Key Benefits:
ORIENTATION AND PROGRAMMATION
FOR THE PERFORMANCE OF INLAND SECURITY
Mr. President of the Constitutional Council, Members of the Constitutional Council,
We have the honour to refer, in accordance with the second paragraph of Article 61 of the Constitution, the Guidance and Programming Law for the Performance of Internal Security.
On Article 1
Section 1 of the Act provides that: The attached report on the objectives and means of internal security to 2013 is approved.
You have had the opportunity to judge, with respect to an equivalent provision, that the "orientations" presented in the report contained in Schedule I to the above-mentioned Act do not fall within (..) any of the categories of legislation provided for in the Constitution and are therefore not subject to the normative value attached to the law (2002-460 DC of 22 August 2002, cons. 21. Cf. also 2002-461 DC, 29 August 2002, cons. 90). However, you had considered a time when the provisions without a normative character (...) could not (..) be usefully argued with unconstitutionality (2003-467 DC, 13 March 2003, cons. 90).
Then your case law has evolved, and you have been obliged to pronounce the censorship of certain provisions on the basis of this absence of a normative character. Thus, you censored Article 4 of Organic Law No. 2004-758 of 29 July 2004 on the financial autonomy of territorial authorities which, because of its uncertain normative scope, did not respect the principle of clarity of the law (2004-500 DC of 29 July 2004, cons. 15). Likewise, because you considered that its provisions were clearly devoid of any normative scope that you had censored the II of Article 7 of Law No. 2005-380 of 23 April 2005 orientation and programme for the future of the school (2005-512 DC of 21 April 2005, cons. 17).
Thus, in view of your jurisprudence prior to the 2008 constitutional review, there would be no doubt that section 1 of the law referred to you would have been censored.
By the constitutional revision of 2008, the constituent power has inserted an antepenultth preambular paragraph to Article 34 of the Constitution under which: Programming laws determine the objectives of the action of the State.
But is it to say that, in this case, under the pretext of enacting a bill of orientation and programming, the legislator could now ignore the requirements of clarity and intelligibility of the law that the Declaration of Human and Citizen Rights of 1789 imposes on it?
Because that's what this is about here. Indeed, this requirement of the normality of the laws, you have deducted it from Article 6 of the 1789 Declaration, which you have considered to have resulted, as from all other constitutional norms of value relating to the subject matter of the law, that, subject to the specific provisions of the Constitution, the law is intended to lay down rules and must subsequently be subject to a normative scope (April 8, 2005-5, 2005)
However, this jurisprudence did not result from any will on your part to arbitrarily muzzle the legislator, but responded to the legitimate concern, as indicated in the commentary to the notebooks of this decision, of condemning the "Bavarian law" (...) justified by the need to stop the process of degradation of the quality of the legislation (cahier no. 19). Of this concern, how salutary you should not leave.
It is therefore up to you today to decide on the validity of a provision which obviously has no normative character, in the light of the new drafting of Article 34 of the Constitution.
This lack of a normative nature of Article 1 and the report to which it refers must at the very least bear a consequence: unfit the law from its title of programming law.
Indeed, it cannot receive this qualification because, unlike its predecessor, the Act No. 2002-1094 of 29 August 2002 guidance and programming for internal security, it does not have a provision programming the means of internal security. It was precisely on the basis of this programming that you had accepted the normative value of section 2 of that Act (2002-460 DC of 22 August 2002, cons. 21. Cf. mutatis mutandis pour la programmation de moyens de la justice votre décision n° 2002-461 DC, 29 août 2002, cons. 90).
Here, on the other hand, the only means to come envisaged are in tables annexed to the law, not in the body of the law itself. And, moreover, the only programming envisaged is actually the years 2012 and 2013. As for the previous years, 2009, 2010 and 2011, they are subject to financial laws already passed and partly enforced, which de facto removes any prospecting.
On Article 4
Section 4 of the Act introduces toArticle 6 of Act No. 2004-575 of 21 June 2004 for confidence in the digital economy after the fourth paragraph of 7 of 1 two paragraphs under which:
When the necessities of the fight against the diffusion of images or representations of minors under theArticle 227-23 of the Criminal Code the administrative authority shall notify the persons referred to in 1 of this 1 of the e-mail addresses of the e-communication services to the public in violation of the provisions of this article, to which they shall prevent access without delay.
A decree sets out the terms and conditions for the application of the preceding paragraph, in particular those that are compensated, if any, the incremental costs resulting from the obligations assumed by the operators.
The purpose of this provision is to allow the administrative authority to require Internet service providers (ISPs) to establish a filtering system limiting access to websites containing images or representations of minors of a pornographic character.
It is not in the intention of the authors of the referral, as evidenced by all their interventions in commissions and sessions, to question the legitimacy and the imperative need to combat child pornography. But, as legitimate as the objective pursued, this provision nevertheless undermines your censorship, both the legislator and the complainants' regret, has resorted to manifestly inappropriate means for the pursuit of this objective (1), while remaining below its jurisdiction, by not providing sufficient guarantees against possible arbitrary infringements of the freedom of expression protected by article 11 of the Declaration of Human and Citizen's Rights of 1789 (2).
1. The inappropriate nature of the means
against the objective pursued
It is consistent that your high jurisdiction does not have a general discretion and decision-making authority similar to that of Parliament (2010-605 of 12 May 2010, cons. 23). But if it is not up to you to consider whether the objectives of the legislature could have been achieved by other means, it is nevertheless provided that the terms of the law are not manifestly inappropriate (99-416 DC of 23 July 1999, cons. 10). So have you recently censored the carbon contribution device on the grounds that it had total exemption regimes contrary to the global warming goal (2009-599 DC of 29 December 2009, cons. 82). In addition, you have just ruled that the compensation scheme for the confessions as contemplated by the law on the reform of representation in the appeals courts on the grounds that it was contrary to the constitutional requirement of proper use of public money (2010-624 DC of 20 January 2011, cons. 17).
Not only do many cybercrime specialists agree that, whether it is to prevent inadvertent or voluntary access to the sites concerned, these filtering devices of child pornography sites are absolutely ineffective, but, on the contrary, they contribute to making the repression of this scourge even more difficult, when they do not simply discourage it.
The literature on the subject is abundant (1) and will usefully inform your high jurisdiction. The authors of the referral will thus simply recall the unrequested conclusion of the impact study of the blocking of child pornography sites established by the Fédération française des télécoms and electronic communications that the solutions of blocking access to child pornography sites do not prevent involuntary access to child pornography content available on the web, and that, on the other hand, all the blocking techniques, without exception, will not prevent any unlawful access to child pornography.
As it may have been noted during the debates in the Senate, trying to block child pornography by blocking access to the internet is to block aircraft in the middle of the flight by setting up roadblocks on the ground (full account of the debates of September 8, 2010).
But even more serious, and still according to the French Federation of Telecoms and Electronic Communications, as soon as the blocking is effective, sites specialized in bypassing techniques will multiply, thus significantly reducing the effectiveness of the device.
However, by-passing techniques, whether through the use of private networks or the strengthening of encryption systems, will all make it even more difficult to spot, and thus, in fine, the repression of criminals at the origin of the dissemination of images or child pornography. The blocking is not only inadapted, but is counterproductive.
In this regard, it should be remembered that the United States and United Kingdom intelligence services complained to their French counterparts about what HADOPI law had contributed to the rise in cryptography among Internet users, thus making the fight against terrorism more complicated.
It should also be noted that all content broadcast on Peer-2-Peer networks, or through instant messaging services, are outside the blocking perimeter, even though, as also indicated in the study of the Fédération française des télécoms et des communications électronique, they are the main avenues found to exchange child pornography.
Finally, not happy to be ineffective and even counterproductive, this mechanism will prove extremely cost-effective for public finances, since it puts the state's burden on the ISPs. Costs that are not included in the impact study of the bill, but that the French Federation of Telecoms and Electronic Communications has estimated to be able to reach up to 140 million euros. In addition, the cost of human resources for the implementation of the system should be added. Now, and without more precision, the impact study indicates that this task will be very costly in human resources.
Thus, because this measure is manifestly inappropriate and even counter-productive, and will weigh heavily on the public finances of the State, it does not meet the requirement of necessity set out in Article 8 of the 1789 Declaration, nor that of a good use of the public money that stems from Articles 14 and 15.
2. The negative incompetence of the legislator
As you have had the opportunity to say: "in accordance with Article 34 of the Constitution, the law sets the rules on civic rights and fundamental guarantees granted to citizens for the exercise of public freedoms; that it is up to the legislator to safeguard constitutionally guaranteed rights and freedoms; that if it can delegate the implementation of this safeguard to the regulatory authority, it must nevertheless determine the nature of the necessary guarantees; that, with regard to freedom of communication, it is up to it to reconcile, in the current state of the techniques and their control, the exercise of this freedom as it results from Article 11 of the Declaration of Human and Citizen Rights, with, on the one hand, the technical constraints inherent in the means of communication concerned and, on the other, the objectives of constitutional value which are the safeguarding of public order,
But you have just felt that access to the internet is now an integral part of freedom of communication. According to your own terms, "in the current state of the means of communication and in view of the widespread development of the online public communication services as well as the importance of these services for participation in democratic life and expression of ideas and opinions, this right implies the freedom to access these services" (2009-580 DC of 10 June 2009, cons. 12).
