction of each court of appeal the courts of first instance referred to as local courts and to determine their competences and the essential rules of their operation. Article 8 specifies their competence in conciliation. Article 10, amending the Code of Criminal Procedure, provides that the jurisdiction of proximity shall be competent to judge police offences whose list is fixed by decree in the Council of State and to validate, on delegation given by the President of the High Court, measures of criminal composition.
In contrast to these provisions, the appellants argue that the creation of this new court order, with civil and criminal powers, could not be decided by the ordinary law before the organic law had been passed, the provisions of which should determine the status of the non-professional judges appointed to sit there. Members of Parliament and requesting senators further argue that the establishment of this order of jurisdiction would ignore the provisions of articles 64 and 66 of the Constitution and the right to a judge guaranteed by article 16 of the Declaration of Human and Citizen Rights, because it would have the effect of entrusting non-professional judges with civil and especially criminal competence. They also argue that the legislator, in violation of article 34 of the Constitution, would not have exhausted its jurisdiction by not determining itself the list of contraventions within the jurisdiction of the local jurisdiction, and that the creation of this new court order would undermine the principle of equality before the courts. The MEPs add that the creation of the community jurisdiction would undermine the principle of continuity of public service.
B. The Constitutional Council cannot endorse this argument.
1. Firstly, grievances relating to the exercise of the functions of a judge of proximity by non-professional judges call for the following observations.
(a) First, it will be observed that the arguments of the requesting parliamentarians are ineffective in this regard.
In fact, no provision of the law referred to has the purpose or effect of entrusting the exercise of the functions of a judge of proximity to a particular class of magistrates. The law establishes a new order of jurisdiction and determines its constituent elements, as it belongs to it to do under article 34 of the Constitution. But none of its normative provisions took advantage of whether the exercise of the functions of local judges would be entrusted to professional judges or non-professional judges.
With respect to the Constitution of the provisions of the law referred to, the Constitutional Council will only be able to deviate from the argument which it is seized as having no scope in respect of the provisions contested before it.
(b) It is true that the Government provides that the local courts will be composed of non-professional judges. This intention appears in the words, in themselves without normative value, of the report annexed to the law referred to. In addition, in line with this orientation, the Government filed a draft organic law on the office of the Senate on July 24, 2002, which introduced, within Order No. 58-1270 of December 22, 1958, the Organic Law on the Status of the Judiciary, a new chapter setting the conditions for the recruitment and appointment of local judges, as well as those for the exercise of their functions.
However, this orientation does not appear to be contrary to constitutional requirements.
First, it can be observed that our legal organization has traditionally experienced jurisdictions composed, in whole or in part, of non-professional judges, such as trade tribunals, human rights councils or children's courts. In these jurisdictions, non-professional judges are not always associated, in the exercise of the judicial function, with career judges.
It is probably the result of article 64 of the Constitution, coupled with articles 65 and 66, that the functions of the judiciary are normally exercised by persons who intend to devote their professional life to the judicial career. The Constitutional Council, however, admitted that, for a limited part, functions normally reserved for career judges may be exercised on a temporary basis by persons who do not intend to embrace the judicial career (Decision No. 92-305 DC of 21 February 1992; Decision No. 94-355 DC of 10 January 1995; Decision No. 98-396 DC of 19 February 1998).
In particular, the Constitutional Council, in its Decision No. 94-355 DC, admitted that the functions of a judge of the courts of large instance, with competence in civil and criminal matters, may be exercised by non-professional judges, recruited on a temporary basis, and may, moreover, jointly carry out certain professional activities. In all cases where a recruitment of magistrates acting on a temporary basis has been organized and judged in accordance with the Constitution - advisers and lawyers general to the Court of Cassation in Extraordinary Service, magistrates acting on a temporary basis as a judge of proceeding or as an assailant in the collegial formations of the courts of large instance or judicial advisers in Extraordinary Service -, the Constitutional Council admitted that these magistrates had a vocation to perform the same functions as judges
Thus, there is no constitutional barrier prohibiting, in principle, non-professional judges from entrusting civil and criminal jurisdiction.
Furthermore, as to the concern that led the Constitutional Council to consider that the use of non-professional judges, recruited on a temporary basis, was only possible provided that they exercise a limited part of the functions normally performed by career judges, it is taken into account that these persons, as a result of the definition of jurisdictional competencies to which they may be affected, will not be aware, in any event, of a modest nature, that
In this regard, the Government intends to emphasize that the civil jurisdiction assigned to the local jurisdiction is limited to personal and security actions undertaken by a natural person, for the purposes of his or her non-occupational life, up to the value of EUR 1,500 or an indeterminate value but which originate in the execution of an obligation not exceeding EUR 1,500. The jurisdiction of the court of proceedings shall, for its part, bear under the provisions of article R. 321-1 of the code of the judicial organization, on personal or real estate shares up to 3,800 EUR in the last resort, and up to 7,600 EUR in appeals, as well as, without monetary limit, on the powers listed in sections R. 321-2 to R. 321-23 of the code of the judicial organization.
In criminal matters, the proximity judge only received jurisdiction for certain police contraventions and for the validation of criminal composition measures. On the latter point, it should be noted that the legislator has strictly governed the jurisdiction of the local courts: it will, in fact, be exercised exclusively within the framework of a delegation given by the president of the Court of Grand Instance, which will reconcile the intervention of a magistrate of the local jurisdiction and that of the president of the Court of Grand Instance. In addition to this essential reservation, the strict conditions and guarantees set out in sections 41-2 and 41-3 of the Code of Criminal Procedure, which include the author's consent to the proposed measures.
Finally, it should be noted that, contrary to what is supported, the use of non-professional judges paid on other bases than the salaries established by decree in council of ministers does not affect the principle of continuity of public service. Derogatory methods of remuneration, adapted to the particularities of the situation of non-professional judges, have already been admitted by the Constitutional Council (Decision No. 94-355 DC of 10 January 1995).
(c) It is important, when the use of non-professional judges is considered, that appropriate safeguards are used to meet the principle of independence that is inseparable from the exercise of judicial functions. To this end, the persons concerned must be subject to the rights and obligations applicable to all judges, subject only to the specific provisions arising from the exercise of their functions on a temporary basis (Decision No. 92-305 DC of 21 February 1992; Decision No. 94-355 DC of 10 January 1995; Decision No. 98-396 DC of 19 February 1998).
The appellants argue that the provisions of the law referred to could not be definitively adopted before the intervention of the organic law which will determine the rights and obligations of these non-professional judges.
The Government does not share this analysis. Logic appeared to him that the institution, by ordinary law, of the new order of jurisdiction and the determination of its constituent elements preceded the discussion and adoption of the organic law relating to the statutory rules applicable to non-professional judges called upon to compose these courts.
