JORF n ° 0062 March 15, 2011 page 4637 text no. 4 referral of the Constitutional Council dated February 15, 2011 application by at least sixty members, in accordance with article 61, paragraph 2, of the Constitution, and referred to in decision No. 2011-625 DC NOR: CSCL1104898X ELI: not available law of ORIENTATION and of programming for the PERFORMANCE of the security inner Mr. the president of the Constitutional Council , Ladies and gentlemen Members of the Constitutional Council, we have the honour to refer you, in accordance with the second paragraph of article 61 of the Constitution, the Act guidance and programming for the performance of Homeland Security.
On article 1 article 1 of the Act which provides that: the report annexed on the objectives and the means of internal security by 2013 is approved.
You had the opportunity to judge about an equivalent provision, that the "guidelines" presented in the report contained in annex I to the Act brought fall (.) of any of the categories of texts provided by the Constitution and legislative are therefore not coated normative value that attaches to the Act (2002-460 DC on August 22, 2002, cons. 21 see also 2002-461 DC, 29 August 2002, cons. (90) as far, you had considered a time that the provisions of normative (...) cannot (.) be usefully infringing of unconstitutionality (2003-467 DC, 13 March 2003, cons 90).
Then your case law has changed, and you have been obliged to make censorship of certain provisions on the basis of this lack of normative character. So have you censored article 4 of law organic n ° 2004-758 of 29 July 2004 on the financial autonomy of local 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). Similarly is it because you had considered that its provisions were manifestly devoid of any normative scope that you had censored the II of article 7 of law No. 2005-380 of April 23, 2005 and orientation programme for the future of the school (2005-512 DC April 21, 2005, cons. 17).
Thus, according to your case law prior to the constitutional revision of 2008, it would have made no doubt that article 1 of the law that you is here brought would have been censored.
By the constitutional revision of 2008, constituent power inserted a last paragraph in article 34 of the Constitution under the terms of which: programming laws determine the objectives of the action of the State.
But is this to say that, in this case, under the pretext of calling a bill of orientation and programming, the legislature could now ignore the requirements of clarity and intelligibility of the Act also imposed by the Declaration of the rights of man and of the Citzen of 1789?
Because that is what it is here. Indeed, this requirement of normativity of laws, you deducted it from article 6 of the Declaration of 1789 which you have considered that it was the result, as of all other standards of constitutional value relating to the object of the Act that, subject to special provisions established by the Constitution, the law aims to set out rules and shall subsequently be coated with a normative scope (2005-512 DC April 21, 2005 cons. (8) However, this jurisprudence was not the result of any willingness on your part to arbitrarily muzzle Parliament, but responded to the legitimate concern, as indicated in the commentary to the specifications of this decision, condemnation of 'talkative law' (...) justified by the necessity of halting the process of deterioration of the quality of the legislation (book no. 19). This concern o how beneficial, you should give away.
Also is you today decide you on the validity of a provision that clearly has no normative character, under the new drafting of article 34 of the Constitution.
This lack of normative character of article 1 and the report to which it refers must at any least carry a consequence: débaptiser title of programming Law Act.
Indeed, it cannot receive this qualification because, contrary to his predecessor, law No. 2002 - 1094 August 29, 2002 guidance and programming for homeland security, it has no provision programming means of internal security. Yet it was precisely based on this programming that you had accepted the normative value of article 2 of the Act (2002-460 DC on August 22, 2002, cons. 21 cf. mutatis mutandis for means of justice your decision No. 2002-461 DC programming, August 29, 2002, cons. (90) here, on the other hand, the only planned upcoming means appear in tables annexed to the law, not in the body of the Act itself. And, moreover, the only proposed programming is actually only over the years 2012 and 2013. Regarding previous years 2009, 2010 and 2011, therefore fall under laws already voted finance and partly executed, which deprived him of de facto any forward-looking.
On article 4 section 4 of the Act inserts in article 6 of Act No. 2004-575 of 21 June 2004 on confidence in the digital economy after the fourth paragraph of the 7 of the 1 two paragraphs under the terms of which: when the needs of the fight against the dissemination of images or depictions of minors under article 227-23 of the criminal code warrant the administrative authority shall notify the persons mentioned in the 1 to 1 this e-mail addresses of services of communication to the public contrary to the provisions of this article, to which they must prevent access without delay online.
A Decree lays down the procedures for the application of the preceding paragraph, including those that are compensated, if there is place, the resulting additional costs and obligations borne by operators.
This provision aims to allow the administrative authority to require internet service providers (ISP) to introduce their filter system restricting access to internet sites containing images or depictions of minors of a pornographic nature.
It is not with the intention of the authors of the appeal, as evidenced by all of their interventions in committees and meeting, call into question the legitimacy and the urgent need to combat child pornography. But, as legitimate that either yet the objective pursued, this provision is liable however your censorship, both the legislator, to the regret of the claimants, has resorted to means manifestly inappropriate pursuit of this goal (1), while remaining within its jurisdiction, providing not the sufficient guarantees against any with arbitrary freedom of expression protected by article 11 of the Declaration of the rights of man and of the Citzen of 1789 (2).
1. as to the inappropriateness of the means with regard to the objective it is common ground that your High Court lacks a general power of appreciation and decision of the same nature as that of the Parliament (2010-605 of May 12, 2010, cons. 23). But if it is not for you to search if the objectives that will is assigned the legislature could be achieved by other means, it is nevertheless subject to arrangements by law are not obviously inappropriate (99-416 July 23, 1999, cons. 10 DC). So you recently censored operative on the carbon contribution on the ground inter alia that it had total exemption schemes contrary to the objective of combating global warming (2009-599 DC on December 29, 2009, cons. 82). You come in addition to judge that the Solicitors compensation scheme as it was envisaged by the law reform representation before courts of appeal on the ground that it was contrary to the constitutional requirement of proper use publicly (2010-624 DC January 20, 2011, cons. 17).
