Key Benefits:
LOI RELATIVE À LA RÉTENTION DE SUGRETÉ ET À LA DÉCLARATION D'IRRESPONSABILITY POUR CAUSE MENTAL
The Constitutional Council was seized under the conditions provided for in theArticle 61, second paragraph, of the Constitution, of the law relating to the retention of security and the declaration of irresponsibility due to mental disorder, on February 11, 2008, by Mr. Jean-Pierre Bel, Ms. Jacqueline Alquier, Michèle André, MM. Bernard Angels, David Ass Claire, Bertrand Auban, Robert Badinter, Ms. Maryse Bergé-Lavigne, MM.Pierre Yannick Bodin, Didier Bouene, Ms. Jean-Louis Carrère, Bernard Cazeau, Mme Monique Cerisier-ben Guiga, MM. Pierre-Yves Collombat, Roland Courteau, Yves Dauge, Jean-Pierre Demerliat, Mme Christiane Demontès, MM. Jean Desessard, Claude Domeizel, Michel Dreyfus-Schmidt, Mme Josette Durrieu, MM. Bernard Dussaut, Jean-Claude Frécon, Bernard Frimat, Charles Gautier, Jean-Pierre Godefroy, Claude Haut, Mmes Odette Herviaux, Annie Jarraud-Vergnolle, M. Charles Josselin, Mme Bariza Khiari, MM. Yves Krattinger, Serge Lagauche, Mme Raymonde Le Texier
Jean-Marc Ayrault, Mme Sylvie Andrieux, MM. Jean-Paul Bacquet, Dominique Baert, Jean-Pierre Balligand, Gérard Bapt, Claude Bartolone, Jacques Bascou, Christian Bataille, Mme Delphine Batho, M. Jean-Louis Bianco, Mme Gisèle Biémouret, MM. Serge Blisko Jean-Paul Dupré, Yves Durand, Mme Odette Duriez, MM Philippe Duron, Olivier Dussopt, Christian Eckert, Henri Emmanuelli, Mme Corinne Erhel, MM. Ms. Jean-Claude, Ms. Jean-Louis Gagoux Christian Paul, Jean-Luc Pérat, Jean-Claude Pérez, Mme Marie-Françoise Pérol-Dumont, M. Philippe Plisson, Mme Catherine Quéré, MM. Jean-Jack Queyranne, Dominique Raimbourg, Mme Marie-Line Reynaud, MM. Alain Rodet, Bernard Roman, René Rouquet, Alain Rousset, Patrick Roy, Michel Sainte-Marie, Michel Sapin, Mme Odile Saugues, Jean-Jacques Urvoas, Daniel Vaillant, Jacques Valax, André Vallini, Manuel Valls, Michel Vauzelle, Michel Vergnier, André Vézinhet, Alain Vidalies, Jean-Michel Villaumé, Philippe Vuilque, Mme Chantal Berthelot, MM Gérard Charasse, René Dosière, Paul Giacobbi, Christian Hugo, Serge Letdrichiny, Albert Likuvalu, Ms.