It may also be noted that this had been the approach of the Constitutional Council when it had been confronted, in a similar way, with the articulation between an ordinary law on the Ombudsman of Children and the organic law making it ineligible to the National Assembly and the Senate. It was then ruled that the parliamentary procedure leading to the prior adoption of the organic law was contrary to the Constitution (Decision No. 99-420 DC of 16 December 1999), and that the adoption of the ordinary law should take place before or at least be concurrent.
In any event, it must be emphasized that the absence to date of statutory provisions applicable to non-professional judges who may exercise the functions of a judge of proximity has the sole effect of preventing them from entrusting these functions to such persons, but their absence to date does not affect, in any way, compliance with the Constitution of the provisions of the law referred to.
2. Secondly, the provisions mentioned do not ignore the constitutional principle of equality before the courts.
The provisions of the law referred to determine the jurisdictions vested in the order of jurisdiction called the jurisdiction of proximity under conditions that fully respect the principle of equality.
Thus, in civil matters, the division of jurisdiction between the local jurisdiction and the court of proceedings or the court of large instance is subject to a common monetary criterion. Disputes relating to the same matters may, of course, fall within the jurisdiction of different jurisdictions, as it is already between the Court of Appeal and the Court of Grand Instance. However, the rate of jurisdiction, determined by a monetary threshold criterion, reflects an objective difference that could base the division of civil jurisdiction between jurisdictions. No infringement of the principle of equality results from this objective choice.
In criminal matters, the provisions of Article 10 of the law referred to, amending the Code of Criminal Procedure, determine similarly in an objective manner the cases of jurisdiction of the jurisdiction of the locality, without disregarding the principle of equality.
The authors of the appeals more specifically criticize the provisions of Article 7 of the referred law introducing Article L. 331-3 to the code of the judicial organization. This section provides for the possibility, in civil matters, of referring the matter to the court of proceedings, which is then adjudicated as a court of proximity, in the event of a serious legal difficulty relating to the application of a rule of law or the interpretation of the contract between the parties.
This referral mechanism, which has nothing to do with the hypotheses provided for in cases of legitimate suspicion or recusal by the articles of the new Civil Procedure Code invoked by the appellants, has been instituted in the interests of good administration of justice and in the interests of the parties to the dispute. Its implementation is conditioned by the legislator on the use of a criterion derived from a serious difficulty, which can be noted that it is the pre-judicial referrals between the two jurisdictions. Contrary to what is supported, the implementation of this referral mechanism cannot depend on an "arbitrariness" of the proximity judge.
However, it may be recalled that there are mechanisms for referral within the judicial system which are similar to the mechanism established by the law referred to. This is the case, for example, between the enforcement judge and the collegial training of the Court of Grand Instance (see Article L. 311-12-2 of the Code of the Judicial Organization) or between the Family Justice and the collegial training of the Court of Grand Instance (see Article L. 312-1 of the Code of the Judicial Organization). Similarly, the single judge in correctional matters may, under section 398-2 of the Code of Criminal Procedure, refer the judgment of a case to the correctional court if the complexity of the facts warrants it. It may still be noted that the civil judge of the referees may refer to a hearing for a determination on the merits of the application.
3. Thirdly, the provisions relating to the jurisdiction of the local judge to try police contraventions are not subject to negative incompetence.
The provisions of Article 706-72 inserted into the Code of Criminal Procedure by Article 10 of the law referred specify that the jurisdiction of proximity is competent to judge police offences whose list is fixed by decree in the Council of State. The court then rules according to the procedure applicable to the police court. For the judgment of offences under the first four classes, the functions of the Public Prosecutor ' s Office are performed by an officer of the Public Prosecutor ' s Office, in accordance with the provisions of sections 45 to 48 of the Code of Criminal Procedure.
Contrary to what the requesting parliamentarians support, the legislator could without any negative incompetence, after stating that the proximity judge is competent in criminal matters to try police contraventions, refer to a decree in the Council of State to determine the precise list of such contraventions.
It is the duty of the legislator, under Article 34 of the Constitution, to establish rules concerning the determination of crimes and offences, criminal procedure, the creation of new orders of jurisdiction. In the latter case, it is the responsibility of the legislator to determine the constitutive rules of new jurisdictions (decision No. 61-14) L of 18 July 1961; Decision No. 64-31 L of 21 December 1964; Decision No. 65-33 L of 9 February 1965). The regulatory authority is competent to determine the applicable rules that are not among those that determine the constituent elements of the jurisdictional order. This removes provisions relating to territorial jurisdiction, even in criminal matters (Decision No.77-99 L of 20 July 1977), or the designation of the court of proceedings as competent jurisdiction within the judicial order in civil matters (Decision No. 87-149 L of 20 February 1987).
Thus, in accordance with the Constitution, the legislator has determined the rules of constitutive jurisdiction of the community. In criminal matters, he himself applied, as it was his duty to do, the principle of a criminal attribution jurisdiction, by derogation from the jurisdiction of the police tribunal determined by article 521 of the Code of Criminal Procedure. In addition, it determined the limits of this jurisdiction by specifying that contraventions, and alone, could fall within the jurisdiction of the local jurisdiction. On the other hand, as soon as he established this maximum jurisdiction, he was not obliged to determine himself the precise list of police contraventions, and could refer on this point to a decree in the Council of State.
It may be added that, in principle, under article 34 of the Constitution, which reserves the only determination of crimes and offences, the matter of police contraventions does not fall within the sphere of the law but within the competence of the regulatory authority.
Finally, it may be noted that the reference to a decree in the Council of State to determine the precise list of contraventions exists already in positive law (see, for example, article 529 of the Code of Criminal Procedure in respect of flat fines or article L. 2212-5 of the general code of territorial authorities for the powers of municipal police officers).
Thus, the various means articulated by the authors of the referrals against the provisions of title II of the referred law will only be excluded.
III. - Title III of the law
Title III of the Act contains several provisions reforming the criminal law of minors. Some are criticized by the authors of the appeals by invoking, according to their expression, the essential principles of the order of February 2, 1945 on delinquent childhood, which, in their view, should be recognized the value of fundamental principles recognized by the laws of the Republic.
On this point, the Government observes that to date the Constitutional Council has not conferred constitutional value on the principles governing the order of 2 February 1945.
Certainly, by at least two decisions, he clarified that criminal proceedings for minors should be surrounded by special guarantees. Thus, if Article 9 of the Declaration of Human and Citizen Rights leaves the legislator the power to institute proceedings for the detention of minors, above a minimum age, for the necessity of an investigation, it is on condition that it can only be used in exceptional cases and for serious offences. The implementation of this procedure, which requires special guarantees, must be subject to the decision and subject to the control of a magistrate specializing in the protection of children (Decision No. 93-326 DC of 11 August 1993; Decision No. 93-334 DC of 20 January 1994). However, these decisions, which have determined the scope to be recognized under the Declaration of Human and Citizen Rights with regard to minors, have not been based on a fundamental principle recognized by the laws of the Republic.