Obviously, it is not in the applicants' intention to claim that access to child pornography sites would be the subject of this freedom of communication. On the other hand, they cannot admit that, in the absence of sufficient guarantees provided by the legislator, the freedom of communication via the internet is subjected to arbitrary interference by the administrative authorities under cover of the struggle of child pornography.
This risk exists well. First of all, the blocking of a content can result in the blocking of a site as a whole. As stated in the impact study annexed to the original bill, "the risk of blocking access to content that is not illegal exists because, on the one hand, the volatility of content on the Internet and, on the other hand, the blocking technique used (blocking access to all domains while only one content is illegal)". However, there is no technique that allows for the safe avoidance of this phenomenon of overlock. For example, it was the entire Wikipedia site that in England was blocked for three days in December 2008 following the attempt to block one of the pages of the site that contained the illustration of a disc pocket representing a naked minor. This is the disproportion between the goal sought and the result achieved.
But the risk of arbitrary interference exists above all insofar as the entire filtering system will be based exclusively on administrative authorities without any independent monitoring of the qualification of the pornographic character of the images or representations of the minors in question as defined in theArticle 227-23 of the Criminal Code.
In order to avoid this risk, the National Assembly had planned on first reading that this filtering could only be done "after agreement of the judicial authority".
On first reading, the Senate had abolished the control of the judicial authority, but demanded in exchange that the images or representations of minors should have a " manifestly pornographic character," and, if not, it would be up to the administrative authority to seize the judicial authority.
In the final version, the text no longer contains any reference to the manifestly pornographic character of the images in question, nor to the intervention of the judicial authority. During the debate on first reading in the Senate, the rapporteur of the Law Commission had justified the deletion of the reference to the judicial authority, on the ground that "the proposed provision has a much smaller scope [that the HADOPI Act], since it tends not to prohibit access to the Internet, but to prevent access to a specified site because of its illegal character" (full account of the sitting of September 8, 2010).
The applicants want to admit that the provision is more "restricted" than in the HADOPI Act. However, they cannot go to the analysis that the rapporteur of your decision no. 2009-580 DC of 10 June 2009. Indeed, what matters is not the extent of the restriction, but, according to your own terms, "the nature of freedom guaranteed by Article 11 of the Declaration of 1789" (cons. 16), freedom about which you stated that it was a "basic freedom, especially since its existence is one of the essential guarantees of respect for other rights and freedoms" (94-345 DC of 29 July 1994).
As indicated in the commentary to notebooks 27 of HADOPI 1, this freedom must be preserved both in its "passive" dimension, the citizen being the receiver of the information, and in its "active" dimension, the citizen being the issuer of the information.
Moreover, the possibility of filtering cannot be analysed in a mere administrative police measure as long as, as it is clear from the debates before the two Assemblys, it implies a prior assessment of the illicit nature of the images or representations in question, as defined in the proceedings before the two Assemblys.Article 227-23 of the Criminal Code.
Let's think, for example, at Larry Clark's last exhibition, which was held at the modern art museum in the city of Paris, where the content of some photos representing young adolescents gave rise to a major controversy. It is obvious that, according to the sensibilities of each individual, some will see clearly child pornography, where others will only see the free exercise of the artist's expression.
Also, because of the appreciation that the filtering envisaged on the nature of the images and the representations involved, as well as the consequences that this appreciation may have on the freedom of communication of which you are the guardians, the device envisaged could not be left to the sole appreciation of the administrative authority, without encouraging your censorship.
On Article 11
Article 11 for a party codifies the provisions of articles 21, 21-1 and I of thearticle 23 Act No. 2003-239 of March 18, 2003 for internal security related to history files (STIC and JUDEX) and serial analysis.
For another part, it extends the field of these different files: to people who are the subject of an investigation or instruction to search for the causes of death or disappearance of minors for the files of priors; to those investigated for "any offence" punishable by five years' imprisonment for serial analysis files.
He then provided some details regarding the deletion and rectification of the data on the previous data files.
Finally, he instituted a reference magistrate, with the prosecutor of the Republic, responsible for monitoring and updating these two categories of files.
The applicants do not know that you have validated the equivalent provisions of the Act No. 2003-239 of 18 March 2003 for internal security regarding previous files in your decision No. 2003-467 DC of 13 March 2003 explicitly, just as you validated those of the Act No. 2005-1549 of 12 December 2005 relating to the treatment of recidivism of criminal offences concerning serial analysis files in your Decision No. 2005-527 DC of 8 December 2005, but implicitly.
As a result, in your decision No. 2003-467 DC, you found that the legislator had not misunderstood the constitutional requirements for "respect for privacy" (cons. 21-27), "use of treatment for administrative purposes" (cons. 28-35), to "criminal law of minors" (cons. 36-38), to "respect for the presumption of innocence" (43)
However, you had issued five reservations to the constitutionality of this device (cons. 46):
that the law of January 6, 1978 shall apply to the treatment in question (cons. 26);
that the data collected in the files will, in each case, constitute only one element of the decision taken, under the control of the judge, by the administrative authority (cons. 34), and that they cannot be heard as challenging the acquisition of French nationality when the French nationality is, under the law, in full law, or the renewal of a residence title when the person is, in full or in accordance with the law,
―that it shall be the decree provided for by the law referred to determine a shelf life that reconciles, on the one hand, the need to identify the perpetrators of offences and, on the other, the need to seek the educational and moral rehabilitation of juvenile offenders (cons. 38);
that any person registered in the file must be entitled to exercise the right of access and rectification of the data relating to it under the conditions laid down in section 39 of the Act of 6 January 1978 (cons. 43).
With regard to the identical provisions of the law referred to you here, they therefore necessarily require, and a minimum, the same reservations of your high jurisdiction.
They call for a more thorough examination since your decisions in 2003 and 2005, a "change of circumstances" has occurred within the meaning of article 23-2 of revised order No. 58-1067 of 7 November 1958 on the Organic Law on the Constitutional Council which allows you to submit a priority question of constitutionality, even though the provision in question had been previously declared in accordance with the Constitution on the grounds and the arrangement of an earlier decision (2010-14 July 2010) In fact, there is no objection to the fact that in the context of a referral, a priori, your high jurisdiction takes into account such a change of circumstances when examining provisions that are, in part, identical to provisions that it has previously declared in conformity with the Constitution.
However, in this case, in a report to the Prime Minister on 20 January 2009 on the control of ITS (2), the National Commission on Informatics and Freedoms found that "only 17% of the fact sheets were accurate" (3). In general, the report highlights that the provisions of the Follow-up and Corrections Act 2003 were clearly ineffective. However, in 2009, it was not less than 5.58 million people involved in this file, an increase of 41% compared to 2001 (4).
But it is a fundamental principle enshrined in 4th of Article 6 of Law No. 78-17 of 6 January 1978 related to computing, files and freedoms – the law that Joël Boyer recalled, the "special status" in relation to your case law "is undeniable" (5) – and that the data in a file must be "exact, complete and, if necessary, updated".
This is the case with this new and alarming circumstance that the applicants ask you to consider again the identical provisions of the law here referred to the 2003 law that you had, subject to reservation, declared in conformity with the Constitution.
In addition, some of the new provisions of the law require, if not censorship, at least the reservations of your high jurisdiction with regard to the negative incompetence shown by the legislator and "the objective of constitutional value of intelligibility and accessibility of the law" which "requires it to adopt sufficiently precise provisions and unequivocal formulas" (2004-499 DC of 29 July 2004, cons. 29).
This is the case in section 230-8 of the Code of Criminal Procedure as a result of section 11 of the Act and which distinguishes according to that the decisions of classification without action are "motivated by a lack of charges", and other decisions of classification without further action.
It is expected that the first ones will be referred to a "reference, unless the Attorney of the Republic orders the deletion of personal data", while the second "release" but without the possibility for the Attorney of the Republic to order the deletion of personal data.
This diet difference is perfectly unjustified, and consequently completely intelligible. It would indeed result in this result, it can no longer be paradoxical, that a person who has benefited from a ranking without a result for defect would be kept on a police or gendarmerie file without the possibility of being striped of it, while the one on which suspicions continue could, it, benefit from a withdrawal of these files.
Furthermore, the scope of the last sentence of this provision is also not of great clarity. It provides that: "When a decision is mentioned, the data relating to the person concerned cannot be consulted in the context of the administrative investigations provided for in theArticle 17-1 of Act No. 95-73 of 21 January 1995 guidance and programming on security."
However, there is no indication as to whether this accuracy is valid only for classification decisions without action referred to in the penultimate sentence of section 230-8, or whether it relates to all decisions denouncing a person making reference referred to in the article. According to the appellants, this second interpretation must be retained, without which, "by its excessive character," the administrative use of the files would be "infring on the rights or legitimate interests of the persons concerned" (2003-467 DC of 13 March 2003, c. 32).
