JORF n ° 0294 December 19, 2010 page 22375 text no. 51 Decision No. 2010-81 on December 17, 2010 QPC NOR: CSCX1032706S ELI: not available (Mr. BOUBAKAR B.)
The Constitutional Council has received October 8, 2010, by the Court of cassation (Criminal Chamber, judgment No. 5444 28 September 2010), under the conditions provided for in article 61-1 of the Constitution, a question priority of constitutionality, raised by Mr. Boubakar B., on the conformity of article 207 of the code of criminal procedure on the rights and freedoms that the Constitution guarantees.
The Constitutional Council, having regard to the Constitution;
Saw the Ordinance No. 58 - 1067 November 7, 1958 amended organic law on the Constitutional Council.
Having regard to the code of criminal procedure;
Having regard to regulation of February 4, 2010 on the procedure followed before the Constitutional Council for the priority issues of constitutionality;
Having regard to the observations produced for the applicant by Me Eric Plouvier, lawyer at the bar of Paris, recorded October 27, 2010.
Having regard to the observations produced by the Prime Minister recorded November 2, 2010;
Having regard to the parts produced and attached to the folder;
Me Plouvier for the applicant and Mr Thierry - Xavier Girardot, appointed by the Prime Minister, having been heard at the public hearing on December 7, 2010;
The rapporteur having been heard;
1. whereas pursuant to article 207 of the code of criminal procedure: "when the Board of education ruled on an appeal brought against an order for pre-trial detention, or following a referral to the Prosecutor of the Republic is that it has confirmed this decision, or that the reversing, it has ordered a release or detained or issued a warrant deposit or stop. the Attorney general made return of the dossier to the investigating judge immediately after the execution of the judgment. When the Board of education awarded warrant of committal or she reverses an order for release or refusal of extension of pre-trial detention, pre-trial detention decisions continue to fall within the competence of the judge of instruction and the judge of freedoms and detention except as expressly stated on the part of the Board of education saying that she is alone competent to rule on bail applications and extend the case appropriate remand. It is also the case when the Board of education ordered changes a judicial review or a house arrest with electronic monitoring.
«When, in other matters, the Board of education reversed an order of the investigating judge or is seized pursuant to articles 81, last paragraph, 82, last paragraph, 82-1, second subparagraph, 156, second paragraph, or 167, fourth paragraph, it may, either raise and proceed under the conditions laid down in articles 201, 202, 204 and 205, or refer the case to the judge of instruction or to such other to continue the information.» It can also perform a partial recollection of the folder by not carrying only to certain acts before returning the file to the investigating judge.
"The order of the judge of instruction or the judge of freedoms and under detention of Appeal released its full and complete effect if it is upheld by the Board of education. ''
"In case of appeal against a refusal of bail order, the Board of education may, at the hearing and before the close of the discussion, to immediately seize any request for release on which the investigating judge or the judge of freedoms and detention has not yet ruled; in this case, to decide both on the call and on this application';
2. considering that, according to the applicant, the faculty, for the Board of education, to reserve custody litigation infringes "the principle of the double degree of jurisdiction", the principle of equality before the courts and "requirement of motivation of judicial decisions".
3. whereas the priority issue of constitutionality is on the first paragraph of article 207 of the code of criminal procedure;
4. whereas pursuant to article 6 of the Declaration of the rights of man and of the Citzen of 1789: "the law... must be the same for all, either that it protects or punishes. article 16 States: "any company in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution '; Whereas, if the legislature may provide different rules of procedure according to the facts, situations and persons to which they apply, it is provided that these differences are not unjustified distinctions and are ensured to litigants equal guarantees;
5. whereas human rights implementation review remanded in custody are provided for by the provisions of articles 143-1 to 148-8 of the code of criminal procedure; that it results from articles 185, 186 and 187-1-187-3 of the same code that the Board of education is the jurisdiction of appeals from decisions of the judge of instruction or the judge of freedoms and detention ruling on pre-trial detention of a person for examination; the legislature thus provided that the judicial decisions in this matter can, at the request of that person or the Crown, subject to a review, by the Chamber statement, regularity and the need for such a custodial measure freedom;
6 whereas the second sentence of the first subparagraph of article 207 of the code of criminal procedure derogates from the principle according to which the Board of education has been divested by its ruling on an appeal brought against an order for pre-trial detention; that it allows the Board of education, when reversing a decision of the judge of instruction or the judge of freedoms and detention, it shall issue a decision having the effect of ordering pre-trial detention, to extend or deny a request for release, say they are only competent to adjudicate in this matter, as a derogation, for the continuation of the investigation procedure. that the last sentence of this paragraph extends the same Faculty decisions on judicial review or of house arrest with electronic monitoring.
7. whereas these provisions confer upon the Board of education the discretion to deprive a person put in consideration, during the entire procedure instruction, the guarantees provided by articles 144-1 and 147 of the code of criminal procedure which prescribe to the investigating judge or the judge of freedoms and detention to order his immediate release as soon as the legal conditions of detention are no longer fulfilled those laid down in article 148 of the code for the consideration of requests to release at trial the right to a double degree of jurisdiction established for any decision on pre-trial detention; that the possible divergence between the respective positions of the courts of first instance and appeal with respect to the subsequent need for the detention of the person cannot however justify that thus infringing rights which are granted by law to any person placed in pre-trial detention; that, consequently, the second and third sentences of the first subparagraph of article 207 of the code of criminal procedure disregard the requirements resulting from articles 6 and 16 of the Declaration of 1789 and must be declared contrary to the Constitution;
8. whereas pursuant to the second subparagraph of article 62 of the Constitution: "a provision declared unconstitutional on the basis of article 61-1 is repealed with effect from the publication of the decision of the Constitutional Council or a later date fixed by this decision. The Constitutional Council shall determine the conditions and limits in which the effects of available products are likely to be challenged "; that this declaration of unconstitutionality takes effect from the date of publication of the present decision; stop effect from this date, the decisions by which a Board of education has reserved jurisdiction to rule on bail applications and where appropriate extend pre-trial detention; that is the same on judicial review or of house arrest with electronic monitoring;
9 whereas the first sentence of the first subparagraph of article 207 of the code of criminal procedure does not affect any other right or freedom guaranteed by the Constitution, decides: Article 1 more on this article...

The second and third sentences of the first subparagraph of article 207 of the code of criminal procedure are declared contrary to the Constitution.


Article 2 the declaration of unconstitutionality of article 1 shall take effect from the date of publication of this decision in accordance with recital 8.


Article 3 read more on this article...

The first sentence of the first subparagraph of article 207 of the code of criminal procedure is consistent with the Constitution.


Article 4 more on this article...


This decision will be published in the Official Journal of the French Republic notified under the conditions laid down in article 23-11 of the above-mentioned Ordinance of November 7, 1958.
Deliberated by the Constitutional Council in its meeting of December 16, 2010, attended by: Mr. Jean-Louis DEBRÉ, president, Mr Jacques BARROT, Ms. Claire BAZY MALAURIE, Mr Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mme Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Pierre STEINMETZ.


President, Jean-Louis Debré