The Constitutional Council is not likely to recognize the existence of a fundamental principle recognized by the laws of the Republic, in the sense given by the first paragraph of the Preamble to the Constitution of 27 October 1946 to which the Preamble to the Constitution of 4 October 1958 refers, only on the condition that this principle has found its translation into texts derived from the republican legislation intervened prior to the entry into force of the Constitution of 27 October 1946 and that no republican text 2 It does not appear that the order of 2 February 1945, adopted by the Provisional Government of the French Republic, met these conditions.
Before 1945, only two laws were passed under the Third Republic in this regard. The Act of 12 April 1906 amending articles 66, 67 of the Criminal Code, 340 of the Criminal Code and fixing the criminal majority at the age of eighteen raised the criminal majority from sixteen to eighteen years by amending the Penal Code then applicable, and decided to reduce the penalties applicable to minors aged sixteen.
The Act of 22 July 1912 on the courts for children and adolescents and on supervised freedom established special rules of criminal responsibility for minors under thirteen years of age and minors between thirteen and eighteen years of age, as well as special procedures for judging them, including an investigation into the personality of the child and its material and family situation and the intervention of specialized courts. The law also establishes measures of supervision of freedom.
The common guidelines for these texts are thus summarised by the minoration of criminal responsibility of minors, the existence of special judgement procedures, and the institution of specialized jurisdictions. The examination of the disputed provisions demonstrates that these principles, assuming that they are recognized constitutional value, are not challenged by the law referred to.
It is for the benefit of these introductory remarks that the Government intends to bring to the grievances specifically directed against articles 11, 12, 13, 16, 17, 18, 19, 20, 22 and 23 of the law the following elements of response.
With regard to articles 11, 12 and 13:
A. - Article 11, amending the Criminal Code, sets out the principle of criminal responsibility for juveniles capable of discernment, whose implementation involves special measures of protection, assistance, supervision and education. It also determines the principle of educational sanctions that may be imposed on minors between the ages of 18 and 18, as well as the penalties that may be imposed on minors between the ages of 13 and 18. Section 12, amending section 2 of the order of 2 February 1945, provides that the Juvenile Court or Juvenile Court may impose an educational penalty against minors between the ages of 18 years or a sentence against minors between 13 and 18 years of age, taking into account the mitigation of their criminal responsibility. Article 13, for its part, inserting a new article in the order of 2 February 1945, determines the list of educational sanctions that may be imposed by the Children's Court.
Against these provisions, the requesting parliamentarians argue that the institution of educational sanctions would break the balance between education and punishment, which would have constitutional value and would be enshrined in the 1945 order. The appellants further argue that the provisions of Article 13 would ignore the principle of necessity and proportionality of the penalties guaranteed by Article 8 of the Declaration of Human and Citizen Rights, in particular with regard to the sanction prohibiting the victim of the offence for a specified period of time.
B. These means can only be removed.
1. Article 11 of the above-mentioned Act adopts a new drafting of Article 122-8 of the Criminal Code, which is limited to the inclusion in an express textual provision of the principles which already govern the criminal responsibility of minors, in accordance with the jurisprudence of the Court of Cassation and in the line of the order of 2 February 1945. Article 12 alone adds educational sanctions, in article 2 of the order of 2 February 1945, one of the measures that may be imposed by juvenile courts. In no way does this article call into question the possibility for judges to take educational measures, educational sanctions and penalties that are not likely to be imposed under the new wording, only "when the circumstances and personality of the minor require it."
Thus, articles 11 and 12 of the law only make clearer the criminal liability regime for minors, without making further amendments to the rule of law than the introduction of educational sanctions.
2. Contrary to what is supported by the requesting members, the educational sanctions established by section 13 of the Act are not contrary to the principle of proportionality of the penalties set out in article 8 of the Declaration of Human and Citizen Rights.
It may be recalled, on the one hand, that with respect to minors over thirteen years of age, educational sanctions represent an intermediate threshold between the educational measures provided for in article 15 of the order of 2 February 1945 and the penalties provided for in the Penal Code and which may be imposed under sections 2 and 18 of the order. It cannot, therefore, be seriously argued that educational sanctions would be taken away from a manifest disproportion, while these are less serious measures than the penalties currently applicable to these minors and that their pronouncement is governed by the law.
On the other hand, in the case of minors of thirteen years of age, they may already be subject to protection, assistance, supervision and education measures, as provided for in sections 15 and 17 of the order, as well as to reparation measures provided for in section 12-1. In this way, educational sanctions are used to broaden the scope of the responses that children's courts are likely to provide to juvenile delinquency between the ages of ten and thirteen.
If these measures include prohibitions or binding obligations, their application to minors under thirteen years of age is neither excessive nor disproportionate. These sanctions have a strong educational content: prohibitions or obligations that may be imposed have a direct connection to the offence committed, which gives them a clearly understandable meaning for the convicted minor and emphasizes their educational character. Thus the confiscation of the knife that was used to hurt the victim, the ban on appearing in the supermarket where the robbery was committed or the ban on meeting the victim of the extortion committed are sanctions that are naturally similar to the offence committed. It may also be noted that the law has carefully framed each of these educational sanctions, including, whenever necessary, the duration of the prohibition or obligation.
Finally, the argument put forward by the referral and derived from the fact that the ban on meeting the victim of the offence would be likely to have disproportionate consequences, for example, involving the discollarization of the minor, does not prevail. It is, in fact, first in the victim's interest that this type of measure will be likely to be pronounced and it will be up to the court to assess the consequences that such a sanction is likely to have in relation to the intended educational effect. In addition, the pronouncement of such a sanction will not have the radical consequences evoked by the referral: for the example of the prohibition to go to the school where the victim is schooled, the minor would, in any event, not be forced to interrupt his or her own education but simply to change his or her institution.
For example, educational sanctions, whether applicable to minors between the ages of ten and thirteen, are an appropriate response to the increase in the number and severity of offences committed by minors. They are intended, in the very interest of these, to preserve them from the risk of recidivism that a feeling of impunity does not fail to favour. Their conformity to the Constitution does not appear doubtful.
With respect to Article 16:
A. - Section 16 amends the conditions, as determined by section 4 of the order of 2 February 1945, in which a 13-year-old may, on an exceptional basis, be held for the purposes of the investigation, where there are serious or concordant indications that he attempted to commit a crime or certain offences.
According to the authors of the appeals, the amendments made would be contrary to the requirements of Article 9 of the Declaration of Human and Citizen Rights as interpreted, with regard to the criminal law of minors, by the jurisprudence of the Constitutional Council (Decision No. 93-326 DC of 11 August 1993; Decision No. 93-334 DC of 20 January 1994).