On Article 18
This provision makes an amendment to the video surveillance regime as it results from theArticle 10 of Act No. 95-73 of 21 January 1995 and security-related orientation and programming, as amended by Act No. 2006-64 of 23 January 2006 on combating terrorism.
While some of these provisions remain in constant law, others, on the other hand, make substantial amendments, particularly in that they confer on private persons prerogatives that were previously reserved for public authorities: the extension of the right to film certain public places on the one hand, the possibility of viewing images filmed by public authorities on the other.
Thus, Article 10, II, of the 1995 Act, would allow private legal persons to implement a video protection system on the public highway for the purpose of ensuring the protection of the surroundings of their buildings and facilities, in places likely to be exposed to terrorist acts or particularly at risk of aggression or theft.
Until now, and since the Terrorism Act 2006, the possibility for private individuals to install video surveillance systems on the public track was limited to the sole protection of the immediate surroundings of their buildings and facilities (...) in places likely to be exposed to terrorist acts.
The third of Article 10 would allow the viewing of images to be ensured by officials of the public authority or employees of the legal person holding the authorization or by those of public or private operators acting on their behalf under a convention. This second hypothesis is intended to allow images taken by a public video surveillance system to be viewed by private law agents.
However, in doing so, the legislator has delegated to private individuals the tasks inherent in the exercise by the State of its sovereignty missions (1), and ignored the constitutional requirements related to the protection of individual freedom and privacy (2).
1. The lack of knowledge of prerogatives
sovereigns of the State
On the occasion of the examination of the Act No. 2002-1094 of 29 August 2002 of guidance and programming for internal security, you had strongly recalled that the tasks inherent in the exercise by the State of its sovereignty missions could not be the subject of a delegation to private individuals (2002-461 DC of 29 August 2002, cons. 8).
However, this is what the legislator is doing with the disputed provisions as described above, which lead de facto to allowing private individuals to conduct general public oversight.
It does so first by allowing private legal persons to install video surveillance systems not to the immediate surroundings, but to the vicinity of their buildings and facilities in places exposed to risk of aggression or theft.
However, first, the term first is much less precise than that of the first instant. Secundo, there is no place that is not likely to be exposed to risks of assault or flight. That they may be particularly offer a semantic guarantee, certainly not legal.
The Minister of the Interior did not hide it on the occasion of the debates in the National Assembly by stating: I wish that the law clearly indicates that the effectiveness of video protection systems requires that it be able to sweep a wider field than the few meters located in front of the trade door or the factory concerned, for protection. (full account of the proceedings of the 2nd meeting of 11 February 2010).
The legislator then does so by allowing private individuals to carry out the screening of images of the public authorities, and thus to participate in the monitoring of the public channel.
However, as the Council of State has pointed out, the monitoring of the public highway is exclusively the responsibility of administrative police missions. He therefore found that a contract, which was not limited to entrusting [to a private company] the tasks of monitoring and guarding the buildings and urban furniture of the commune and had the effect of ensuring it a mission of monitoring the public tracks of the entire commune, was illegal in that it concerned the monitoring missions of the city (commune of Ostricourt, 29 December 1997, n° 170).
Generally speaking, and as you have had the opportunity to recall, video surveillance contributes to the constitutional value of public order (94-352 DC of 18 January 1995, cons. 4). As well as preserving public order and preventing offences are the very definition of the administrative police (2005-532 DC of 19 January 2006, cons. 5). However, it is the result of your jurisprudence that the administrative police fall under the jurisdiction of the mayors, prefects (94-352 DC of 18 January 1995, cons. 4), the Prime Minister who has general police allocations under his or her own powers and outside of any legislative authorization (2000-434 DC of 20 July 2000, cons. 19) or independent administrative authorities (89-271 DC of 11 January 1990, cons. 3).
On the other hand, it could not be private persons. Thus, you have judged them by referring to private agents sworn under the HADOPI Act that they were not invested in the power to monitor or intercept private exchanges or correspondence (2009-580 DC of 10 June 2009, cons. 30).
Therefore, and whatever the precautions taken by the legislator to frame this mechanism, it could not without encouraging your censorship entrust to persons deprived of the prerogatives inherent in the administrative police.
2. As for the violation of individual freedom
and Privacy
It appears from your jurisprudence on video surveillance that it has become video protection, is likely to ignore the right to privacy that is itself in a way that infringes individual freedom (94-352 DC of 18 January 1995, c. 3).
However, the appellants consider that by entrusting private individuals with such an extended supervisory power as that granted to public authorities, the legislator has ignored the necessary conciliation it had to carry out between the preservation of public order and respect for constitutionally guaranteed freedoms.
In this regard, the appellants, together with the Venice Commission, recall that the right to privacy is not limited to the sphere of home or privacy, but also applies to public space (6). Acceptable interference in a democratic society must therefore be strictly proportionate, or, to resume your own terms, be adapted, necessary and proportionate to the prevention objective pursued (2008-562 DC of 21 February 2008, cons. 13).
However, the privatization of the monitoring of the public space to which it is carried out does not meet any of these criteria, except to admit that it is necessary that the public power now rely on the private sphere to ensure the protection of its citizens.
It is also because, among other things, the 1995 legislator required prefectural authorization to prescribe all the necessary precautions, in particular as to the quality of the people charged with the operation of the video surveillance system or viewing the images and the measures to be taken to ensure compliance with the provisions of the law that you validated this device whose private persons were excluded (94-352 DC of 18 January 1995, cons.
In the absence of equivalent guarantees in the disputed text, the result is a manifestly excessive violation of individual freedom and respect for privacy that calls for your censorship.
On Article 37
Pursuant to Article 23 bis of the Law:
"After section 132-19-1 of the Penal Code, an article 132-19-2 is inserted as follows:
"Art. 132-19-2. ― For offences provided for in sections 222-9, 222-12 and 222-13, at 3° of section 222-14, at 4° of section 222-14-1 and 222-15-1, the penalty of imprisonment shall not be less than the following thresholds:
1° Eighteen months, if the offence is punishable by seven years of imprisonment;
« 2° Two years, if the offence is punishable by ten years' imprisonment.
"However, the court may, by a specially reasoned decision, impose a sentence below these thresholds or a sentence other than imprisonment in consideration of the circumstances of the offence, the personality of the perpetrator or the guarantees of insertion or reintegration presented by the perpetrator. »
The offences to which this provision will apply are:
Article 222-9: "The violence resulting in mutilation or permanent infirmity is punishable by ten years' imprisonment and 150,000 euros' fine. »
Article 222-12: Violence resulting in total incapacity for more than eight days when committed against certain persons, in certain circumstances, or in certain places. It provides for a sentence of 7 years when the violence is committed with two aggravating circumstances.
Article 222-13: Violence resulting in a work disability of less than or equal to eight days or having caused no incapacity to work when committed against certain persons, in certain circumstances, or in certain places. It provides for a sentence of 7 years when the violence is committed with three aggravating circumstances.
Article 222-14 (3°): "The usual violence on a 15-year-old minor or on a person whose particular vulnerability, due to age, illness, disability, physical or mental impairment or pregnancy, is apparent," when they "have caused total incapacity for work for more than eight days", are punishable by 10 years' imprisonment.
Article 222-14-1 (4°): "When committed in organized or with a guet-apens, the violence committed with use or threat of a weapon on a national police officer, a gendarmerie member, a staff member of the prison administration or any other custodian of the public authority, or on a civil or military firefighter or an officer of an incapacitated public passenger network
Article 222-15-1: The ambush, "when the facts are committed in meeting", is punishable by 7 years' imprisonment.
In all these circumstances, the object of the disputed device is to establish what it has agreed to call "floor sentences", which were previously reserved for offences committed in recidivism since the Act No. 2007-1198 of 10 August 2007 Strengthening the fight against recidivism of majors and minors.
Because the legislator extended these penalties that were to remain exceptional in terms of their impact on individual freedoms to primodel offenders, including minors, the applicants consider that the constitutional requirements of necessity (1) and individualization of sentences (2), such as those relating to the criminal law of minors (3), were not met.
1. The need for floor sentences
In accordance with Article 8 of the Declaration of Human and Citizen Rights of 1789: "The law must establish only strictly and obviously necessary penalties..."
From this, and according to a constant case law, you have deduced that "if the need for the penalties attached to the offences falls within the discretion of the legislator," it is nevertheless up to you to "sure that there is no obvious disproportion between the offence and the penalty incurred" (2007-554 DC of 9 August 2007, cons. 8).
However, in this case, you will not fail to see that the application of the minimum penalties as envisaged here is clearly disproportionate, as long as it may be concerned with primodelizing, and for offences that, to be serious, do not all have a particular degree of gravity sufficient to justify the severity of the sanction envisaged.
The appellants do not know that you have validated the use of this type of punishment as established by the Recidivism Act, 2007, considering, among other things, that article 8 of the 1789 Declaration cannot "have an obstacle to the legislator setting rules for the effective suppression of offences" (ibid., cons. 13).