However from many experts in the fight against cybercrime agree on the fact that, whether it's to prevent access by inadvertence or volunteer at the sites concerned, such filtering child pornography devices are absolutely ineffective, but, on the contrary, they contribute to make even more difficult the Suppression of this scourge, when they do not simply discourage.
The literature on the subject is abundant (1) and usefully illuminate your Supreme Court. The authors of the referral will thus confine themselves to recall the conclusion without invoking the impact of blocking child pornography sites study prepared by the French Federation of telecoms and electronic communications that blocking access to child pornography sites only solutions to prevent unintended access to child pornography content available on the web, and that conversely all blocking techniques , without exception, are woolly and will not prevent malicious users to find parades to access illegal content.
As he could the be raised during the debate in the Senate, you want to block child pornography sites by blocking access to the internet is you want to block airplanes in mid-flight by drawing up roadblocks down (full record of the proceedings of September 8, 2010).
But worse still and always according to the French Federation of telecoms and electronic communications, since blocking will be effective, sites specializing in bypass techniques will multiply, thus significantly reducing the effectiveness of the device.
Or bypass techniques, that they pass through private networks or reinforcement of encryption systems, would all make even more difficult the identification, and so, in the end, the punishment of the criminals responsible for the dissemination of child pornography representations and images. Blocking is therefore not only inadequate, but it is counterproductive.
In this respect, we must remember that intelligence from the United States and the United Kingdom have complained to their french counterparts that the HADOPI law had contributed to the rise of cryptography in Internet users, making it more complicated the fight against terrorism.
It should also be noted that all content distributed on Peer-2-Peer networks or through instant messaging services, escape the perimeter of blocking, then even that, as indicated also the study of the French Federation of telecoms and electronic communications, they are main recorded media for the exchange of child pornography images.
Finally, not happy to be ineffective and even counterproductive, this device will prove to be extremely costly for public finances, since it puts the responsibility of the State the additional cost resulting for ISPs. Extra cost that does not appear in the study of impact of the Bill, but that the French Federation of telecoms and electronic communications has estimated can go up to EUR 140 million. Must also add the cost in human resources for the implementation of the device. Gold there, and without further precision, impact analysis indicates that this task will be very costly in human resources.
Thus, because this measure is manifestly inappropriate and even counter-productive, and it will weigh heavily on the finances of the State, it does neither the necessity requirement listed in article 8 of the Declaration of 1789, or a good use of public money resulting from articles 14 and 15.
(1) cf. in particular a recent European study of October 2009 entitled Internet Blocking. Balancing Cibercrimes Responses in Democratic Societies (http://www.pcinpact.com/media/Internet_blocking_and_Democracy.pdf) and another of 2010 entitled Internet Blocking. Crimes Should be Punished and not Hidden (http://www.edri.org/files/blocking_booklet.pdf).
2. as for the incompetence of the negative of the legislator as you have had the opportunity to indicate this: "under the terms of article 34 of the Constitution, the law lays down the rules relating to civil rights and the fundamental guarantees granted to citizens for the exercise of public freedoms; It is for the legislature to ensure the safeguarding of rights and freedoms constitutionally guaranteed; that he may delegate the implementation of this backup to the regulatory powers, should however determine the nature of the necessary guarantees; that, regarding the freedom of communication, it is up to reconcile, in the current state of techniques and their master, the exercise of this freedom as it results from article 11 of the Declaration of the rights of man and of the citizen, with, on the one hand, the technical constraints inherent in the means of communication concerned and, secondly, the objectives of constitutional value that are the safeguarding of public order ', respect for the freedom of others and the preservation of the pluralistic nature of the socio-cultural currents of expression» (96-378 DC of 23 July 1996, cons. 27).
However you have rightly estimated that internet access is now an integral part of freedom of communication. In your own words, 'in the State current means of communication and with regard to the generalised development of public communication services online as well as to the importance of these services for participation in democratic life and the expression of ideas and opinions, this right includes the freedom to access these services' (2009-580 DC of June 10, 2009 cons. (12) it is well obviously not with the intent of the applicants to claim that access to child pornography sites would report said freedom of communication. On the other hand, they cannot admit that fault of sufficient guarantees by the legislature, the freedom of communication via internet has arbitrary interference on the part of the administrative authorities under the guise of fight against child pornography.
However this risk exists. In the first place because the blocking of content may result in the blocking of a site as a whole. As the impact assessment annexed to the initial Bill, admits "there is a risk to block access to content that are not unlawful because, firstly, of the volatility of the content on the internet and used blocking technique (blocking access to all of a domain then only content is illegal). However there is no technique that allows for sure avoid this phenomenon of overblocking. For example, it is the entire Wikipedia site which England ended up blocked for three days in December 2008 following the attempt of blocking one of the pages of the site which contained an illustration of a pouch of disk representing a nude minor. That is the disproportion between the goal and the achieved result.
But there is a risk of arbitrary interference especially insofar as all filtering will be based exclusively on administrative authorities without having any independent control is provided as to the qualification of the pornographic images or depictions of minors in question as defined in article 227-23 of the penal code.
To avoid this risk, the National Assembly predicted in first reading that this filtering could be done "after approval of the judicial authority.
At first reading, the Senate had removed the control of the judicial authority, but demanded in return that the images or representations of minors should have a "clearly pornographic nature", and that if such was not the case, it would be for the administrative authority to seize the judicial authority.
In the version finally adopted, the text no reference is more the clearly pornographic images in question, or intervention of the judicial authority. In the debate at first reading in the Senate, the rapporteur of the commission of laws had justified the deletion of the reference to the authority judicial, on the grounds that "the proposed provision introduces a scope much more restricted [that the HADOPI law], because it tends not to prohibit the access to the internet, but to prevent access to a site because of its illegal nature" (full record of the meeting of September 8, 2010).