B. - This grievance must be dismissed.
Article 16 of the Act only amends, on three points, a procedure which, in principle, was found to be in conformity with the Constitution by Decision No. 93-334 DC of 20 January 1994. By this decision, the Constitutional Council found that an exceptional detention procedure for minors between the ages of ten and thirteen was admissible, provided that the offences that could justify its implementation were serious, that it was subject to the prior agreement and control of a magistrate specializing in child protection, and that its duration was short.
The purpose of the provisions of the referred law is to substitute, in order to ensure consistency with the provisions of section 80-1 of the Code of Criminal Procedure on the examination, on the earlier condition that there are "serious and consistent indices" presume that the minor has committed or attempted to commit a crime or certain offences a condition requiring "serious or concordant indices". They also aim to extend the maximum duration of the deduction from 10 to 12 hours and to lower the threshold of gravity of the offences justifying the use of the procedure.
These amendments do not affect constitutional requirements.
In the first place, the retention period remains short. Even elongated by two hours, it corresponds to half of the period of custody in common law (24 hours), which should be recalled that it is likely to be applied to minors aged at least thirteen years.
Secondly, the implementation of this procedure remains linked to the existence of serious offences, even if the threshold of gravity has been lowered. For example, the five-year term of imprisonment in question corresponds to the aggravated robbery (article 311-4 of the Criminal Code), the degradation that caused a significant injury committed with aggravating circumstance (article 322-3 of the Criminal Code) or the violence resulting in a total incapacity for work greater than eight days committed with aggravating circumstance (article 222-12 of the Criminal Code).
Thirdly, the law has fully maintained the special guarantees that relate to this procedure: the measure can only be implemented on an exceptional basis, it is decided by a specialized magistrate, the appointment of a lawyer is mandatory from the beginning of the measure, the extension of the measure can only intervene exceptionally. In addition, the guarantees provided for custody of minors aged sixteen apply: information from parents, and medical visits from the beginning of the measure.
With regard to articles 17 and 22:
A. - Article 17 determines the conditions under which minors between thirteen and eighteen years of age may be placed under judicial review and the obligations that may be imposed on them in the context of such control. For its part, Article 22 is intended to create closed educational centres for minors placed under judicial supervision or probation. In these centres, minors will be subject to monitoring and control measures to ensure that educational and educational follow-up is strengthened and adapted to their personality. The violation of the obligations to which the minor is subjected may result in pre-trial detention or imprisonment.
The authors of the appeals argue that the provisions of Article 17 would infringe upon the essential principles of the order of 2 February 1945 and ignore articles 8 and 9 of the Declaration of Human and Citizen Rights, in that, on the one hand, they would subject the minors to a more rigorous judicial control regime than that applicable to the majors and that, on the other hand, they could lead to a confinement of the minors in the closed courts. They add that the transmission to the prosecutor of the Republic of reports relating to the behaviour of the minor would be likely to allow him to intervene in the proceedings under conditions contrary to article 66 of the Constitution. Contrary to the provisions of Article 22, the requesting parliamentarians argue that they would be incompetent negatively, in that the status of closed centres would not be sufficiently specified by the legislator, and that they would undermine individual freedom and the presumption of innocence guaranteed by articles 4 and 9 of the Declaration of Human and Citizen Rights.
B. The Constitutional Council cannot endorse this argument.
1. With regard to the special judicial oversight obligations applicable to minors, it is necessary, first of all, to recall that the magistrates may already order, pursuant to articles 8 and 11 of the order of 2 February 1945, in the course of proceedings, a measure of freedom under supervision. They may also, under section 10 of the order of 2 February 1945, entrust the minor to certain institutions. However, these placement measures are independent of judicial oversight obligations that may also be imposed. As a result, the minor may comply with his or her obligations under judicial review without complying with the obligations arising from the measures of placement, so that the lack of awareness of these obligations cannot be sanctioned within the framework of judicial review.
This situation does not allow for the establishment of the authority necessary for the conduct of the placement or educational measures, and leaves some juvenile offenders, without imposing any penalty, to the minimum discipline required under these measures.
This is why the law has established two new obligations specific to minors, which can be imposed on them in the context of judicial review. The provisions in question relate only to the judicial review of measures that could already be taken in the context of surveillance measures of freedom. However, they guarantee compliance with these obligations by the effect of the consequences, in the event of a violation, of the revocation of judicial review.
Such coherence and strengthening of its effectiveness cannot be found to be contrary to the Constitution. The measures established are necessary, justified and proportionate. Their implementation is decided by a magistrate and governed by the law.
In addition, it may be noted that, with respect to minors between 13 and 16 years of age, judicial review may only be pronounced in correctional matters on the dual condition that the penalty in question is greater than or equal to five years of imprisonment and that the minor has already been subjected to one or more educational measures or to a sentence of educational sanction or punishment.
2. For their part, closed educational centres are, under section 22 of the law amending section 33 of the order of 2 February 1945, authorized public institutions or private institutions, in which minors may be placed under judicial review or probation. These centres provide an educational and educational project adapted to their personality for the benefit of minors. The violation of the obligations to which minors are placed in custody - i.e., the fact that they are released outside the authorized outlets - exposes them, as the case may be, to be held in pretrial detention by revocation of the judicial review or to be imprisoned in accordance with the revocation of the stay.
The "closed" nature of these centres is thus the obligation, inherent in this type of investment, to have to respect the operating rules. Freedom within these centres is restricted only by the fact that this obligation is accompanied by the threat of the revocation of judicial review or the suspension. In other words, the placement measure carries a legal restriction on the rights of the minor; the lack of knowledge of the obligations set out in the case may only be sanctioned by the judge after an assessment of the entire circumstances of the case. The placement measure does not entail physical deprivation of liberty, as in cases of pre-trial detention or imprisonment, which imposes the maintenance in premises determined by physical coercion measures.
It may be observed that other measures, which may already be imposed on minors under judicial review, are subject to comparable legal restrictions: for example, the ban on leaving a territory delimited by the judge, the prohibition on meeting the victims of the offence or the accomplices, or the obligation to undergo detoxification under hospitalization.
It is also important to note that the law provides special guarantees for the award of a measure of placement in a centre within the framework of the judicial review: it can only be ordered for a period of six months, which can only be renewed once for the same period by reasoned order; In addition, the placement of minors between the ages of thirteen and the age of sixteen is subject to special conditions that limit the application of the measure, in addition to criminal matters, to minors in a prison sentence of more than five years, for which previous measures failed and did not prevent the commission of a new serious offence. The placement decision is taken in this case after a conflicting debate.