The Constitutional Council,
Considering the Constitution;
See?Order No. 58-1067 of 7 November 1958 amended Act on the Constitutional Council
Considering the criminal code;
Considering the Code of Criminal Procedure;
Considering the Public Health Code;
Vu la Act No. 78-17 of 6 January 1978 modified on computers, files and freedoms;
In view of the Government ' s observations, recorded on 14 February 2008;
The rapporteur was heard;
1. Considering that the members of Parliament and the requesting senators refer to the Constitutional Council the law relating to the retention of security and the declaration of irresponsibility because of mental disorder; that they contest, inter alia, the conformity to the Constitution of its articles 1st, 3 and 13; that members also criticize the provisions of its article 12, and those of its article 4;
On security retention and security surveillance:
2. Considering that the I of Article 1 of the law referred shall, in Title XIX of Book IV of the Code of Criminal Procedure entitled: "From the procedure applicable to the offences of a sexual nature and the protection of the minor victims", a chapter III entitled: "From security detention and security surveillance" consisting of Articles 706-53-13 to 706-53-21 of the Code of Criminal Procedure; that these articles provide the conditions under which a person may
3. Considering that under the fourth paragraph of Article 706-53-13 of the Code of Criminal Procedure: "The detention of the person concerned shall be in the place of the socio-medical-judicial security centre in which it is proposed, on a permanent basis, a medical, social and psychological care intended to allow the end of that measure"; that it may be pronounced only if the court of siege that has condemned the ― To this end, the commission requests the placement of the person, for a period of at least six weeks, in a specialized service responsible for the observation of detained persons for the purposes of a multidisciplinary assessment of danger with medical expertise carried out by two experts"; that the commission may only propose the retention of security, by a reasoned opinion, if it considers that these conditions are met;
4. Considering that, under articles 723-37, 723-38 and 763-8 of the Code of Criminal Procedure, as a result of the law referred to, the placement of a person in security surveillance is to extend, beyond the term set for a measure of judicial supervision or a socio-judicial monitoring, any or part of the obligations to which that person is bound under any of these measures,
5. Considering that the I of Article 13 of the deferred law organizes the conditions under which certain persons performing, on the date of September 1, 2008, a penalty of criminal detention may, on the one hand, be subject, in the context of judicial supervision, of a socio-judicial monitoring or of a security surveillance, to an obligation of summons to domicile under the regime of placement under mobile electronic surveillance and, on the other hand,
6. Considering that, according to the appellants, as soon as it is ordered by a court following a criminal procedure, in order to extend, beyond the execution of the sentence initially pronounced, the deprivation of liberty of persons who have committed particularly serious crimes, the retention of security constitutes a supplement of the penalty having the character of a punitive sanction; that it would ignore all the constitutional principles resulting from articles 8 and that, to the extent that "there are alternatives such as the socio-judicial monitoring instituted by the law of 17 June 1998 or that of the judicial supervision instituted by the law of 12 December 2005", the retention of security would violate the principle of necessity of punishment; that the deprivation of liberty imposed on a person who has already executed his or her sentence, on the basis of recidivism that it could possibly commit, would violate both the right to presumption that, ultimately, its application to persons convicted of acts committed prior to the promulgation of the law would undermine the principle of non-retroactivity of the more severe criminal law;
7. Considering that the requesting members of Parliament further argue that, even if the retention of security was to be considered a non-punitive measure, it would contravene the rights of articles 4 and 9 of the Declaration of 1789 which prohibits the unnecessary rigor in respect of restrictions on individual freedom, personal freedom or respect for privacy; that the principle of respect for the presumption of innocence would prohibit a person being deprived of his or her liberty in the absence of established guilt, regardless of the procedural guarantees surrounding the implementation of that device;
With regard to grievances arising from the lack of knowledge of section 8 of the 1789 Declaration:
8. Considering that, under Article 8 of the Declaration of 1789: "The law must establish only strictly and obviously necessary penalties and no one shall be punished only by virtue of a law established and promulgated prior to the offence and legally applied"; that it follows that these principles apply only to penalties and sanctions that have the character of a punishment;
9. Considering that, if, for persons convicted after the coming into force of the law, the detention of security may be ordered only if the court of siege has expressly provided, in its decision of conviction, the review, at the end of its sentence, of the situation of the person convicted for the eventuality of such a measure, the decision of the court does not consist of deciding that measure, but to make it possible that it is implemented only after the execution of the sentence by the convicted person; that it is intended to prevent and prevent recidivism by persons suffering from a serious personality disorder; that thus, the retention of security is neither a penalty, nor a penalty having the character of a punishment; that security surveillance is not more; that, therefore, the grievances arising from the lack of knowledge of Article 8 of the 1789 Declaration are inoperative;
10. Considering, however, that, in view of its custodial nature, the duration of such deprivation, its unrestricted renewable nature and the fact that it is pronounced after a sentence by a court, it cannot be applied to persons convicted before the publication of the law or subject to a conviction after that date for acts committed earlier; that, therefore, should be declared contrary to the Constitution, paragraphs 2 to 7 of Article 13 of the law referred to, Article II and, consequently, Article IV thereof;
With regard to the grievance arising from the breach of Articles 9 of the Declaration of 1789 and 66 of the Constitution:
11. Considering that pursuant to Article 9 of the 1789 Declaration: "Every man being presumed innocent until he has been convicted, if he is deemed indispensable to arrest him, any rigor that would not be necessary to ensure his person must be severely punished by law"; that Article 66 of the Constitution states that: "No one may be arbitrarily detained. – The judicial authority, guardian of individual freedom, ensures that this principle is respected under the conditions laid down by law.”