But your validation had taken into account that, with respect to the new legal recidivism, it was "in itself an objective circumstance of particular gravity" (cons. 10).
With regard to penalties that would now be applicable to any offender, he or she is a primodel, and not a recidivist, you must at the very least verify that they will only apply for offences that actually have a "special gravity".
That was indeed the position adopted by the Senate Law Commission, and then by the Senate itself, in first and second reading. Thus, in the first instance, the commission had unanimously issued an unfavourable opinion to the very principle of the minimum penalty applicable to the primodel, before accepting it, but on the condition that "limiting its scope to the most serious violence, punishable by ten years of imprisonment and having led an ITT greater than fifteen days" (report No. 214 [2010-2011], p. 37).
However, the text finally adopted will result in the application of floor sentences to offences that have not led to any ITT, and of which it is obvious that they do not always present particular gravity.
Thus, under the title ofarticle 222-13 of the Criminal Code, would fall under the penalty of 18 months' imprisonment for minors aged 15 (1°) who would participate in a rixe at several (8°) in a school or at its beginning (11°). Similarly, a minimum sentence of 18 months would be imposed on the rix between adults (8°) in a state of breeze (14°) on the dock of a metro or at a train station (13°). And this, in both cases, while no wounded would be deplorable.
However, in these two assumptions, the 18-month floor sentence will be greater than the minimum penalty for murder! Since, indeed, in accordance withArticle 132-18 of the Criminal Code, when a sentence is provided in time, which is the case for the simple murder that is punishable by 30 years of criminal imprisonment, a "prisoner sentence that cannot be less than one year".
In addition, under the 4th of Article 222-14-1, the penalty of 2 years would be incurred for those who have stabbed firefighters after setting fire to an object to attract them, even though there would not have been any injuries.
This means that the perpetrators of these acts, which, as serious as they may be, fortunately remained without consequences, will incur exactly the same minimum penalty as the perpetrator of an act of torture, as the perpetrator of an assassination, or that the perpetrator of a rape on a minor accompanied by acts of barbarism; theArticle 132-18 of the Criminal Code providing for crimes punishable by perpetuity "a prison sentence that cannot be less than two years."
Thus, by retaining penalties that are equal or even higher than those for the most serious crimes, the legislator made a manifest error of appreciation in the scale of penalties. If the Grievors have opposed, and still oppose the provision of floor sentences for recidivism, at least could they grieve the 2007 legislator for failing to be consistent from this point of view.
This is why you cannot fail to see the manifestly disproportionate character of the minimum penalty envisaged by this provision, at least when it has the effect of applying to offences punishable by imprisonment of less than 10 years, and that have not resulted in an ITT greater than 8 days.
2. As for the individualization of floor sentences
It is consistent that the "principle of individualization of sentences (...) stems from Article 8 of the 1789 Declaration" (2007-554 DC of 9 August 2007, cons. 13).
It is also true that the floor sentence is not automatic since it is provided that "the court may impose, by a specially reasoned decision, a sentence below these thresholds or a sentence other than imprisonment in consideration of the circumstances of the offence, the personality of the perpetrator or the guarantees of insertion or reintegration presented by the perpetrator".
However, on the basis of an identical provision in the 2007 law on recidivism, you found that it had not been "infringed on the principle of individualization of sentences" (cons. 14).
However, the fact that the judge can in a decision to sentence the person concerned with a full-law sanction does not systematically lead you to the respect of the principle of individualization of sentences. Conversely, you have found the Constitution to be contrary to the ConstitutionArticle L. 7 of the Electoral Code which had an automatic inability to exercise an elective public service of a duration of five years, and that even though the individual could "be, in whole or in part, including immediately, relieved of that incapacity under the conditions defined in the second paragraph of section 132-21 of the Criminal Code " You had in fact considered that "this possibility alone cannot ensure compliance with the requirements arising from the principle of individualization of sentences" (2010-6/7 QPC of June 11, 2010, cons. 5).
In this case, and in the case of primodelizing, the appellants consider that the ability of the judge not to apply a floor sentence alone cannot ensure respect for the principle of individualization of sentences.
The guarantee of respect for this principle is all the less assured, since by now applying the minimum penalties to offences committed without recidivism as well as in a state of recidivism, this principle has become, not only de facto but also de jure, the exception. That in fact, the legislator has thus, by successive touches, made freedom the exception, and of detention the rule.
Thus, by extending the provision of floor sentences, has the legislator inflicted an excessive and manifest infringement on the principle of individual freedom, which results both from the fundamental principles recognized by the laws of the Republic (76-75 DC of 12 January 1977, cons. 1), and from articles 1st, 2 and 4 of the Declaration of Human and Citizen Rights of 1789 (94-343/344 DC of 27 July 1994, cons. 3)
3. The applicable principles
criminal law of minors
By applying in the same way to adults and minors the minimum sentencing system, the legislator further ignored the fundamental principle recognized by the laws of the Republic, which imposes "the mitigation of the criminal responsibility of minors on the basis of age, such as the need to seek the educational and moral rehabilitation of child offenders by measures appropriate to their age and personality" (2002-461 DC of 29 August 2002, cons. 26).
Indeed, if it is true that this principle does not imply that "binding measures or sanctions should always be avoided for the benefit of purely educational measures," it nevertheless imposes that they are always considered as a priority.
In accordance with France's international commitments, in particular Article 37 of the International Convention on the Rights of the Child, detention must be "a measure of last resort." And that is why section 2 of the order of February 2, 1945 on child offenders provides that "The court for children cannot impose a sentence of imprisonment, with or without a stay, only after having specially motivated the choice of the sentence. »
Here again, the legislator reversed the logic that presides over the juvenile justice system, which requires that it not be the freedom that is motivated, but rather the deprivation of liberty.
If you were able to validate the application of floor sentences to minors (2007-554 DC of 9 August 2007, cons. 24-26), it is only because it was recidivist minors. However, as it has already been stated, to the extent that the disputed device can apply to primitive minors, for facts that do not have a particular gravity (7), it goes beyond what the constitutional principles applicable to the criminal justice of minors do not allow.
In this regard, it is not anodine to note that the rapporteur of the Senate's Law Commission himself observed that, "by making prison sentence the principle and the alternative penalty the exception for a wide range of offences, including non-recidivism," the article in question " tends to introduce in our law provisions contrary to the principles underlying the criminal law of minors" (report No. 214 [2010-2011].
For all of these reasons, the provisions in question call your censorship.
On Article 38
In that the 1st of Article 38 is intended to introduce to theArticle 221-3 of the Criminal Code a provision to extend the possibility of imposing a 30-year security sentence or an incompressible sentence when an assassination "was committed on a magistrate, a national police officer, a gendarmerie member, a prison staff member or any other public authority custodian, during the exercise or because of his or her duties".
You have validated the possibility of making such security sentences as well as incompressible penalties in your decision No. 93-334 DC of 20 January 1994 for the murder of minors preceded or accompanied by rape, torture or barbaric acts (cons. 7).
But so did you take it into account two categories of elements that give these crimes a particular gravity: the quality of the victim, on the one hand, and the circumstances of the murder, on the other.
However, in the case of this case, it is the only quality of victims who will order the implementation of the most repressive mechanism of our criminal arsenal, and not the circumstances under which the assassination was committed, as the Senate had wished. In the version voted by the latter, these penalties would only have been incurred if the crime had been committed "in organized band or with a guet-apens."
If the appellants have ceased to condemn with the utmost firmness the crimes committed in particular against the security forces, they cannot compare the vulnerability of a child under the age of 15 and that of a police officer in arms. They therefore consider that, as for minors, the circumstances that precede or accompany the crimes in question should have been taken into account.
Conversely, by retaining only the quality of the victims, and not the circumstances under which the crime was committed, the legislator did not respect the consistency of the scale of penalties, and thus introduced disproportionate penalties for the offence committed, contrary to the requirement of necessity as set out in article 8 of the 1789 Declaration (2007-554 DC of 9 August 2007, cons. 8).
For this reason, this provision will incur your censorship.
On Article 41
Section 41 is intended to integrate into theOrder No. 45-174 of 2 February 1945 Article 8-3 of the Child Offender Act states that: "The Attorney of the Republic may prosecute a minor before the Children's Court according to the procedure provided for in the proceedingsArticle 390-1 of the Code of Criminal Procedure if additional investigations on the facts are not necessary and investigations into the personality of the minor have been carried out, if any, on the occasion of proceedings initiated in the preceding six months or proceedings that have resulted in a conviction in the preceding six months. »
This would allow the State prosecutor to summon a minor by judicial police officer to the Children ' s Court. In other words, it is neither more nor less to align the appearance of minors with the model of the immediate appearance reserved to the majors, and to short-circuit the juvenile judge in fine.
A similar approach had already been initiated by Act No. 2007-597 of 5 March 2007 on the prevention of delinquency, which had instituted the procedure for "immediate submission to juvenile courts".
For the applicants, this additional step in aligning the criminal law of minors with that of the major is a clear violation of the fundamental principle recognized by the laws of the Republic, which requires that the measures adopted at their place be "adapted to their age and personality", and that they be "sented by a specialized jurisdiction or by appropriate procedures" (2007-553 DC of 3 March 2007, cons. 9).