Applicants want to admit that the provision is "smaller" than in the HADOPI law. However, they cannot get to the analysis that the Rapporteur of your decision No. 2009-580 DC of June 10, 2009. That indeed, what matters is not the extent of the restriction, but in your own words, 'the nature of the freedom guaranteed by article 11 of the Declaration of 1789' (cons. 16), freedom about which you had declared that it was a "liberty Basic, even more precious that its existence is one of the essential guarantees of respect for the other rights and freedoms" (94-345 DC of 29 July 1994 cons. (5) as indicated in the commentary to the No. 27 of decision HADOPI 1 specifications, this freedom must be preserved in its 'passive' dimension, both citizen receiving information, as in 'active' dimension, citizen transmitter information.
Moreover, the possibility of filtering can be analysed in a simple measure of administrative police since, as indicated clearly discussions before the two assemblies, it involves an evaluating of the unlawful nature of the images or representations in question, as defined in article 227-23 of the penal code.
One thinks for example at the last exhibition of Larry Clark, which is held at the Museum of modern art of the town of Paris with the contents of some pictures of young teens gave rise to a major controversy. It is obvious that, according to the sensitivities of each, some people see images clearly child pornography, there where others only see that freedom of expression of the artist.
Also, because of the appreciation which calls filtering on the nature of images and representations in question, as well as consequences that this assessment will have on the freedom of communication that you are the custodians, the proposed device could not be left to the discretion of the administrative authority, without incurring your censorship.
On article 11 article 11 for a part codifies the provisions of articles 21, 21-1 and file history (ICST and JUDEX) and serial analysis I of article 23 of Act No. 2003-239 of 18 March 2003 on internal security.
For another part, it extends the scope of these different files: persons that are the subject of an investigation or a statement for research into the causes of death or disappearance of minors for history files; to those that are the subject of an inquiry into "any offence" punishable by five years ' imprisonment for serial analysis files.
It then provides some details on clearing and rectification of the data recorded on background files.
Finally, it establishes a magistrate charged referent, concomitantly with the Prosecutor of the Republic, the monitoring and the update of these two categories of files.
The applicants were aware that you posted the equivalent provisions of Act No. 2003-239 of 18 March 2003 on internal security on the history files in your decision n ° 2003-467 DC of 13 March 2003 of explicit, while as you posted those of Act No. 2005-1549 of 12 December 2005 on the treatment of recurrence of criminal offences concerning serial analysis files in your decision No. 2005-527 DC of 8 December 2005 , but implicitly.
That thus in your decision No 2003 - 467 DC, have held you that the legislature had not infringed the constitutional requirements for "respect for privacy" (cons. 21-27), "the use of treatments for administrative purposes" (cons. 28-35), «criminal law of minors» (cons. 36-38), to "respect for the presumption of innocence" (cons. 39-43), to the "principle of equality" (cons. 44) and 'competence of Parliament' (cons. 45).
You had nevertheless issued five reservations to the constitutionality of this device (cons. 46): ― that the law of January 6, 1978 would apply to the treatments in question (cons. 26);
― that data collected in files will constitute, in each case, an element of the decision taken, under the control of the judge, by the administrative authority (cons. 34), and that they cannot be heard as presenter in question the acquisition of French nationality when it is, the law of right, or the renewal of a residence permit when it is under the Act, of right or when it is commissioned by respect for the right of everyone to lead a life normal family (cons. 35);
― that would decree under Act referred to determine a conciliatory conservation on the one hand, the need to identify the perpetrators of offences and, on the other hand, to find the educational and moral of young offenders rehabilitation (cons. 38);
― any person registered in the file should be able to exercise its right of access and rectification of the data under the conditions laid down in article 39 of the law of 6 January 1978 (cons. 43).
With regard to the identical provisions of the Act which you is here referred, they therefore necessarily call, and a minimum, the same reservations of your Supreme Court.
They called further scrutiny that, since your decisions of 2003 and 2005, occurred a 'change in circumstances' within the meaning of section 23-2 of the amended Ordinance No. 58 - 1067 November 7, 1958 on the organic law on the Constitutional Council which lets submit you a priority of constitutionality, when well even the provision in question had previously declared constitutional in the reasons and disposition in a previous decision (2010-14/22 QPC July 30, 2010). Is nothing to what in the context of a referral, priori, your Supreme Court takes account of such a change of circumstances when it undertakes the review of provisions which are in part identical to provisions that it has previously declared in accordance with the Constitution.
Or, in this case, in a report to the Prime Minister on 20 January 2009 on the control of the STIC (2), the National Commission of computing and freedoms found that "only 17% defendants sheets were accurate" (3). In General, the report highlights that the provisions of the law of 2003 relating to the follow-up and the rectifications of STIC were manifestly ineffective. However, in 2009, it is no less 5.58 million of persons questioned contained in this file, figure an increase of 41% compared to 2001 (4).
It is a fundamental principle enshrined in the 4 ° of article 6 of Act No. 78-17 of 6 January 1978 relative to information technology, files and freedoms ― Act which reminded Joël Boyer, the 'special status' according to your case law "is undeniable" (5) ― and that the data in a file should be "accurate, complete and, if necessary. updates.
Therefore, in the light of this new circumstance, and alarming, that applicants ask you to consider again provisions identical Bill here referred to the Act of 2003 you had, subject, declared in accordance with the Constitution.
On the other hand, some of the new provisions of the Act call otherwise censorship, at least reserves of your high jurisdiction with regard to negative incompetence which has demonstrated the legislator and 'the objective of constitutional value of intelligibility and accessibility of the law' which "imposes to adopt sufficiently precise provisions and non-equivocal formulas" (2004-499 DC of 29 July 2004 cons. (29) it is the case of article 230-8 of the code of criminal procedure as amended by article 11 of the law and distinguishes as closure decisions are "motivated by a lack of charges", and other decisions of no further action.