By adopting the provisions on closed educational centres, the legislator has thus sufficiently characterized the measures that may be imposed on minors and has not remained below its jurisdiction. As long as the placement did not take physical deprivation of liberty, the legislator did not need to further clarify the modalities for the operation of the centres intended to accommodate them or the nature of the monitoring and control measures to ensure a strengthened educational and educational follow-up adapted to the personality of minors. Moreover, it may be noted that the legislator has not further clarified the terms and conditions for other obligations that may be imposed under judicial review, such as the obligation to undergo treatment of detoxification.
Given the safeguards and limited scope of this measure with regard to minors between thirteen and sixteen years of age, the placement in a closed centre cannot, at last, be seen as disproportionately affecting individual freedom or the presumption of innocence. This is a balanced measure that offers an alternative to detention for minors between 16 and 18 years of age who are particularly delinquent and, in criminal matters, for minors between 13 and 16 years of age. It also allows, for these and correctional purposes, to have an additional measure, made necessary by the failure of less restrictive measures than educational measures or educational sanctions.
3. The authors of the referral also contest the provision of the last paragraph of Article 10-2 of the order of 2 February 1945 in its drafting pursuant to Article 17 of the referred Act, which provides for the issuance of a copy of the reports to the Public Prosecutor's Office on breaches of the obligations of judicial review and sent by the person responsible for the department responsible for the minor to the judge of the child or to the investigating judge.
This simple transmission is intended to allow the prosecutor to be informed of these breaches so that, if necessary, he may take remand requisitions from the judge of the children or the examining magistrate after revocation of the judicial review. The purpose of this provision is not to confer on the Public Prosecutor's Office, which is still an integral part of the judicial authority, new prerogatives: it is intended only to enable it to exercise the powers it exercises during judicial information. The invocation by the authors of the referral of the terms of Article 66 of the Constitution is thus unfounded.
With respect to Article 18:
A. - Article 18 determines the conditions under which minors between thirteen and eighteen years under review may be placed in pretrial detention by the judge of freedoms and detention.
According to the remedies, these provisions would ignore the principles of the order of 2 February 1945 and article 9 of the Declaration of Human and Citizen Rights. They would also have the effect of depriving legal guarantees of the requirements of a constitutional character, in the terms of Act No. 87-1062 of 30 December 1987.
B. - These grievances can only be dismissed.
The Government intends to recall that it is always lawful for legislators to amend previous texts or to adopt, for the realization or conciliation of constitutional objectives, new modalities for which it is responsible to appreciate the opportunity, without however that the exercise of this power has the effect of depriving legal guarantees of constitutional requirements.
In this case, it should be noted that the circumstance that the legislator chose, by enacting the Act of 30 December 1987, to remove pre-trial detention for minors under the age of sixteen, could not, in principle, prohibit him from amending this provision for the future, in view of the evolution of juvenile delinquency. In this regard, it is up to it to reconcile the constitutional requirements, on the one hand, to the guarantee of individual freedoms and the presumption of innocence, but also, on the other hand, to the protection of security and public order. Thus, it can be brought to adapt the legislation in force.
However, the evolution of juvenile delinquency is characterized, as shown in the report of the Senate commission of inquiry on juvenile delinquency, by a very significant increase in the number of minors involved - increasing by 79% between 1992 and 2001 - by an increase in the number of minors committed in all acts of delinquency, on the part of offences committed by minors, by a rejuvenation of the age of minors involved - minors As an example of this latest development, the proportion of minors involved in public violence flights against individuals increased from 33.1 per cent in 1992 to 50.1 per cent in 2001.
These developments, which are particularly relevant to minors under the age of sixteen, warrant that the legislator again authorize, in certain exceptional circumstances, the use of pretrial detention in correctional matters for minors between the ages of thirteen and sixteen years.
In the meantime, the legislator has set aside this special safeguards: the duration of pre-trial detention is limited to fifteen days or a month if it is an offence punishable by ten years' imprisonment; it can only be renewed once; the detention must be carried out in a penitentiary institution which guarantees, on the one hand, complete isolation with major prisoners and, on the other hand, the presence in detention of educators under conditions defined by decree in the Council of State.
In addition, it should be noted that pre-trial detention for minors between thirteen and sixteen years of age can only take place if they voluntarily surrendered to the obligations of a judicial review imposing the placement in a closed educational centre, in accordance with the III of section 10-2 of the order of 2 February 1945 resulting from article 17 of the law referred to. However, the placement of these minors in a closed educational centre can only be pronounced in correctional matters against those who have previously been subjected to educational measures or have already been sentenced to educational punishment or punishment. In this way, pre-trial detention may only be ordered after the minor has ignored the obligations resulting from the placement in a closed educational centre, which could only be ordered for minors who have been examined for serious offences after the failure of previous judicial interventions. Minors between thirteen and sixteen years of age will only be subject to pretrial detention after the failure of the other measures.
With respect to Article 19:
A. - Section 19 is intended to establish a procedure for an early judgment, applicable to minors between the ages of sixteen and eighteen who are liable to sentences of more than or equal to three years' imprisonment in the event of flogging, to five years' imprisonment in the other cases, and to minors between the ages of thirteen and sixteen years' imprisonment.
This procedure can only be initiated if de facto investigations are not necessary and an investigation into the personality of the minor has been carried out for less than a year. The hearing must take place within ten days and one month after the notice of the facts filed by the public prosecutor. The minor shall be assisted by a lawyer upon such notification. It is tried by the Children's Court, which may refer to a next hearing within a period that may not exceed one month and decide an additional information.
Against these provisions, the requesting parliamentarians argue that this procedure of close-time judgment would be similar to the immediate appearance procedure and would deviate from the principles of the order of 2 February 1945. It would also be contrary to the requirements of articles 8 and 9 of the Declaration of Human and Citizen Rights because it would disproportionately affect the procedural guarantees of minors.
B. - The Constitutional Council can only deviate this argument.
It cannot be deduced from the constitutional requirements that impose special guarantees in the criminal law of minors that the criminal provisions applicable to minors must be in all respects distinct from those applicable to major persons. In other words, the similarity of certain provisions applicable to minors with provisions applicable to adults cannot, by itself and by itself alone, be seen as contrary to the Constitution.
In this case, it will be noted that the early trial procedure established by the law referred to in respect of minors over thirteen years of age is not the same as the immediate trial procedure applicable to adults and governed by the provisions of sections 395 to 396-7 of the Code of Criminal Procedure. The early judgment procedure does not have the same effect and has special guarantees adapted to the situation of minors.
This procedure does not allow the juvenile to be judged immediately or at the first useful hearing, as is the case in the immediate appearance, but the hearing must take place within a time limit that cannot be less than ten days or more than one month. This period ensures, inter alia, that the judge of the children and his assessors will have the time necessary for the prior study of the case. The lawyer is allowed to assist the minor from the beginning of this ten-day period.