As you will not fail to see, the conditions and guarantees that had led you to validate the immediate presentation procedure in 2007 are absolutely no longer met.
The only limit to the application of the summons by OPJ of minors is that investigations into the personality of the minor were carried out within six months. In this regard, taking into account the convictions in the preceding six months is clearly not relevant to the personality of the minor in question. Because if the conviction is recent, the investigation of her personality may, she may be very earlier.
The limit, however, was minimal, which had attempted to introduce the Senate that there should at least be similarity between the facts committed, was, in turn, wiped out by a setback.
Thus, once this condition of the six months is fulfilled, it is all minors who may be subject to this procedure, whether between 13 and 16 years, or 16 years or more, and for all offences, regardless of the quantum of the penalty in question, whether flagrant or not, all without the minimum period of ten days which must, in principle, separate the date of the presentation of the hearing of the juvenile court,
However, in order to validate the 2007 law, your high court had noted that:
- the immediate presentation procedure was applicable only to minors between the ages of sixteen and eighteen (cons. 15);
“If the quantum of the penalties that determines the ability to use this procedure is lowered, it remains higher than the one that requires the immediate appearance of the adults” (cons. 16);
"If the law allows the judgment of the case without the minimum period of ten days, it is on condition that the minor and his lawyer expressly consent to it and that the legal representatives of the minor, duly summoned, do not oppose it" (cons. 16).
And it is only "in view of all the precautions taken by the legislator" that you have concluded to respect the "constitutional principles specific to juvenile justice" (cons. 17).
In this respect, and in the total absence of similar precautions in this case, you will only be able to see that, on the contrary, the legislator has ignored the said constitutional principles applicable to juvenile justice.
On Article 43
Article 43 of the law referred to you provides that: "In order, if any, to refer the President of the General Council pursuant to the first paragraph of Article L. 222-4-1 of the Code of Social Action and Families for the Implementation of a Parental Liability Contract, the representative of the State in the department or, in Paris, the prefect of the police, shall be informed by the prosecutor of the Alternative Republics »
This means that the prosecutor of the Republic must systematically inform the prefect, and indirectly the presidents of the general councils, of the court decisions which are in principle inaccessible to them, except in limited circumstances.
Thus, pursuant to Article 776 of the Code of Criminal Procedure, Bulletin No. 2 of the criminal record may be issued to prefects only when they are "entered by requests for public employment, proposals relating to honorary distinctions or submissions for tenders of public works or contracts or for disciplinary proceedings or the opening of a private school, as well as requests for approval
But, above all, it will render these persons receiving information that they could never have known elsewhere, were they entitled to consult Bulletin No. 2 of the criminal record, for the reason that, in application of the principle of restricted access to information relating to the convictions of minors, the subject matter of minorsArticle 775 of the Code of Criminal Procedure excludes the convictions pronounced under the 1945 Order (1°) from the inclusion in Bulletin No. 2.
It is therefore once again an infringement of the constitutional principle of "mitigating the criminal responsibility of minors according to age" (2007-553 DC of 3 March 2007, cons. 9) which calls for your censorship, especially since it has the effect of imposing a more rigorous regime on minors than to the majors who, they, cannot be the subject of such a report, creating by the same occasion a break of the first steps
On Article 53
Article 53 tends to insert in the Commercial Code an article L. 443-2-1 as follows: "The fact, without authorization of the producer, organizer or owner of the rights to operate a sporting, cultural or commercial event, to offer, to put on sale or to expose for sale, on a network of communication to the public online, tickets of entry or tickets of access to such a am for demonstration in order to »
It also provides for the insertion in the same code of Article L. 443-3 that: "The legal persons declared criminally responsible for the offence defined in Article L. 443-2-1 shall, in addition to the fine in accordance with the terms and conditions set out in theArticle 131-38 of the Criminal Codethe penalties set out in section 131-39 of the same code. »
These provisions were adopted in ignorance of the constitutional requirements for accessibility and intelligibility of the Act (1), the need for penalties (2) and equality before the law (3).
1. The accessibility and intelligibility of the law
Here, it is good and accessibility and intelligibility that are both at stake.
As you have recalled, "the objective of constitutional value of accessibility" of the law requires that citizens have "a sufficient knowledge of the standards that apply to them" (99-421 DC of 16 December 1999, c. 13).
You thus considered contrary to this principle a provision of Electoral code which was to be applied to the election of senators, on the grounds that the item in question was "under title I of Book I of the Electoral Code, whose provisions are not related to that election" (2003-475 DC of July 24, 2003, cons. 22).
However, in this case, the disputed provision is incorporated into the Trade code, which applies only to merchants or companies, even though the new offence will apply to any person, individual or consumer, regardless of their quality.
In addition, it will take place within the code as a result of Article L. 443-2 relating to the offence of artificial rise of auctions on a market, by fraudulent processes, which has no connection, even indirect, with the new offence listed in Article L. 443-2-1.
The lack of intelligibility, for its part, stems from what the offence will be constituted if the person sells a ticket "to draw a profit".
So far, and pursuant to the law of June 27, 1919 on the suppression of the traffic of the tickets of theatre, it is the sale of tickets "at a price higher than that fixed and displayed in the subsidized or pre-owned theatres and concerts" which was sanctioned, in other words, the resale at a price higher than the facial value of the ticket.
Here, it's the benefit only that is targeted. Notion you will not fail to see that it is particularly blurred, and too extensive.
Flour, because this formulation has no legal meaning other than accounting law, and it implies that the sale may fall under the law, even though it would be at a price less than the facial value of the ticket.
Extensive, because it would, de facto, prohibit anyone who would have been offered a concert place of power to resell it, since, even at an infimous price, it will provide him with a benefit.
As for intermediary legal persons, i.e. resale platforms on the internet, they will be punished for having exposed the relevant tickets, even though they have no way of verifying whether the proposed offer exceeds their facial value, and even less if it implies or does not imply the existence of a "benefit".
It is therefore clear that the material element that is at the heart of this offence, on the basis of its inaccuracy, will not, for both natural and legal persons, "exclude the arbitrariness in sentencing", nor "avoid a rigour not necessary in the search for the perpetrators of offences" (2006-540 DC of 27 July 2006, cons. 10).
In addition, because it will allow these same persons to be prosecuted and convicted, even if they had no fraudulent intention, this device does not sufficiently define the intentional element of the offence, even though "the definition of a criminal offence, in criminal matters, must include, in addition to the material element of the offence, the moral element, intentional or not, of the offence" (99-4)
2. The need for penalties
If the need for penalties attached to the offences lies in the discretion of the legislator, it is nevertheless up to you, with regard to constitutionally guaranteed freedoms, to control "that the breaches of these freedoms are appropriate, necessary and proportionate to the prevention objective pursued" (2008-562 DC of 21 February 2008, cons. 13).
With regard to natural persons, the constitutional freedoms guaranteed here are those of the exercise of their right to property (90-287 DC of 16 January 1991, cons. 22), and their contractual freedom (2001-451 DC of 27 November 2001, cons. 27).
With regard to legal persons, it is their freedom to undertake that it is here violated (81-132 DC of 16 January 1982, cons. 16).
The exercise of the right to property is constitutionally guaranteed in its three components: usus, fruit and abuse. Thus, you have found that the "free disposal of its heritage" was "an essential attribute of the right to property" (98-403 DC of 29 July 1998, cons. 40).
However, an entry ticket or an access ticket is an property that the owner must be entitled, in principle, to freely dispose of, except for a particular general interest.
In this case, the measure is not adapted to any of the reasons mentioned by the legislator, whether it is the struggle against hooliganism, the fight against the sale of fake tickets, or the preservation of the image of the organizers. With respect to the latter element, the applicants doubt that this may constitute any grounds of general interest for which the legislator should be the protector, and which would justify an infringement of rights otherwise constitutionally guaranteed.
Moreover, if it was the resale on the internet that was actually the cause of the public disorders concerned, then it is the resale in itself that should have been sanctioned. But here, as the applicants have already indicated (8), it is not the resale as such that is concerned, but the resale "to draw a profit from it". In other words, with the device chosen, there will always be as many tickets in circulation, but at a more reasonable price, which, paradoxically, could help to accentuate the troubles that the promoters of this provision intended to prevent.
In addition, the penalty is clearly disproportionate. Consider punishing 15,000 euros of fine a young person who, unable to go to a concert, would have had this opportunity to earn a bit of pocket money by reselling with a small profit his ticket is to speak perfectly unreasonable.
This is all the more because this resale has not been harmful to anyone. Not to the buyer who has freely bought the ticket. Not to the organizer whose ticket was sold at the price that he himself had fixed. Not to the public order to which such an operation cannot affect as such. Thus, neither the principle laid down in Article 4 of the 1789 Declaration that "freedom consists in being able to do anything that does not harm others", nor the principle set out in Article 5 that "the law has the right to defend only actions harmful to society", are respected here.