It is planned that the first subject to a "mention, except if the Attorney of the Republic ordered the erasure of personal data", while seconds 'subject to a mention", but without the possibility for the public prosecutor to order the erasure of personal data.
This plan is perfectly unjustified and totally unintelligible consequently. It would indeed to this most paradoxical result that a person who has benefited from a closure for lack of offense would be maintained on a file of police or gendarmerie without opportunity to be scratched, while that which continues to weigh suspicion might, it, benefit from a removal of these files.
Furthermore, the scope of the last sentence of this provision is nor clear. It provides that: 'Where a decision is the subject of a reference, data relating to the person concerned may be subject to a consultation in the context of administrative investigations provided for in article 17-1 of Act No. 95-73 of 21 January 1995 guidance and security programming'.
However no indication if this accuracy is valid only for the closure decisions referred to in the penultimate sentence of article 230-8, or if it concerns all decisions exonerating a person giving rise to mention referred to in the article. According to the applicants, it is this second interpretation that should be chosen, otherwise "by his excessive character, the administrative use of the files would a"undermine rights or the legitimate interests of the persons concerned"(2003-467 DC of 13 March 2003, cons. 32).
(3) page 26 of the report.
(4) information no. 1548 of the National Assembly, font files report. The challenges of the Republic.
(5) ' files of judicial police and constitutional norms: what jurisdictional?», small posters, May 22, 2003, no. 102.
Article 18 this provision proceeded to a modification of the system of video surveillance as it follows from article 10 of Act No. 95-73 of 21 January 1995 guidance and security programming, and amended by law No. 2006 - 64 of 23 January 2006 on the fight against terrorism.
If part of these provisions remain constant right, others on the other hand bring substantial changes, particularly what they confer on persons deprived of the powers which were previously reserved for public authorities: the extension of the right to shoot some public places on the one hand, the possibility of viewing of images shot by the public authorities on the other.
So II of article 10 of the 1995 law authorizes legal entities of private law to be implemented on the highway a video protection system in order to ensure the protection of the surroundings of their buildings and facilities, in areas likely to be exposed to acts of terrorism or persons particularly vulnerable to risks of assault or theft.
So far, and since the Act of 2006 on terrorism, the possibility for private persons to install video surveillance on the public highway systems was limited to the sole protection of the immediate vicinity of their buildings and facilities (...) in locations likely to be exposed to acts of terrorism.
III of article 10 would allow meanwhile that the viewing of the images be provided by agents of the public authority or the employees of the licensee Corporation of the authorisation or by those of the public operators or private acting on their behalf under a convention. This second hypothesis aims to allow images taken by a public video surveillance system are viewed by agents of private law.
However, in doing so, the legislature has delegated to private individuals the duties inherent to the exercise by the State of its sovereignty missions (1), and disregarded the constitutional requirements related to the protection of individual freedom and privacy (2).
1. about the ignorance of the sovereign prerogatives of the State on the occasion of the review of Act No. 2002-1094 of 29 August 2002 on the orientation and programming for homeland security, you had reminded forcefully that the duties inherent to the exercise by the State of its missions of sovereignty cannot be the subject of a delegation to private individuals (2002-461 DC of 29 August 2002 cons. (8) it is however what here the legislator with the impugned provisions as described above, which lead de facto to authorize individuals to carry out general supervision of the highway.
Does first by allowing legal persons governed by private law to install video surveillance rather than systems in the immediate vicinity, but at the edge of their buildings and facilities in places at risk of assault or theft.
Gold, primo, the term is much less precise than that of immediate first. Secondly, there is a place that is not likely to be exposed to risks of assault or theft. They are particularly perhaps offers a semantic, certainly not legal warranty.
The Minister of the Interior not to also not hid during the debates in the National Assembly by declaring: I wish that the Act clearly indicates that the effectiveness of the systems for video protection requires that it can sweep a wider field than a few meters located in front of the door trade or plant concerned, in the interests of protecting. (full record of the proceedings of the 2nd meeting of February 11, 2010).
The legislature does then by allowing private individuals to proceed with viewing pictures of the public authorities, and thus to participate itself in the monitoring of the highway.
However, as pointed out by the Council of State, the surveillance of the public highway is governed exclusively by administrative police missions. Thus, he found that a contract, which was not limited to [privately] entrust tasks monitoring and guarding buildings and street furniture of the commune and had the effect to ensure a monitoring of public roads in the whole of the common mission, was tainted by illegality in what he wore on the missions of surveillance of the city (commune of Ostricourt (, December 29, 1997, no. 170606).
More generally, and as you have had the opportunity to remind you, video surveillance contributes to the objectives of constitutional value of preservation of public order (94-352 DC January 18, 1995, cons. 4). Similarly that safeguard public order and preventing offences are the definition of administrative police (2005-532 DC of 19 January 2006, cons 5). However it follows your case that administrative police falls within the competence of mayors, prefects (94-352 DC on 18 January 1995, cons. 4), the Prime Minister who has responsibilities of general police which it exercises its own powers and outside any legislative empowerment (2000-434 DC of 20 July 2000, cons. 19) or independent administrative authorities (89-271 DC of 11 January 1990 cons. (3) it cannot however be made by private individuals. In have you judged under about the private sworn officers in the context of the HADOPI law they were not invested the power to monitor or intercept exchanges or correspondence private (2009-580 DC of June 10, 2009, cons. 30).
Therefore, and regardless of the precautions taken by the legislature to oversee this device, he couldn't without incurring your censorship entrust persons deprived of inherent in the administrative police powers.
2. as to the infringement of individual freedom and privacy your jurisprudence is on CCTV than the latter, even if become video protection, is likely to ignore the right to respect for private life which is itself impair individual liberty (94-352 DC January 18, 1995, cons. 3).