The traditional specificity of the criminal law of minors, which requires that the personality of the minor be taken into account in a particular way, is respected, since the use of the early judgement procedure is only possible if sufficient personality information has already been collected and dates less than a year. This one-year period cannot be deemed excessive. In fact, it is not necessarily higher than the time limit that may take place in a normal procedure between the time the personality investigation is carried out and the court hearing for children, which most often intervenes within a period of six months to three years. In addition, the Public Prosecutor's Office must, pursuant to section 12 of the order of 2 February 1945, as amended by the 2nd of section 19 of the referred law, consult the competent youth judicial protection department, which may provide additional information on the personality of the minor before any requisition related to the judgment at the earliest opportunity. Finally, the failure or lack of personality information may lead the court seized to refer the matter to a later date by committing the juvenile judge to conduct the necessary investigations.
It is also important to emphasize that minors remain vigilant in the specialized jurisdiction of the Children ' s Court. As to pre-trial detention or judicial review measures that may be pronounced by the juvenile judge until the close-up appearance, they do not differ from the measures that may be pronounced with respect to minors in the course of an investigation.
Thus, the trial procedure established by article 19 of the law referred to above shall not be considered as an immediate procedure of ordinary law, disregarding the particularities of the criminal law of minors. This is, on the contrary, an appropriate procedure that does not waive the principles of criminal law of minors, and allows, where the conditions laid down by law are met, that a judgment may take place within a short period of time that guarantees the exercise of the rights of defence. It may also be pointed out that the intervention of a judgment at a short time appears particularly appropriate to the situation of minors, given the rapid evolution of their personality, the judicial sanction being truly understood and likely to inflex their behaviour only if it is sufficiently close to the facts.
With respect to Article 20:
A. - Article 20 provides for the attribution of jurisdiction to the local jurisdiction to try, instead of the police court, the contraventions of the first four classes committed by minors.
According to the appeals, these provisions would ignore Article 66 of the Constitution and the constitutional principle imposing a specificity of juvenile justice, because they would entrust to non-professional judges, who had not received adequate vocational training, criminal jurisdiction over minors.
B. - The grievance can only be dismissed.
It has already been responded to policy criticisms from requesting parliamentarians to the institution of the local jurisdiction.
With respect to the jurisdiction assigned to the judge of proximity by section 20 of the law referred to to to judge the contraventions of the first four classes committed by minors, it will be observed that the judgment of these contraventions is already assigned, by section 21 of the order of 2 February 1945, to the police court. Thus, in the current state of law, the judgment of these offences, which are the least serious of those punishable under the Criminal Code, is exercised by judges who are not specialized in the treatment of cases involving minors.
Article 20 of the law referred to has only the purpose of transferring from the police court to the local jurisdiction the judgment of the offences committed by the minors, in respect of the contraventions that are otherwise within the jurisdiction of the local judge. The specific requirements laid down for the police court by section 21 of the order of 2 February 1945, which take into account the particular situation of minors, shall apply to the judge of proximity under the law.
Under these conditions, it does not appear that the criticized provision is contrary to the constitutional requirements.
With respect to Article 23:
A. - Section 23 suspends the payment of family allowances for a minor when placed in a closed educational centre. However, the juvenile judge may decide to maintain the child when the family participates in the moral or material care of the child or in order to facilitate the child's return to the home.
The authors of the appeals invoke against these provisions articles 8 and 9 of the Declaration of Human and Citizen Rights which imply that no one is punishable only by his own act and state that they would constitute a disproportionate penalty. Senators, the authors of the second case, further argue that the disputed provisions would alter the legal nature of family allowances.
B. - This argument cannot be followed.
Indeed, the measure in question cannot be seen as a sanction. It analyses itself as an administrative measure that draws the consequences of placing a minor in a closed educational centre.
Section L. 521-2 of the Social Security Code provides that social benefits are paid to the person who assumes the effective and permanent charge of the minor and expressly provides, where the minor is subject to a judicial placement, the payment of family benefits to the child welfare service or the public treasury. Similarly, section 40 of the order of 2 February 1945 provides, in the event of a temporary or final placement of a minor, that the family allowances, increases and assistance allowances to which the minor opens up are paid directly by the debtor agency to the person or institution that has the responsibility of the minor during the period of the placement.
In this case, section 23 of the Act referred to is limited to a similar rule in the event of placement in a closed educational centre. It is stated that the suspension can only cover the only part represented by the juvenile offender. The duration of the suspension does not exceed the duration of the placement. Finally, the legislator has provided for the possibility for the judge to maintain the allowances when the family participates in the care of the minor or to facilitate the return of the child to his home. This mechanism allows the maintenance of family allowances to be an incentive for the family to contribute to the reintegration of the minor and to the amendment of his behaviour.
IV. - On section 37 of the law
A. - Article 37 is intended to amend certain provisions of the Code of Criminal Procedure relating to pre-trial detention. In particular, it amends section 137-4 of the Code of Criminal Procedure by providing that the investigating judge who considers that a detention required by the prosecutor of the Republic is not justified is required to rule without delay by a reasoned order. It further amends certain provisions of the Code of Criminal Procedure relating to the extension of pretrial detention.
It is supported against these provisions that, returning to certain provisions of Act No. 2000-516 of 15 June 2000, they would have the effect of depriving legal guarantees of the constitutional requirements arising from Article 9 of the Declaration of Human and Citizen Rights.
B. The Constitutional Council cannot endorse this argument.
The provisions in question, which make some adjustments to the rules relating to pre-trial detention, do not affect the constitutional principle of the presumption of innocence, guaranteed by article 9 of the Declaration of Human and Citizen Rights. This principle does not exclude that safety measures necessary for the protection of victims and the preservation of the interests of society are taken, as long as they are provided by law and proportionate. It is up to the legislator to make all the necessary amendments to the applicable rules that he considers necessary for the conciliation of the various general interests of which he is responsible, provided that he does not deprive legal guarantees of the constitutional requirements.
However, in this matter, it may be considered as guarantees that pre-trial detention measures must be decided by a magistrate, after an adversarial procedure. On the other hand, the determination of the thresholds and conditions of pretrial detention does not jeopardize the existence of these guarantees and may be amended by the legislator.
In this case, the bill referred to is limited to making some technical amendments to the provisions adopted by the Act of 15 June 2000. In addition, it may be noted that the rules relating to pre-trial detention have changed on numerous occasions during the recent period, as the criteria for the award of such a measure have been amended no less than five times over the last ten years (Acts of 4 January 1993, 24 August 1993, 30 December 1996, 15 June 2000 and 4 March 2002). These successive amendments, which testify to the difficulty for the legislator to achieve a lasting balance in this matter, cannot be seen as impairing the principles of constitutional value.