The disproportion is all the more evident in the hypothesis already mentioned by the applicants (9) where the person who has been offered a graceful place and who cannot go to a show can in no way resell it, even at his face price, without falling under the law.
As for internet marketing platforms, the fact that they can be fined five times more than 15,000 euros, and this as many times as a sale has been concluded on their site, but also being sentenced to a final closure, is also manifestly disproportionate. Because, as previously noted by the applicants (10), these legal persons are unable to verify the face value of the tickets that are the subject of a transaction on their site, or even less to check whether the seller actually received a benefit. For them, the penalty will actually be automatic, as soon as a transaction has been made through them.
3. As for equality before the law
It is consistent that if the principle of equality of the law enshrined in Article 6 of the Declaration of 1789 "does not oppose that the legislator rules differently from different situations, nor does it derogate from equality for reasons of general interest," it is "provided that, in both cases, the difference of treatment resulting from it is directly related to the subject matter of the Act."
Now it is clear here that the law, by only aiming for the resale of tickets on a "online public communication network", creates a difference of treatment between those who will resell a ticket on a website dedicated to this type of operation, and those who, for example, will resell a ticket using a small advertisement store.
However, this difference cannot be justified by any difference of situation. This is the same operation, only the support is different. Thus the resale with profit would be prohibited on the internet ― and yet, not on any internet since the Peer-2-Peer exchange networks are not targeted ― while it would continue to be authorized through classified ads (11). This is the measure of the process.
This difference of treatment also has no connection to the subject matter of the law, the risks of public disturbances invoked by the legislator being exactly the same, whether the tickets were purchased on the Internet or that they have been through paper advertisements.
Also, and with regard to all of these reasons, the provision that has been postponed here still calls your censorship.
On Article 58
Section 58 is intended to replace the second paragraph of Article L. 2241-2 of the Transportation Code by three paragraphs:
"If the offender refuses or declares that he is unable to justify his identity, the agents mentioned to the offender first paragraph of Article 529-4 of the Code of Criminal Procedure promptly and by any means notify a territorially competent judicial police officer.
"During the time necessary for the information and decision of the judicial police officer, the offender is required to remain at the disposal of an officer referred to in the first paragraph of the same II.
"On the order of the judicial police officer, officers may lead the perpetrator of the offence before him or may detain him or her from the time required upon arrival or from a judicial police officer acting under his or her control. »
The current second paragraph of Article L. 2241-2 of the Transportation Code is written in the following terms: "If the offender refuses or is unable to justify his identity, such officers shall promptly notify a territorially competent judicial police officer. On the order of the latter, the agents referred to in the first paragraph of Article 529-4 of the Code of Criminal Procedure may be authorized to retain the offender the time strictly necessary for the arrival of the judicial police officer or, where applicable, to conduct him immediately before him. »
On the merits, and in appearance, the powers granted to the sworn agents of the operator of the transport service referred to in 4th of Article L. 2241-1 of the transport code referred to in Article L. 2241-2 are not amended: power to prevent a judicial police officer; power to retain the offender; and power to lead him to an OPJ.
What, on the other hand, is radically modified is the guarantees offered to the interested party that the deadlines in which it can be held against its will will be as short as possible. Indeed, the duty of diligence to prevent the offender only from the "serious time required for the arrival" of the OPJ or to be brought before him "on-the-spot" was deleted.
However, by not sufficiently setting the time limits for which the offender may be detained by the transport agents, the legislator has remained below his jurisdiction, and thus has deprived of legal guarantees the constitutional requirements protecting individual freedom, and especially the freedom to go and come.
Indeed, it is consistently clear from your jurisprudence that it is the responsibility of the legislator to specify the limits imposed on the competent authorities in order to avoid any "rigour not necessary in the search for the perpetrators" (2010-604 DC of 25 February 2010, cons. 8).
Thus, it must be "to ensure the conciliation between, on the one hand, the prevention of infringements of public order necessary for the safeguarding of rights and principles of constitutional value and, on the other, the exercise of constitutionally guaranteed freedoms", including individual freedom, and particularly the "freedom of going and coming" (2008-562 DC of 21 February 2008, cons. 13).
And if it is permissible at any time "to adopt, for the realization or conciliation of objectives of a constitutional nature, new modalities for which it is responsible to appreciate the opportunity", it is only on the strict condition that the exercise of this power does not result "to deprive legal guarantees of the requirements of a constitutional character" (99-416 DC of 23 July 1999, cons. 6 and 10).
Therefore, because the possibility given to transport agents to retain a person against his or her will must meet all of these constitutional requirements, that it must be adapted, necessary and proportionate (2008-562 DC of 21 February 2008, cons. 13), it must be able to be done only within the strictly necessary time to fulfil the reasons that justify it, and not to be left at the discretion of the OJO, or of the agents in question.
However, by not limiting sufficiently the time limits during which persons may be detained by the officers or conducts before the OPJ for verification of their identity, the legislator has left here an excessive margin of manoeuvre to these authorities, and thus deprived of legal guarantees the constitutional requirement of freedom to go and come (80-127 DC of 20 January 1981, cons. 58, and 93-323 DC of 5 August 1993, cons. That is why you will also censor this provision.
Articles 60 and 61
Section 60 introduces an article L. 332-16-1 in the sports code that allows the Minister of the Interior, by order, to "prohibit the individual or collective movement of people taking advantage of the quality of supporting a team or acting as such on the premises of a sports event and whose presence is likely to cause serious disturbances to public order".
Article 61 introduces an article L. 332-16-2, in the same code, which authorizes prefects of departments, by order, to "restrict the freedom to go and come people taking advantage of the quality of supporting a team or acting as such on the premises of a sports event and whose presence is likely to cause serious disturbances to public order".
It is also provided that these Orders set out, in the first case, "the duration, limited in time, of the measure, the specific circumstances of fact that motivate it, as well as the communes of departure and destination to which it applies," and in the second, "the duration, limited in time, of the measure, the specific circumstances of fact and place that motivate it, and the territory on which it applies".
Finally, it provides for a sentence of six months in prison and 30,000 euros in fine, in the event of a violation of the said orders.
Applicants can only adhere to the objectives pursued by the legislator to combat the scourge of violence perpetrated during certain sporting events. This is evidenced by the fact that, in none of their appeals filed against previous laws containing "anti-hooligan" provisions, they did not question the said provisions (12). On the other hand, they cannot subscribe to the device in question that goes well beyond what can be justified in the preservation of public order, and which carries in it too important risks to individual freedoms, especially to go and come, because of the imprecision of the provisions in question (1), and the lack of supervision of the administrative police powers thus conferred on the Minister of Interior and the prefects (2).
1. As to the imprecision of the provisions referred to
The Grievors here grieves these provisions not to respect the principle of legality, as set out in Article 8 of the Declaration of Human and Citizen Rights, by its lack of clarity and precision as to the definition of persons likely to be subject to these orders.
That the "constitutional value objective of intelligibility and accessibility of the law" imposes on legislators "to adopt sufficiently precise provisions and unambiguous formulas" in order to "premunerate the subjects of law against an interpretation contrary to the Constitution or against the risk of arbitrariness, without deferring to administrative or judicial authorities the care to set rules whose determination was entrusted by the Constitution 509 only"
But the notion of "people taking advantage of the quality of supporting a team or acting as such" has no equivalent in the Sport code who knows only the "associations of supporters" (L. 332-17), or groupings "of fact having the purpose of supporting a sports association" (L. 332-18).
Thus, this definition would cover not only members of supporters' association or members of de facto groupings, but also any person who supports a football team closely or far – since it is this particular sport that is clearly targeted – regardless of its past or current behaviour, regardless of the threat it poses to public order.
But, in reality, in the absence of a more precise definition, it is any person who will find himself close to a stadium and that the police or gendarmerie will consider as falling within the category of supporter that will fall under the order. Thus the application of these provisions will depend exclusively on the appreciation of the administrative, ministerial, prefectural and police authorities, without any legal guarantee to prevent the risk of arbitrariness in their implementation.
2. The lack of supervision
powers conferred
In addition, the legislator has remained clearly below its jurisdiction, while it is "to exercise fully the powers conferred on it by the Constitution and, in particular, article 34" (2004-500 DC of 29 July 2004, cons. 13). As regards the preservation of public order within the framework of the administrative police, it is for him to "set the rules concerning fundamental guarantees granted to citizens for the exercise of public freedoms" (2010-604 DC of 25 February 2010, cons. 22).
Thus, administrative police measures that may affect the exercise of constitutionally guaranteed freedoms must be justified by a real threat to public order, based on special circumstances that characterize the risk of disturbance to public order in each species (cf. in particular 93-323 DC of 5 August 1993, cons. 9; 2003-467 DC of 13 March 2003, cons. 9; 2010-13 QPC of 9 July 2010 cons. 8).
However, it is not the direct threat to public order that is covered by the contested provisions, nor the fact that the persons in question threaten by objective elements this public order, but their " presence (...) likely to cause serious disturbances to order". This means the margin of appreciation given to the administrative authorities in the absence of a more binding legal framework.