However the applicants consider entrusting to private persons with power to supervise as broad as that accorded to public authorities, Parliament disregarded the need to reconcile that it belonged to perform between the preservation of public order and respect for the constitutionally guaranteed freedoms.
In this regard applicants, with the Venice Commission, recalled that the right to respect for private life is not limited to the sphere of the home or intimacy, but also applies in the public space (6). Acceptable interference in a democratic society must therefore be strictly proportionate, or, to use your own words, be appropriate, necessary and proportionate to the objective of prevention pursued (2008-562 DC on February 21, 2008, cons. 13).
Or privatization of surveillance of public space in which it is here method does not meet any of these criteria, except to admit it is necessary that the public power rely henceforth to the private sphere to ensure the protection of its citizens.
It is inter alia because the 1995 legislature demanded the prefectural authority to prescribe all useful precautions, in particular about the quality of the persons responsible for the operation of the video surveillance system or watching the images and on measures to be taken to ensure compliance with the provisions of the Act that you had posted this device including private persons were excluded (94-352 DC on January 18, 1995 cons. (7) in the absence of equivalent guarantees in the text played here, this results in a manifestly excessive infringement on individual freedom and respect for private life that calls your censorship.
(6) European commission for democracy through law, opinion on video surveillance in the spheres of public and private by private operators in the private sphere by public authorities and the protection of the rights of man, study No. 430/2007 8 June 2007.
On article 37 article 23 bis of the Act: "is inserted after article 132-19-1 of the criminal code an article 19-132-2 worded as follows: «Art.» 132 19--2. ― for the offences provided for in articles 222-9, 222-12 and 222-13, at the 3 ° of article 222-14, at 4 ° of article 222-14-1 and article 222-15-1, the sentence of imprisonment cannot be less than the following thresholds: 1 ° 18 months, if the offence is punishable by seven years ' imprisonment;
«2 ° two years, if the offence is punishable by ten years ' imprisonment.
'However, the Court may declare, by a specially reasoned decision below these thresholds punishment or one sentence other than imprisonment into consideration the circumstances of the offence, the personality of its author or integration or reintegration guarantees submitted.'
Offences to which apply this provision are therefore the following: Article 222-9: "the violence leading to mutilation or permanent disability are punished ten years imprisonment and a 150,000 euro fine."
Article 222-12: violence resulting in complete incapacity to work for more than eight days when they are committed against certain persons in certain circumstances or in certain places. It provides a penalty of 7 years when violence is committed with two aggravating circumstances.
Article 222-13: violence resulting in incapacity for work less than or equal to eight days or causing any incapacity for work when they are committed against certain persons in certain circumstances or in certain places. It provides a penalty of 7 years when violence are perpetrated with three aggravating circumstances.
Article 222-14 (3rd): "The violence usual on a minor of fifteen years or on a person whose particular vulnerability, due to his age, illness, infirmity, physical or psychological or a State of pregnancy, disability is apparent", when they "have resulted in a total incapacity for work for more than eight days', are punishable by 10 years imprisonment.
Article 222-14-1 (4 °): "when committed in organized band or ambush, the violence committed with use or threat of a weapon on a police officer, a member of the mounted police, a member of the prison staff or anyone else custodian of the public authority, or on a military or civilian firefighter or an agent of a operator's network of public transport of passengers in the exercise on the occasion of the exercise because of its features or its mission"when they"did not result in a total incapacity for work for more than eight days", are punishable by 10 years imprisonment.
Article 222-15-1: the ambush, "when the acts are committed in a meeting", is punishable by 7 years ' imprisonment.
In these circumstances, the disputed device has to create what is so-called 'penalties floors' sentences that were previously reserved for offences committed in a State of recidivism since law No. 2007 - 1198 August 10, 2007, strengthening the fight against the recurrence of major and minors.
Because the legislature has extended these penalties which should remain exceptional with regard to their impact on civil liberties to offenders, including minors, the applicants consider that constitutional requirements of necessity (1) and individualization of sentences (2), and those relating to criminal law by minors (3), have have not been met.
1. as to the need for sentences floors in accordance with article 8 of the Declaration of the rights of man and of the Citzen of 1789: "the law shall establish penalties strictly and obviously necessary.... ».
Of this, and according to settled case‑law, you deduce that "If the need for the penalties attached to crimes is at the discretion of the legislature", it nevertheless is your responsibility "ensure the absence of manifest disproportion between the offence and the penalty" (2007-554 DC on August 9, 2007, cons. 8).
Or in this case, you won't miss that enforcement of minimum sentences as it is here envisaged is manifestly disproportionate, therefore that they can relate to offenders and offences for which, to be serious, do not have all provided a sufficient degree of particular gravity to justify the severity of the proposed sanction.
The applicants were aware that you had validated the use of this type of punishment as they had been established by the law of 2007 on recidivism, whereas inter alia that article 8 of the Declaration of 1789 "cannot interfere with what the legislator lays down rules ensuring an effective punishment of crimes' (ibid., cons. 13).
But your validation had taken into account the fact that, as regards the new legal re-offending, it was "in itself an objective circumstance of particular gravity" (cons. 10).
Regarding penalties that would now apply to any offender, was there first, and not repeat, you must at least check apply only for offences that are actually a "particular gravity".
It was also the position taken by the commission of the acts of the Senate, and then by the Senate itself, at first and second reading. Thus the commission had initially issued the unanimous opposition to the very principle notice of the minimum penalty applicable to the first, before accepting it, but on the condition of "limit its scope to serious violence punishable by ten years ' imprisonment and involving more than fifteen days ITT" (report No. 214 [2010-2011], p. 37).
However the text finally adopted will be result of floors penal enforcement of offences which have led no ITT, and which it is patent that they are not always of particular gravity.