The requesting parliamentarians contest two of the measures decided by section 37 of the bill referred to.
In the first place, criticisms addressed to the new drafting of Article 137-4 of the Code of Criminal Procedure, it cannot be seriously argued that the duty of the investigating judge to justify the order by which he considers, contrary to the requisitions of the Public Prosecutor's Office, that a pre-trial detention is not justified, would deprive a constitutional requirement of legal guarantees.
The criticized provision does not question the principle set out in section 137 of the Code of Criminal Procedure that the person being examined, presumed innocent, remains free. It merely provides for the reasons for the orders by which the investigating judge considers that pretrial detention is not justified. It will be observed that this applies the common rule of law that judicial decisions are motivated.
If, secondly, the reduction of the thresholds for pre-trial detention is the provision of 3rd of Article 37 which repeals the fourth paragraph of Article 143-1 of the Code of Criminal Procedure that pre-trial detention based on one of the offences punishable by Book III of the Criminal Code, relating to property offences, may in principle be ordered or extended only if the offence is less punishable.
It should be noted that this provision was already subject to certain exceptions. One of them had been brought by the law of 15 June 2000 itself, to take into account the criminal past of the person prosecuted. Another was laid by the Act of 4 March 2002 to facilitate the pre-trial detention of the person being examined with a background. These two exceptions related to the personality of the prosecuted person raised the possible detention threshold for all other correctional offences, i.e. three years.
Ultimately, the legislator preferred to simplify the rules of pre-trial detention by setting a single three-year threshold for all offences. This simplification is indeed a matter of coherence, since the distinction between the offences contained in Book III of the Criminal Code and others could lead to paradoxical results.
V. - On section 38 of the law
A. - Section 38 provides for a Referee Detention Procedure that allows the Attorney of the Republic, where an order for the release of a person placed in pre-trial detention is made contrary to his requisitions by the Justice of Freedoms and Detention or the examining magistrate, to appeal to the first president of the Court of Appeal, within four hours, parallel to the appeal lodged before the Trial Chamber. The release order may not be enforced until the decision of the first president of the court of appeal or the decision of the board of inquiry has been reached. The first president, or the magistrate he delegates, shall decide on the second working day after the application. Otherwise, the detained person is released unless detained for another cause.
It is a grievance to these provisions to ignore Article 66 of the Constitution which would imply that it cannot be obstructed by the decision of a magistrate of the siege to release a detained person, even pending the decision of the appellate judge, to infringe Article 9 of the Declaration of Human and Citizen Rights and to break the equality of arms between the parties to the criminal trial.
B. - These grievances must be dismissed.
By Decision No. 97-389 DC of 22 April 1997, the Constitutional Council has, in principle, deduced from Article 66 of the Constitution that when a magistrate of the siege has, in the fullness of the powers conferred on him by this article of the Constitution, decided that a person must be released, he cannot be hindered by this decision, if any, pending the decision of the appellate judge. However, he acknowledged that this principle could be made aware of certain developments and, in this case, admitted compliance with the Constitution of a procedure allowing the prosecutor of the Republic to request, under certain conditions, the first president of the Court of Appeal to suspend the appeal against an order refusing to extend the retention of an irregular alien.
The Referee Detention Procedure established by section 38 of the Act referred to presents similar characters to those of the procedure that was the subject of the above-mentioned decision of 22 April 1997. Like her, she can only be declared in accordance with the Constitution.
As the procedure before the Constitutional Council in 1997, the referee-detention responds to compelling requirements that the legislator could legitimately consider. It is, in fact, to avoid that, during the time necessary for the examination of the appeal, the irreparable is accomplished and that what the pre-trial detention was precisely for the purpose of avoiding - disappearance of the person concerned, reiteration of the offence - is irremediably committed.
The Referee Detention is formed on the initiative of a prosecutor's magistrate who, as set out by the Constitutional Council in Decision No. 93-323 DC of 5 August 1993 or in the above-mentioned decision of 22 April 1997, belongs, like the magistrates of the siege, to the judicial guardianship authority of individual freedom under the terms of Article 66 of the Constitution. An integral part of the criminal jurisdiction, it plays a special role in the conduct of criminal proceedings in accordance with the provisions of the law, particularly with regard to the control of investigations, the exercise of prosecutions and the enforcement of criminal decisions. In the criminal proceedings, he represents society and the general interest and ensures that the law is respected. In these circumstances, it is conceivable that the legislator can recognize the initiative of a procedure such as the case-back.
The law has also, in addition, strictly limited and supervised the implementation of the Referendum. This remedy is indeed exercised by a prosecutor; it must be trained within four hours and be accompanied by written and motivated requisitions; the rights of the defence are guaranteed in that the person being examined, or his lawyer, may make written submissions; the first president of the court of appeal, or the magistrate replacing him, has two working days to suspend the effects of the order of release; in the absence of a decision within that period, the person prosecuted shall be immediately released; if the first president orders the suspension of the effects of the order of release, this suspension only produces effect until the board of instruction decides on the appeal formed by the prosecutor's office; the personal appearance of the person prosecuted before the board of instruction is of law; the board of the instruction has a period of ten days to decide on the appeal, for failing which the person is released from office if it is not prosecuted for another cause.
In these circumstances, it appears that the procedure for referee-detention, which by itself does not affect the principle of the presumption of innocence guaranteed by Article 9 of the Declaration of Human and Citizen Rights, meets the constitutional requirements.
However, it should be noted that the reference to detention does not concern persons whom a judge of the siege would have refused to be detained, but persons in respect of whom a judicial detention is already available. The scope of this new procedure is indeed restricted only to cases in which the prosecutor appeals a decision to release during the period of pretrial detention or its extension. Referral of detention may not be used in the event of an appeal of a decision to refuse or not extend the pretrial detention. The reference to detention is therefore likely to concern only persons who have already been placed in pre-trial detention by a reasoned decision of a judge of freedoms and detention, who, at the same time, is seized by a reasoned order of an investigating judge in accordance with Article 145 of the Code of Criminal Procedure.
VI. - On section 42 of the law
A. - Article 42 introduces to the Code of Criminal Procedure articles 495, 495-1, 495-2, 495-3, 495-4, 495-5 and 495-6 establishing a simplified procedure for offences under the Road Code.
The appellants argue that these provisions would ignore the principle of equality before justice.
B. - This argument cannot be accepted by the Constitutional Council.
Indeed, it cannot be considered that the principle laid down in Decision No. 75-56 DC of 23 July 1975, which impedes that citizens in similar conditions and prosecuted for the same offences are tried by courts composed under different rules, imposes a uniformity of the criminal procedure prohibiting legislators from considering various possibilities of criminal response, if applicable applicable to the same offences.