12. Considering that security retention and security surveillance are not repressive measures; that, therefore, the grievance drawn from the violation of the presumption of innocence is inoperative;
13. Considering that the retention of security and the supervision of security must respect the principle, resulting from articles 9 of the Declaration of 1789 and 66 of the Constitution, that individual freedom cannot be hindered by a rigor that is not necessary; that it is the duty of the legislator to ensure the conciliation between, on the one hand, the prevention of infringements of public order necessary to safeguard the rights and principles of constitutional value and, on the other,
As for the adequacy:
14. Considering that, under the fourth paragraph of Article 706-53-13 of the Code of Criminal Procedure, the placement of the person in a socio-medical-judicial security centre is intended to allow, through a medical, social and psychological care that is offered to him on a permanent basis, the end of that measure; that, in fact, the retention of security is reserved for persons who have a particular danger characterised by a very high probability of recidivism because they suffer from a serious personality disorder; that, in view of the total deprivation of liberty resulting from retention, the definition of the scope of this measure must be in line with the existence of such personality disorder;
15. Considering, in the first place, that pursuant to Article 706-53-13 of the Code of Criminal Procedure, may be subject to a security detention measure only those persons who have been "extremely sentenced to imprisonment of a term equal to or greater than fifteen years for the crimes, committed on a minor victim, murder or murder, torture or acts of barbarity, rape, abduction
16. Considering, in the second place, that under the first two paragraphs of Article 706-53-14 of the Code of Criminal Procedure: "The situation of persons referred to in Article 706-53-13 shall be examined, at least one year before the date for their release, by the multidisciplinary commission of the security measures provided for in Article 763-10, in order to assess their danger. ― To this end, the commission asks for the placement of the person, for a period of at least six weeks, in a specialized service responsible for the observation of detained persons for the purposes of a multidisciplinary assessment of danger with medical expertise carried out by two experts"; that these provisions are appropriate guarantees to reserve the security of only persons particularly dangerous because they suffer from a serious personality disorder;
The need:
17. Considering, in the first place, that, in view of the seriousness of the violation it has to do with individual freedom, the retention of security could only be a necessary step if no less offensive measure to that freedom could sufficiently prevent the commission of acts seriously impairing the integrity of persons;
18. Considering that pursuant to articles 706-53-13 and 706-53-14 of the Code of Criminal Procedure, the retention of security may only be decided "on an exceptional basis" with respect to a person sentenced to a lengthy sentence for acts of particular gravity and if the court of medical attendance has expressly provided for in its decision of conviction that the person may be subject to a review of his or her situation at the end of his or her sentence that pursuant to Article 706-53-14 of the Code of Criminal Procedure, this measure may be ordered only if the multidisciplinary commission of security measures, which proposes it, and the regional jurisdiction of security detention, which determines it, consider that "the obligations resulting from the registration in the automated national judicial file of perpetrators of sexual or violent offences, as well as the obligations resulting from an injunction of care or
19. Considering, in the second place, that the maintenance of a sentenced person, beyond the expiration time of his sentence, in a socio-medical-judicial security centre so that he/she receives medical, social and psychological care must be of a necessary rigour; that is so when this convicted person was able, during the execution of his sentence, to receive care or care to mitigate his or her danger, but that they were unable to produce sufficient results, either because of the state of the person concerned or because of his or her refusal to care;
20. Considering that the III of Article 1 of the referred law inserts in the Code of Criminal Procedure an article 717-1 A that provides that, in the year following its final conviction, the person convicted under the aforementioned conditions is placed, for a period of at least six weeks, in a specialized service to determine the modalities of social and health care and to define a "course of execution of the individualized penalty" including, if necessary, psychiatric care; that the V of that same article completes article 717-1 of the same code, by a paragraph In the light of this assessment, the judge of the application of the penalties proposes to him, if any, to follow a treatment in a specialized penitentiary institution; that under section 706-53-14: "The situation of the persons referred to in section 706-53-13 is examined, at least one year before the date for their release, by the multidisciplinary commission of security measures ... ― To this end, the Commission requests the placement of the person, for a period of not less than six weeks, in a specialized service responsible for the observation of detained persons for the purposes of a multidisciplinary assessment of danger with medical expertise carried out by two experts."