Thus, in respect of article 222-13 of the penal code, fall within the scope of the floors of 18 months imprisonment penalties minors of 15 years (1 °) which would be involved in a brawl with several (8 °) in a school or at its first (11 °). Similarly would incur a minimum sentence of 18 months the brawl between adults (8 °) intoxicated (14 °) on the platform of a subway or in a station (13 °). And, in both cases, so that no injuries would be regrettable.
Or yet, in these two cases, the floor penalty of 18 months will be greater than the minimum penalty for murder! Since, in accordance with article 132-18 of the criminal code, when it is expected a sentence in time, which is the case for the single murder which is punishable by 30 years of imprisonment, it is pronounced a 'term of imprisonment which may not be less than one year ".
Moreover, in respect of the 4 ° of article 222-14-1, would be incurred sentencing floor of 2 years for those who are caillasse by firefighters after having set fire to an object to draw, though even there would have been no injuries.
This means that the perpetrators of these acts which, however serious they, remained happily without consequences, incur exactly the same minimum punishment as the perpetrator of an act of torture, as the author of an assassination, or that a rapist on accompanied minor of barbarous acts; article 132-18 of the criminal code providing for crimes punishable by life imprisonment "a sentence of imprisonment which may not be less than two years".
Thus, in holding penalties floors equal, or even superior to those prescribed for the most serious crimes, the legislature has committed a manifest error of assessment in the scale of punishments. If the applicants were opposed, and still oppose the device of floors for recidivism sentences, at least could they do grievance to the 2007 legislature to have lack of consistency from this point of view.
This is why you can not miss to see the clearly disproportionate character of the minimum penalty envisaged by this provision, at least when it has the effect to apply to punishable offences a imprisonment less than 10 years, and who have not trained an ITT more than 8 days.
2. as for the individualization of sentences floors it is common ground that the 'principle of individualization of sentences (...) ". follows from article 8 of the Declaration of 1789' (2007-554 DC of August 9, 2007, cons. 13).
It is also true that sentencing floor is not automatic because it is expected that "the Court may declare, by a specially reasoned decision below these thresholds punishment or one sentence other than imprisonment into consideration the circumstances of the offence, the personality of its author or integration or reintegration guarantees submitted".
It is in you based on an identical provision of the Act on the recurrence of 2007 you had judged that it had been "unaffected to the principle of individualization of sentences" (cons. 14).
Provided, that the judge may in a decision of conviction meet the staff member of a sanction of right you did not systematically to confirm compliance with the principle of individualization of sentences. Same Conversely, you judged contrary to the Constitution article 7 of the electoral code which won a failure automatic exercise elective public office for a period of five years, and even that the person concerned could "be, in whole or in part, including immediately relieved of this inability under the conditions defined in the second paragraph of article 132-21 of the criminal code". You had indeed considered that 'this possibility cannot, by itself, ensure compliance with the requirements arising from the principle of individualization of sentences' (2010-6/7 QPC June 11, 2010, cons. 5).
In this case, and for offenders, the applicants consider that the faculty offered the judge not to apply a floor sentence cannot, alone, ensure respect for the principle of individualization of sentences.
The guarantee of this principle is certainly assured, that now applying minimum penalties to offences committed outside as well as recidivism recidivism, that principle has become, not only de facto but also de jure, the exception. That indeed, the legislator has thus, pulse, made freedom the exception and the rule detention.
Also, by extending the device of floors sentences, has Parliament brought excessive and obvious infringement to the principle of individual freedom, which is the result both of the fundamental principles recognized by the laws of the Republic (76-75 DC of 12 January 1977, cons 1), to articles 1, 2 and 4 of the Declaration of the rights of man and the citizen of 1789 (94 - 343/344 DC of 27 July 1994 cons. 3), article 66 of the Constitution, and which requires that freedom is the rule and detention the exception.
3. as to the principles applicable to the right criminal minors applying equally to adults and to minors operative of minimum sentences, the legislator has misunderstood Moreover the basic principle recognized by the laws of the Republic, which requires "the mitigation of criminal liability of minors on the basis of the age, like the need to seek rehabilitation educational and moral offenders children through measures adapted to their age and their personality" (2002-461 DC of 29 August 2002, cons. (26) in fact, while it is true that this principle does not imply that the "binding measures or sanctions should always be avoided in favour of purely educational measures", it nevertheless requires that they are always considered on a priority basis.
In accordance with the international commitments of the France, and in particular article 37 of the Convention on the rights of the child, detention should "be a measure of last resort. And that is the reason why article 2 of Ordinance of 2 February 1945 relating to delinquent children provides that "the juvenile court may impose a sentence of imprisonment, with or without suspension, after have specially motivated choice of the death penalty."
Here again, the legislature reversed the logic that presides over the justice of minor, and which requires that this is not not the freedom that is motivated, but rather the deprivation of liberty.
If you could validate the application of sentences floors to minors (August 9, 2007, cons. 24-26 DC 2007-554), it is only because were juvenile offenders. As has already been indicated, where operative disputed here may if applied to juvenile offenders, for facts that are not a particular severity (7), it goes beyond what the constitutional principles applicable to criminal justice to minors allow.
In this regard, it is not innocuous noted that the rapporteur of the commission of the acts of the Senate itself observed that, "doing the penalty of prison the principle and alternative sentencing the exception for a wide range of offences, including non-recurrence", the article in question "tends to introduce into our law of provisions contrary to the principles underlying criminal law for minors' (report No. 214 [2010-2011] (, p. 43).
For all these reasons, the provisions in question call your censorship.
(7) see supra 1.
On article 38 in 1 ° of article 38 is designed to introduce in article 221-3 of the penal code a provision to extend the ability to pronounce a sentence of 30 years security or a parole when a murder ' has been committed on a magistrate, an official of the national police, a member of the mounted police, a member of the staff of the prison or any other person vested with public authority. on the occasion of the exercise or due to their duties".