In this regard, it should be emphasized that it is the responsibility of the Public Prosecutor's Office to assess on a case-by-case basis the follow-up to the offences brought to its attention. It may therefore choose not to put public action in motion, with or without an alternative measure, under articles 40 et seq. of the Code of Criminal Procedure. If he decides to prosecute, the law opens his choice between different procedures - for example, to seize, or not, an examining magistrate - and between various forms of referral of the judgment court - direct citation, appearance by minutes, immediate appearance -. It can be seen, moreover, that the criticized provision is close, in its principles, to the criminal order procedure existing in respect of contravention since Act No. 72-5 of 3 January 1972 and amended on several occasions (see, in particular, Laws No. 92-1336 of 16 December 1992 and No. 93-913 of 19 July 1993).
Indeed, the existence of these differential procedures was never questioned by the Constitutional Council, which, on the contrary, recognized that it was lawful for the legislator to provide different procedural rules according to the facts, situations and persons to which they apply, provided that these differences do not discriminate unjustified and that equal guarantees are guaranteed to law enforcement officials, particularly in respect of the principle of rights of the 2nd of September. The Constitutional Council had then admitted compliance with the Constitution of provisions relating to the immediate procedure, which is one of the applicable procedures. It may also be noted that a criminal composition procedure was instituted by Act No. 99-515 of 23 June 1999, in accordance with the principles established by Decision No. 95-360 DC of 2 February 1995.
In this case, the objective of the legislator when it has adopted the disputed device, whose application is limited to certain offences under the road code, is to improve the general functioning of justice by simplifying the treatment of the offences in question, which are characterized by their number and, most often, by a lack of dispute over the facts. The usual trial procedures appear, under these conditions, inappropriate to this part of the repressive litigation. Their implementation results in significant disparities in treatment across the territory. They are often misunderstood by the defendants who, in the majority of cases, do not contest the facts committed and especially wish that a prompt decision be made to their place. In this regard, the procedure established will allow for easier and faster treatment of these offences.
The legislator has specifically governed the use of this procedure. It is applicable only in respect of strictly defined offences; the facts must be established by the investigation; there must be personality information on the person prosecuted; the facts shall not have given rise on the part of the victim to a claim for damages or restitution or to a direct summons of the defendant. The law also imposed special guarantees: the decision is rendered by a judge of the seat who must motivate it, the only penalties incurred are the fine and a supplementary sentence, the defendant has a 45-day time limit to make an opposition, in which case the case will be the subject of an adversarial and public debate before the correctional court.
This procedure cannot be found to be contrary to the constitutional principle of equality. It also relies on the decision of a magistrate of the seat and appears respectful of the rights of defence. Its implementation is surrounded by sufficient guarantees. Its conformity with the Constitution cannot therefore be questioned.
It may also be noted that the European Court of Human Rights has found that the sanction mechanism under German law, particularly in relation to road offences, which presents similar features to the mechanism adopted by the law referred to, did not misunderstand the terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms (CEDH 21 February 1984, Ozturk v. Germany), as soon as the person concerned has taken a decision
VII. - On section 49 of the law
A. - Section 49 is intended to permit the placement of a person under electronic supervision, with the consent of the person under judicial review. The implementation of the technical mechanism for remote control may be entrusted to a person of private law authorized under conditions established by decree in the Council of State.
According to the requesting parliamentarians, these provisions would result in excessive infringement of individual freedom, privacy, presumption of innocence, guaranteed by articles 2, 4, 8 and 9 of the Declaration of Human and Citizen Rights. They further argue that the application of this device to minors would be likely to affect the dignity of the child. Finally, they note that the possibility of entrusting a private person with the implementation of the technical mechanism would constitute a form of "privacy" of the criminal procedure incompatible with the principles of our right.
B. These means can only be removed.
1. Firstly, it is important to note that the Code of Criminal Procedure provides that a person under review may be subject to judicial review, because of the need for investigation or as a security measure, and that it may also, on an exceptional basis, be held in pretrial detention when the judicial review is insufficient.
By nature, these measures of judicial review and pre-trial detention have the effect of restricting individual freedom. Thus, some of the measures that can now be pronounced within the framework of judicial review take restrictions on the freedom to go and come: for example, the prohibition of leaving a specified territory, if any, in a very restrictive way, that of abstaining from his home or residence, that of going to certain places (see 1°, 2° and 3° of Article 138 of the Code of Criminal Procedure). The attainment of individual freedom resulting from judicial review or pretrial detention must be necessary and proportionate to the intended purpose. It may be noted that such measures do not affect the presumption of innocence enjoyed by persons prosecuted.
The placement under electronic supervision in the context of judicial review, authorized by the law referred to, must avoid, under certain circumstances, the superior constraints of pre-trial detention. If it does not result in a change in the nature of the obligations imposed under the judicial review, the use of the specific monitoring techniques it involves makes it possible to better ensure their compliance. Therefore, it can lead to a sufficient assessment by the competent judges of the guarantees provided by this method of judicial review, which would prevent the use of pre-trial detention, which in turn carries material deprivation of liberty.
Finally, it will be recalled that, given the specificity of this technical process, it can only be implemented with the express agreement of the person being prosecuted in the presence of his lawyer.
The measure adopted by section 49 of the above-mentioned law cannot thus be considered as excessively harming individual freedom, privacy and the presumption of innocence.
2. The applicability of the system to certain minors could no longer be found to be contrary to the Constitution.
The applicability of these provisions in principle to minors over thirteen years of age is the result of section 10-2 of the order of 2 February 1945 derived from section 17 of the law referred to. Under the provisions of article I, minors between 13 and 18 years of age may be placed under judicial supervision under the conditions provided for in the Code of Criminal Procedure, subject to special provisions.
Under these special provisions, it must be emphasized that minors aged 13 to 16 years who are subject to correctional proceedings may only be subject to the conditions of placement in a closed educational centre under the judicial review (see section III of section 10-2 of the order of February 2, 1945, pursuant to section 17 of the Act referred to above). It is therefore excluded that judicial review takes the form, in correctional matters, of electronic supervision for a minor between thirteen and sixteen years of age.
In other cases - that is, for minors over sixteen years of age or minors between thirteen and sixteen years of age in criminal matters - it must be noted that the implementation of the technically very discreet device does not affect the dignity of the person being prosecuted.
3. By providing, finally, that the implementation of the technical mechanism allowing remote control can be entrusted to a person of private law authorized under conditions established by decree in the Council of State, the legislator has not misunderstood any rule of constitutional value.
The sole purpose of the provision in question is to allow, where appropriate, to delegate to private companies tasks of an exclusively technical nature, which they will perform under the control of the public power.
Ultimately, the Government considers that none of the means raised by the authors of the appeals is likely to justify the censorship of the provisions referred to in the Constitutional Council.