21. Considering that compliance with these provisions ensures that the retention of security could not be avoided by care and care during the execution of the sentence; that it will, therefore, belong to the regional jurisdiction of the security detention to verify that the sentenced person has been in a position to benefit, during the execution of his sentence, from the care and care appropriate to the personality disorder of which he suffers; that, subject to this reservation, the security detention applicable to persons convicted after the publication of the law referred to is necessary for the purpose pursued;
The proportionality:
22. Considering that retention of security can only be pronounced on the favourable opinion of the multidisciplinary commission of security measures, by a court composed of three judges of the Court of Appeal; that it is decided after an adversarial debate and, if the convict so requests, public; that the convict is assisted by a lawyer chosen by him or, failing that, committed ex officio; that, after a period of three months after the security detention decision has become final, the person in custody may request that the security detention be terminated; that, in addition, there shall be an ex officio termination if the regional jurisdiction of security detention has not ruled on the application within three months; that the decisions of that jurisdiction may be contested before the National Court of Security Detention whose decisions may be appealed in cassation; that, in the end, pursuant to Article 706-53-18 of the Code of Criminal Procedure: "The Regional Court of Security Detention shall, on its own motion, order that it be immediately terminated from the security detention provided that the conditions provided for ... are no longer met"; that it is clear from these provisions that the judicial authority retains the opportunity to interrupt, at any time, the extension of detention, its own initiative or the application of that, therefore, the legislator has set out the procedure for placing a security right in order to ensure that it is reconciled between, on the one hand, the individual liberty of which Article 66 of the Constitution entrusts protection to the judicial authority and, on the other hand, the aim of preventing the recidivism pursued;
23. Considering that, pursuant to Article 706-53-16 of the Code of Criminal Procedure, the decision of retention of security is valid for a period of one year but may be renewed, after favourable opinion of the multidisciplinary commission of security measures, in accordance with the terms provided for in Article 706-53-15 and for the same period, provided that the conditions laid down in Article 706-53-14 are met; that pursuant to the penultimate paragraph of Article 723-37 of the Code of Criminal Procedure, the placement in security surveillance may also be renewed for the same period; that the number of renewals is not limited; that it appears from these provisions that the renewal of the measure may only be decided if, on the date of the renewal, and, as the case may be, of the multidisciplinary assessment or of the medical expertise carried out that, so that the measure retains its strictly necessary character, the legislator has heard that it is regularly taken into account the evolution of the person and the fact that it submits to it on a sustainable basis; that, therefore, the grievance derived from the disproportionate renewal of the measure without limitation of duration must be dismissed;
Criminal irresponsibility due to mental disorder:
24. Considering that Article 3 of the referred law inserts, in the Code of Criminal Procedure, a Title XXVIII entitled: "From criminal proceedings and decisions of criminal irresponsibility for cause of mental disorder" consisting of Articles 706-119 to 706-140 of the Code of Criminal Procedure; that these articles are divided into three chapters, the first being relating to the provisions applicable to the investigating judge and the Trial Chamber,
With respect to Article 3:
25. Considering that the appellants are grieving the provisions of Article 3 to ignore the rights of the defence and the right to a fair trial; that they criticize, in this regard, the fact that the board of inquiry, when it is seized, may declare that there are sufficient charges against a person to have committed the facts that are charged to him and that it is criminally irresponsible; that they denounce in this procedure a confusion of the functions of instruction and judgment which affect the presumption of innocence of the person concerned; that, in their view, a violation of the rights of the defence of potential co-sponsors would be correlated and, in particular, respect for their presumption of innocence; that they denounce, at last, as contrary to the principle of necessity of offences and penalties, the creation of an offence punishable by lack of knowledge of a security measure by a person declared criminally inadmissible;
26. Considering, on the one hand, that it is the result of Article 706-125 of the Code of Criminal Procedure that, when, at the end of the hearing on criminal irresponsibility due to mental disorder, the board of inquiry considers that the charges are sufficient against the person under review and that the person under review is under Article 122-1 of the Criminal Code, the board is not competent to declare that the person has committed the facts that are committed to him or is that, therefore, the grievances invoked lack in fact;