You posted the opportunity to pronounce such sentences of safety as well as penalties incompressible in your decision No. 93-334 DC on January 20, 1994 for the murder of minors preceded or accompanied by rape, torture or acts of barbarity (cons. 7).
But so did you fact taking into account two categories of elements that give these crimes a particular gravity: the quality of the victim, of one part, and the circumstances of the assassination, on the other hand.
However, in the present case, it is the only quality of victims which will in implementing our criminal arsenal the most repressive system, and nor the circumstances in which the assassination will be committed, as the Senate had however hoped. In the version adopted by the latter in effect, these sentences was allegedly incurred only if the crime had been committed "in organized band" or ambush.
If applicants have ceased during the debate to condemn with the strongest crimes including against the forces of order, they are not provided to compare the vulnerability of a child less than 15 years, and that of a policeman on weapons. Also consider that, as for minors, the circumstances that precede or accompany the crimes in question should be taken into account.
Conversely, retaining only the quality of victims, and not the circumstances in which the crime was committed, the legislature has failed the consistency of the scale of punishments, and thus introduced penalties disproportionate to the look of the offence committed, contrary to the requirement of necessity as listed in article 8 of the Declaration of 1789 (2007-554 DC of August 9, 2007 cons. (8) for this reason, this provision is liable to your censorship.
Article 41 article 41 is designed to integrate in Ordinance No. 45-174 of 2 February 1945 concerning juvenile delinquency article 8-3 under the terms of which: "the Prosecutor can pursue a minor to the juvenile court according to the procedure laid down in article 390-1 of the code of criminal procedure if further investigations on the facts are not necessary and that investigations into the personality of the minor have been completed where applicable in proceedings brought in the previous six months or a procedure giving rise to a conviction in the previous six months. "It would thus allowed the Prosecutor of the Republic to convene a minor by judicial police officer before the juvenile court. In other words, it is neither more nor less to align again a little more the appearance of minors on the model of the reserved for the major immediate appearance, and short-circuit, in fine, the juvenile court judge.
An approximation of the kind had already been started by Act No. 2007-597 of 5 March 2007 on the prevention of juvenile delinquency which had established the procedure of "immediate presentation before the Court for minors.
For applicants, this extra step in the alignment of criminal law by minors on one of the major is a clear violation of the fundamental principle recognized by the laws of the Republic, which requires that the measures adopted against them are "suited to their age and their personality", and that they are "pronounced by a specialized court or appropriate procedures" (2007-553 DC on March 3, 2007 cons. (9) as you will fail to see indeed, conditions and warranties which led you to validate the procedure for immediate presentation in 2007 are absolutely more fulfilled here.
The only limit to the application of the convening by minors OPJ is here that investigations on the personality of the minor have been carried out within a period of less than six months. In this regard also, taking into account convictions handed down in the past six months is clearly not relevant to know the personality of the minor in question. Because if the conviction is recent, the personality survey may, be very earlier.
The limit, yet at least, that had attempted to introduce the Senate that it should at least be similarity between acts has, meanwhile, been swept aside with a flick of the hand.
So, once this six months condition is completed, these are all minors who may be the subject of this procedure, that they have between 13 and 16 years or 16 years and older, and for all offences, regardless of the quantum of the penalty, gross or not, all without the minimum 10-day period which must be respected in principle, separate the date of the hearing of the juvenile court, and without that neither minor, his lawyer nor his legal representatives can oppose.
However, to validate the device of the 2007 Act, your High Court inter alia noted that: ― the immediate reporting procedure was applicable "to minors aged sixteen to eighteen years of age" (cons. 15);
― "If the quantum of penalties which determines the faculty to use this procedure is lowered, it remains higher than that which affects the use of the immediate appearance for major" (cons. 16);
― "if permitted to proceed with the case without that is respected the minimum period of ten days, it is provided that the minor and his lawyer consent expressly, and were opposed not legal representatives of minors, duly convoked," (cons. 16).
And it is only "in light of all of the precautions taken by the legislature" that you had decided to respect the "constitutional principles of juvenile justice" (cons. 17).
In this regard, and in the absence of similar precautions in this case, you can as well but note that, conversely, the legislature infringed such constitutional principles applicable to juvenile justice.
On article 43 the IV of article 43 of the Act which referred you provides that: "with a view, where appropriate, to capture the president of the general Council pursuant to the first subparagraph of article 222-4-1 of the code of social action and families for the implementation of a parental responsibility contract, the representative of the State in the département or. in Paris, the prefect of police, is informed by the public prosecutor of the Republic of alternative measures to prosecution and to have become final judgments when those measures and judgements concerning offences committed by minors residing in the territory of the Department. "This device thus requires the public prosecutor to systematically publicize to the prefect, and indirectly to the presidents of the Councils, court decisions that are normally inaccessible, except in specifically defined circumstances.
Thus, in accordance with article 776 of the code of criminal procedure, Newsletter No. 2 of the criminal may be issued to the prefects only when they are "seized of requests of public jobs, proposals for honours or bids for invitations to tender of work or procurement or to disciplinary proceedings or the opening of a private school ", as well as requests for approval for permit the finding by minutes of offences in criminal law ' (1 °), and the Chairmen of Councils when they"seized of a request for approval for adoption"(5 °).
But, above all, this will make these persons recipients of information that they could never know also, were empowered to refer to bulletin No. 2 of the criminal, for the reason that, in application of the principle of limited access to information on convictions which are subject minors, article 775 of the code of criminal procedure excludes the inclusion in Newsletter No. 2 convictions under the Ordinance of 1945 (1 °).
It is therefore again an infringement of the constitutional principle of 'mitigation of the criminal liability of minors age' (2007-553 DC on March 3, 2007, cons. 9) that calls your censorship, and this especially as it has to impose a stricter regime for minors to adults who cannot be the subject of such an alert, creating at the same time a breach of equality at the expense of the first.