In addition, the legislator referred to these same administrative authorities the task of defining the limits themselves to the exercise of their own police power. These are the only ones who will appreciate the duration of the prohibition or restriction of traffic, without imposing a maximum duration, or even that duration is limited to a strictly necessary time. As well as they will appreciate the perimeter of the restriction of the freedom to go and come which, in the absence of a legal limit, may concern both the immediate surroundings of a stadium and the entire territory of a commune or even a department.
With respect to the particular case of individual travel ban measures, the law does not even provide for the conditions under which the Minister of the Interior's order must be notified to the person concerned; at the risk that the person concerned may fall under the law without having been previously notified.
Generally, if, in accordance with Article 34 of the Constitution, it is the law to set the rules on fundamental guarantees granted to citizens for the exercise of public freedoms, on the other hand, "the implementation of the guarantees determined by the legislator falls within the executive branch," and, within the executive branch, to the Prime Minister who has "the care to ensure the enforcement of the laws and (...) to exercise the regulatory power" (2009-580 DC of 10 June 2009,
In the present case, it would have been necessary, at the very least, that the legislator referred to a decree made in the Council of State the care to determine the modalities for the application of the disputed provisions, and not to leave them at the discretion of the Minister of the Interior or prefects of department.
The lack of clarity in the terms of the law that does not allow sufficient precision to determine the potentially affected persons, linked to this lack of a strict or at least regulatory framework for the exercise of these administrative police prerogatives, pose a serious and real risk to individual freedom.
That is why you will not fail to see that the legislator made a manifest error of appreciation in the conciliation between, on the one hand, the prevention of infringements of public order and, on the other hand, the exercise of constitutionally guaranteed freedoms, which it was to ensure (2005-532 DC of 19 January 2006, cons. 9), to the point of excessively violating individual freedom (93-323).
On Article 90
This provision is intended to authorize the prefect to carry out the forced evacuation of illegal facilities "in a meeting on a land owned by a public or private person with a view to establishing dwellings with serious risks to public safety, security or tranquillity," after an unsuccessful stay for forty-eight hours.
It also provides for the possibility for the prefect to file "the president of the Court of Grand Instance with an application for authorization to carry out the destruction of erected illegal constructions to allow the installation in a meeting on the ground under the evacuation measure".
According to its proponents, this device would only adapt "the procedure applicable to the evacuation of people's mobile homes from illegally parked travel" provided by Act No. 2000-614 of 5 July 2000 to non-mobile dwellings (Report of the National Assembly Law Commission No. 2827, October 2010, p. 156). But the layer is only apparent.
Your high court had the opportunity through a priority constitutionality issue to validate section 9 of the amended 2000 law (2010-13 QPC of July 9, 2010, c. 9). You were thus able to consider that the freedom to go and come was not unrecognized because of a number of guarantees contained in this article, and in particular that:
― evacuation can only be implemented in the event of irregular parking in a manner that affects safety, security or public tranquility;
- it can only be carried out upon request by the mayor, owner or owner of the right to use the land;
– it can only occur after the occupants remain in the place;
― interested persons shall be granted a period of time that may not be less than twenty-four hours from the notification of the stay to spontaneously evacuate illegally occupied places;
― this procedure does not find it necessary to apply to landowners on whom they park;
- it may be challenged by a suspensive appeal before the administrative tribunal.
However, because these guarantees are not fully found in the law referred to you, the applicants consider that the constitutional requirements related to human dignity (1), the guarantee of rights (2), the freedom to go and come, the respect for privacy, the inviolability of domicile (3) and the presumption of innocence (4) are unknown.
1. As for human dignity
The safeguarding of human dignity implies that everyone can enjoy housing, and that more is, decent housing. The legitimate struggle against the replenishment of slums in the Territory could not subtract from the public authorities in general, and the legislator in particular, from that objective which was directly derived from the 1946 Preamble to the Constitution.
Indeed, have you strongly affirmed that the principles set out in the 1946 Preamble, and in particular that of "the safeguarding of the dignity of the human person against any form of degradation", that "the possibility for everyone to have decent housing [was] an objective of constitutional value" (98-403 DC of 29 July 1998, cons. 1-4. Cf. also 2009-578 DC of 18 March 2009, cons. 12).
However, the device here contested, allowing to facilitate the expulsion of people living in conditions that are already uncompliant with human dignity, without any consideration for rehousing, faces the goal of ensuring a decent housing for everyone. It will add precariousness to precariousness.
Indeed, it is necessary to lose sight of the fact that the use of property habitat is directly linked to an increase in exclusion situations by housing, the implementation of the DALO Act No. 2007-290 of 5 March 2007 having been unable to solve this problem with the magnitude of the housing crisis. The 4th Annual Report of 2010 of the Follow-up Committee on the Implementation of the Right to Opposable Housing is alarming in this regard, and concluded in this regard: "The State cannot remain out of the law. »
However, the risk that prefects may resort to accelerated processes of expulsion, derogatory from the common law, for human dignity, thus calls only for your censorship, especially since the guarantee of the rights of persons concerned is not, moreover, sufficiently assured.
2. The guarantee of rights
The appellants recall that, in accordance with Article 16 of the 1789 Declaration, "any company in which the guarantee of rights is not insured or the separation of powers determined has no constitution." From this requirement you have concluded that it prohibited any "substantial infringement of the right of interested persons to exercise an effective remedy before a court" (99-416 DC of 23 July 1999, c. 38, and 2005-532 DC of 19 January 2006, c. 11). As Professor Nicolas Molfessis pointed out, the right to legal recourse was in a way "the right of rights" (13). But that is the guarantee that is missing here.
What justified the removal of the judge's appeal in the amended 2000 Act was the facilities that his provisions were supposed to guarantee in exchange for travellers in terms of reception areas. In the hypothesis that they settled out of these areas when they existed, it did not seem disproportionate to carry out their evacuation without passing by a judge. But in this case, there is no equivalent device.
The applicants consider that the right to appeal to the administrative judge within 48 hours is not sufficient to meet this constitutional requirement.
Indeed, if this remedy is formally available, the reality is that it will be practically ineffective, given the situation of those affected by extreme precariousness and extreme destitution. However, without fear of resorting to tautology, there can be no effective remedy that is indeed. As the European Court of Human Rights has judged, "the appeal required (...) must be "effective" in practice and in law" (Gebremedhin [Gaberamadhien] v. France, 26 April 2007, no. 25389/05, § 53).
Moreover, you do not consider that the existence of an opportunity of appeal is always sufficient to ensure effective compliance with Article 66 of the Constitution. Thus, in relation to the maintenance of non-consensual hospitalization, you have found that "the judicial remedies available to these individuals to have the hospitalization measure cancelled or terminated are sufficient to meet these requirements" (2010-71 QPC of November 26, 2010, c. 25).
In this case, by not providing for a prior intervention by the judicial judge, the legislator, if not de jure at least de facto, has infringed a major infringement on the right of persons concerned to an effective remedy, contrary to the guarantee of rights proclaimed in article 16 of the Declaration of Human and Citizen Rights.
3. As for freedom to go and come, respect
privacy and inviolability of the home
When you validated the new article 322-4-1 of the Criminal Code which punishes, in particular, the "establishment in meeting, with a view to establishing a dwelling in it, even temporary, on a land belonging to (...) to any other owner other than a municipality, without being able to justify his authorization or that of the owner of the right to use the land", you recalled that he belonged to the legislator, by providing for the repression of such breaches, to ensure the conciliation between the constitutional requirements of "prevention of infringements to
However, in contrast to the amended 2000 law, detention and forced evacuation can be carried out here on the sole initiative of the department's prefect, without prior requests from the owner or owner of the right to use the land. In other words, the prevention of breaches of private property is no longer the number of constitutional objectives pursued.
Therefore, once the removal of the judicial judge prior to the evacuation is no longer justified by the pursuit of this objective, it appears that the legislator's conciliation between the preservation of public order and the above-mentioned constitutional requirements is clearly unbalanced at the expense of the second.
Moreover, from the moment when forced evacuation can be ordered without the owner of the premises having requested it, it is his right of property that he is infringed. In this regard, it was important to make the right of opposition recognized by the law effective within 48 hours. However, nothing is provided for in the case that the notification of the stay could not have been assured, and therefore the right of opposition exercised.
However, if it was lawful to legislators "to amend or repeal prior texts by replacing them, if any, other provisions," it could only do so provided that it did not deprive them of "legal guarantees of constitutional requirements", otherwise to enlist your censorship (2010-71 QPC of 26 November 2010, cons. 15). However, by deleting the intervention of the judicial judge and by not sufficiently guaranteeing the right of opposition of the landlord, that is what he did.
4. As for the presumption of innocence
The condition of the activation of the disputed device is, in particular, the "illegal" nature of the facility in question.
Different circumstances make that the occupation of a property may fall under the criminal law, and thus be unlawful.
However, the circumstance referred to in the article here in question, the installation in a meeting on a land owned by a public or private person for the purpose of establishing dwellings, is very close to its drafting of Article 322-4-1 of the Penal Code already cited and which punishes, in particular, the "establishment in meeting, with a view to establishing a dwelling, even temporary, on a land owned by (...) to any other owner Such a facility constitutes an offence " punishable by six months in prison and 3,750 euros in fine."