27. Considering, on the other hand, that the provisions of Article 706-139 of the Code of Criminal Procedure, which punish the lack of awareness of the security measures ordered against a person declared criminally irresponsible, do not derogate from the provisions of Article 122-1 of the Criminal Code under which the criminal irresponsible irresponsibility of a person because of his or her mental or mental state is at the moment that, therefore, the offence provided for in section 706-139 will only apply in respect of persons who, at the time of failing to know the obligations resulting from a security measure, were criminally responsible for their acts; that, therefore, the grievance arising from the breach of the principle of necessity of offences and penalties must be dismissed;
With respect to Article 4:
28. Considering that the VIII of Article 4 of the referred law, which supplements Article 768 of the Code of Criminal Procedure, provides for the registration in the automated national criminal record of the decisions of criminal irresponsibility pronounced on the basis of mental disorder; that its X, which supplements Article 775 of the same Code, provides that these decisions are not included in Bulletin 2 of the criminal record, unless the security measures provided for 1 by the new article
29. Considering that, according to the complainants, the above-mentioned provisions, which would contravene the principles of necessity and proportionality set forth by the Act of 6 January 1978 referred to abovewould undermine the legal guarantees of the right to privacy;
30. Considering that it is the responsibility of the legislator to ensure the conciliation between respect for privacy and other constitutional requirements, in particular, related to the safeguarding of public order;
31. Considering that the decision to declare criminal irresponsibility on the basis of mental disorder is not a sanction; where no security measures provided for in Article 706-136 of the Code of Criminal Procedure have been imposed, such information may not be legally necessary for the assessment of the criminal liability of the person possibly prosecuted in subsequent proceedings; that, therefore, in the light of the purposes of the criminal record, it cannot, without prejudice to the protection of privacy implied by Article 2 of the Declaration of 1789, be referred to in Bulletin No. 1 of the criminal record only when the security measures provided for in new Article 706-136 of the Code of Criminal Procedure have been pronounced and as long as these prohibitions have not ceased their effects; that, subject to this reservation, these provisions are not contrary to the Constitution;
On parole of persons sentenced to life imprisonment:
32. Considering that Article 12 of the referred law supplements Article 729 of the Code of Criminal Procedure by a paragraph which states that: "The person sentenced to life imprisonment shall be entitled to parole only after favourable notice of the multidisciplinary commission of security measures under the conditions provided for in the second paragraph of Article 706-53-14"; that, according to the requesting members, this provision undermines the constitutional principle of independence of the courts;
33. Considering that under Article 66 of the Constitution: "No one may be arbitrarily detained. ― The judicial authority, guardian of individual freedom, ensures respect for this principle under the conditions laid down in the law"; that Article 16 of the Declaration of 1789 and Article 64 of the Constitution guarantee the independence of the courts and the specific character of their functions, on which neither the legislator, nor the Government, nor any administrative authority;
34. Considering that by subordinating to the favourable opinion of an administrative commission the power of the court of enforcement of sentences to grant parole, the legislator has misunderstood both the principle of separation of powers and the principle of independence of the judicial authority; that it follows that it is necessary to declare contrary to the Constitution the word "favourable" to section 12 of the referred law;
35. Considering that there is, for the Constitutional Council, no matter of conformity with the Constitution,
Decides:
The following provisions of the law on retention of security and declaration of irresponsibility for mental disorder are declared contrary to the Constitution:
- in Article 12, the word "favourable";
- in Article 13, paragraphs 2 to 7 of I, II and, accordingly, IV.
Subject to the reservations set out in paragraphs 21 and 31, articles 1, 3 and 4 and the surplus of articles 12 and 13 of the law relating to the retention of security and the declaration of irresponsibility because of mental disorder is declared in conformity with the Constitution.
This decision will be published in the Official Journal of the French Republic.
Deliberated by the Constitutional Council in its meeting on 21 February 2008, where were: Mr. Jean-Louis Debré, President, Mr. Guy Canivet, Renaud Denoix de Saint Marc and Olivier Dutheillet de Lamothe, Ms. Jacqueline de Guillenchmidt, Mr. Jean-Louis Pezant, Ms. Dominique Schnapper and Mr. Pierre Steinmetz.
The president,
Jean-Louis Debré