However, the proximity between the drafting of these two provisions constitutes a clear violation of Article 9 of the 1789 Declaration, under which every man is presumed innocent until he has been found guilty, and of which "in principle the legislator cannot institute presumption of guilt in criminal matters" (2009-580 DC of 10 June 2009, cons. 17).
Yet here, if prosecutions were initiated on the basis ofArticle 322-4-1 of the Criminal Code, following a forced evacuation based on the article 90 here referred to, it is clear that the assessment of the lawfulness to which the prefect should have carried out will cause a real presumption of guilt to be weighed upon the persons eventually prosecuted; the constituent elements that presided over the forced evacuation decision being, in fact, the same as those that presided over a possible criminal prosecution and conviction.
For this reason, this provision also calls for your censorship.
On Article 92
The purpose of this provision is to provide all assistant judicial police officers (JPs) referred to inArticle 21 of the Code of Criminal Procedure the ability to conduct identity checks under section 78-2 of the same code.
This applies to municipal police officers, who are the main objective pursued by law, but also to volunteers serving as military officers in the gendarmerie, security assistants, Paris supervisors and field guards.
In figures – which are unfortunately not accurate enough for lack of an impact study on this point – this means that at the wholesale modo 200,000 judicial police officers (OPJ) and APJ current of the police and the national gendarmerie will be added approximately 50,000 deputy LPAs to carry out identity checks.
The complainants consider that the number of persons authorized to carry out these controls will result in excessive violations of individual freedom. You have taken into account the fact that between 1993 and 2009 the number of civil and military officials with the capacity of judicial police officers had increased from 25,000 to 53,000 and that these developments had "helped the use of custody" (2010-14/22 QPC of 30 July 2010, cons. 17-18). However, there is no doubt that the ability of 50,000 new people to conduct identity checks will also contribute to the banalization of the use of these controls.
It is fundamental in this regard to recall that your high jurisdiction has always paid particular attention to the fact that identity controls are not exercised arbitrarily, and outside the control of the judicial authority.
Thus, you found that if "the prevention of breaches of public order, including breaches of the security of persons or property, is necessary to safeguard principles and rights of constitutional value", on the other hand, "the practice of generalized and discretionary identity controls would be incompatible with respect for individual freedom" (93-323 DC of 5 August 1993, cons. 9). However, as the National Commission for Security Ethics noted by a mild euphemism, "it is not clear that all police officers have always been penetrated by this principle" (14).
In addition, in order to avoid arbitrary control of the offence, you had found that the implementation of the audits so entrusted by law to judicial police authorities should "operate on the basis of objective criteria and by excluding, in strict compliance with the principles and rules of constitutional value, any discrimination of any kind between persons" (93-325 DC of 13 August 1993, cons. 16). And yet, still in its 2008 report, the CNDS recalled that "in particular, it was appropriate to avoid identity checks without cause and fault" (15).
Given the importance of the number of people who would now be entitled to carry out these controls, the risks they become generalized and discretionary, especially when they are operated by persons who have not received the training of the police or the national gendarmerie, are clearly high.
The appellants do not share the opinion of the rapporteur of the Senate Committee of Laws that the fact that the deputy LPAs must act under the responsibility of an OJP would be "securing these controls" (Report No. 517 [2009-2010], p. 156). On the contrary, especially because the mayors have the right to be a judicial police officer.
However, here, the legislator has not taken the same precautions as for the participation of the deputy LPAs in alcohol testing, and thus has not ruled out that the mayors can carry out identity checks in the territory of their commune. We can't imagine the abuses that this could lead to.
Therefore, because the extension of the possibility of conducting identity checks to all deputy LPAs does not offer sufficient guarantees against arbitrary infringements of personal liberty, the applicants ask you to censor this provision.
On Article 101
This provision is intended to authorize an administrative detention extension hearing beyond 48 hours to be held "in" the detention centre.
This "on-site" or "in the walls" justice does not meet the rules of fair trial (1), nor the advertising requirements of the proceedings (2).
1. On fair trial
As you have had the opportunity to judge, "the principle of respect for the rights of defence is one of the fundamental principles recognized by the laws of the Republic reaffirmed by the Preamble to the Constitution of 27 October 1946, to which the Preamble to the Constitution of 1958 refers", and implies "in particular in criminal matters, the existence of a fair and equitable procedure guaranteeing the balance of the rights of the parties". You added, "that in the matter of offences and crimes, the separation of the authorities responsible for public action and the judgment authorities shall contribute to the safeguard" (95-360 DC of 2 February 1995, cons. 5).
However, if the separation of the prosecution and trial authorities contributes to the realization of the fair trial, the separation of the police and trial authorities, but also the separation of places of detention and places of trial.
You validated the provision of Act No. 2003-1119 of 26 November 2003 which had established the possibility that this extension hearing would take place in a specially arranged courtroom close to the place of detention. If you had done so, it was only because the legislator had " expressly provided that the said room must be "specially furnished" to ensure the clarity, security and sincerity of the debates" (2003-484 DC of 20 November 2003, cons. 81). But it was then a room arranged near the detention centre.
However, as the Court of Cassation has ruled, proximity is not promised, and according to its terms, "the immediate proximity required by Article L. 552-1 of the Code of Entry and Residence of Aliens and the Right of Asylum is exclusive of the special layout of a hearing room in the enclosure of a detention centre" (first Civil Chamber, Decision No. 561 of 16 April 2008)
This exclusivity is fundamental. Confronting the court's decision to go to a place exclusively under the police would seriously question the independence and impartiality of justice at the heart of the fair trial. Regardless of the special arrangements that will be made, it remained clear that justice would be rendered at the police premises, which would create legitimate suspicion among the persons concerned. In this field, appearances are essential.
In this regard, you can refer usefully to the jurisprudence of the European Court of Human Rights that, with regard to impartiality, "the court must first demonstrate subjectively no bias or personal prejudice. Then, the court must be objectively impartial, i.e. providing sufficient guarantees to exclude any legitimate doubt in this regard. As part of the objective approach, it is a question of whether, regardless of the personal conduct of the judges, certain verifiable facts allow them to suspect their impartiality. In this matter, even appearances can be of importance. There is trust that the courts of a democratic society must inspire those responsible, starting with the parties to the proceedings. In this matter, "the optic of a party comes into account but does not play a decisive role. The determining element is whether the apprehensions in question can be objectively justified" (Kleyn et al. v. The Netherlands, May 6, 2003, No. 39343/98, 39651/98, 43147/98 and 46664/99, §§ 191 and 194).
However, you will only be able to see that being tried in a police place is, not only in the eyes of the person in question, but in the eyes of all, an objective element in which to create a legitimate apprehension as to the impartiality of the court.
Thus, the disputed provision does not provide, in respect of a fair and fair trial, guarantees equivalent to those whose person would have benefited if the case had been brought before a court outside the premises of the administrative detention centre (cf. mutatis mutandis 2002-461 DC of 29 August 2002, cons. 81).
2. Advertising of the debates
Justice applicable to foreigners cannot be alien to justice. As you have strongly recalled, "if the legislator can make specific provisions for foreigners, it is up to him to respect fundamental freedoms and rights of constitutional value recognized to all those who reside in the territory of the Republic."
Yet among these fundamental rights is the right to public hearing. As indicated by the European Court of Human Rights, the "advertising of the procedure of judicial bodies (...) protects persons against secret justice beyond public control", and "is also one of the means to preserve confidence in courts and tribunals. Through the transparency it gives to the administration of justice, it helps to realize (...) the fair trial" (Axen v. Germany, 8 December 1983, No. 8273/78, § 25).
This advertisement, you are also the guardians. Thus, you considered that it was the result of "the combination of articles 6, 8, 9 and 16 of the Declaration of 1789 that the judgment of a criminal case that could lead to deprivation of liberty must, except in particular circumstances requiring the camera, be the subject of a public hearing" (2004-492 DC of 2 March 2004, cons. 117).
While, as you have already seen in the 2003 law, the legislator has taken care to expressly provide that the judge of freedoms and detention will rule " publicly" (2003-484 DC of 20 November 2003, cons. 81).
But as the rapporteur of the Senate's bills rightly pointed out, "the publicity of hearings, although expressly recalled by the drafting of the article, would be affected in its practical application" (report No. 517 [2009-20 10], p. 173).
In reality, this is a sweet euphemism. In concreteo, this advertisement will be of a purely virtual nature, with regard to access to private places of freedom which, by definition, are necessarily difficult to access. This purely formal guarantee, therefore, does not give the publicity of the proceedings the same guarantee that a hearing would be offered in a place under the sole Ministry of Justice.
Finally, there is no "occupation for good administration of justice" to justify this situation, and even less so, because it is hard to bet that the many presidents of courts who have already refused to sit in the courtrooms located near the detention centres will refuse a fortiori to sit in rooms located within them.
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For all of these reasons, the appellants invite you to censor all of these provisions, as well as all those that you would report on your behalf.