Article 53 article 53 tends to insert in the commercial code article L. 443-2-1 worded as follows: «the fact, without permission of the producer, organizer or the owner of the exploitation rights of a demonstration sport, cultural or commercial, to offer, to sell or expose for sale, on a network of communication to the public online, tickets or titles of access to such an event to benefit is punished by 15. 000 EUR fine. "It provides further to insert into the same code an article L. 443 - 3 according to which:"legal persons declared criminally liable for the offence defined in article L. 443-2-1 run, also the fine according to the procedures provided for in article 131-38 of the criminal code, the penalties provided for in article 131-39 of the same code. "These provisions have been adopted in disregard of constitutional accessibility and intelligibility of the Act (1) requirements of necessity of sentences (2) and equality before the law (3).
1. as to the accessibility and comprehensibility of the Bill here, these are good and accessibility and the unintelligible that are both involved.
As you pointed out, 'the objective of constitutional value of accessibility' of the Act imposes that citizens have "sufficient knowledge of the standards that apply to them" (99-421 DC December 16, 1999, cons. 13).
You had so deemed contrary to this principle a provision of the electoral code which should apply to the election of senators, on the grounds inter alia that the article in question contained "in title I of book I of the electoral code, whose provisions are not related to this election" (2003-475 DC July 24, 2003, cons. 22).
However, in this case, the impugned provision fits in the commercial code, which only applies to traders or companies, even though the new offence will apply, it, to anyone, individuals or consumers, regardless of its quality.
Moreover, it will take place within the code as a result of article L. 443 - 2 relating to the crime of increasing artificial auctions on a market, by fraudulent means, that has no connection, even indirect, with the new offence in article L. 443-2-1.
The lack of intelligibility, meanwhile, comes from that the offence will be established if the person resells a ticket "to make a profit.
So far, and in application of the law of June 27, 1919, on the Suppression of the traffic of theater tickets, it is the sale of tickets 'at a price higher than fixed and displayed in the theatre and concerts subsidized or advantaged' which was sanctioned, in other words, resale at a price higher than the face value of the ticket.
Here, it is the only benefit which is covered. A concept which you will not fail to see that it is especially blurry, and too extensive in scope.
Fuzzy, because this formulation has no legal meaning other than accounting law, and it implies that the sale could fall under the Act, even though it would be at a price lower than the face value of the ticket.
Extensive, because it would prohibit, de facto, to anyone who would have been offer a concert place to resell, since, even at a tiny price, it will provide a profit.
As intermediate legal persons, i.e. resale on the internet platforms, they will be punished for having exposed the tickets concerned, even though they have no way to verify whether the proposed offer is greater than their face value, and even less if it involves the existence of a "benefit".
It is therefore obvious that the hardware element that is at the heart of this offence, share its vagueness will not, as well as moral individuals, 'exclude arbitrary in the imposition of sentences' or 'avoiding unnecessary strictness when searching for offenders' (2006-540 DC of 27 July 2006, cons. 10).
In addition, because it will allow of prosecuting and convicting those same people, though even they would have had no fraudulent intent, this device does define with sufficient precision the intentional element of the offence, even though 'the definition of criminality, in tort, must include, in addition to the material element of the offence, the element moral, intentional or not, it' (99-411 DC of June 16, 1999 cons. (16) 2. On the necessity of the penalties if the need for the penalties attached to crimes of the discretion of the legislature, it is your responsibility however, with regard to freedoms constitutionally guaranteed control "that attacks on the exercise of these freedoms are appropriate, necessary and proportionate to the objective of prevention" (2008-562 DC on 21 February 2008, cons. 13).
As regards natural persons, the constitutionally guaranteed freedoms at issue here are those of the exercise of their right of property (90-287 DC on 16 January 1991, cons. 22), and of their contractual freedom (2001-451 DC of 27 November 2001, cons. 27).
As regards legal persons, this is their freedom to undertake that is here infringed (81-132 DC January 16, 1982, cons. 16).
The exercise of the right to property is constitutionally guaranteed in its three components: the usus, the fructus and the abusus. Do you have judged that "to dispose freely of its heritage" was "an essential attribute of the right of ownership" (98-403 DC of 29 July 1998, cons. 40).
However, an entry ticket or a title of access constitutes property which the owner must, in principle, have freely, unless particular public interest grounds.
In this case, the measure is suitable for any of the grounds raised by the legislature, be it the fight against hooliganism, the fight against the sale of counterfeit notes, or even the preservation of the image of the organizers. Regarding the latter, the applicants doubt also that might constitute an any reason of general interest such as the legislator should be the protector, and which would be such as to justify an infringement of rights also constitutionally guaranteed.
On the other hand, if it was resale on the internet who was actually at the origin of the referred public order disturbances, then it's resale itself which ought to be sanctioned. Gold here, as applicants (8) have already pointed out, isn't the resale as such which is concerned, but the resale "to make a profit. In other words, with the chosen device, there will be always as banknotes in circulation, but at a more reasonable price, which therefore, paradoxically, could aggravate unrest that proponents of this provision is intended to prevent.
Inappropriate so the punishment is manifestly disproportionate. Consider to punish with 15 000 euro fine a young man who cannot attend a concert, will have had there the opportunity to earn some pocket money by selling his ticket with a small profit is strictly speaking perfectly unreasonable.
It is because this resale has been harmful to anyone. Not to the buyer who will be freely bought the ticket. Not to the organizer with the ticket had been sold at the price it had itself set. Not on the public agenda to which such an operation can affect as such. Also, neither the principle stated in article 4 of the Declaration in 1789 that the "freedom is to be able to do everything that does not harm others", nor that enshrined in article 5 that the "Act has the right to defend that actions harmful to the society», here met.
Disproportion appears all the more obvious in the hypothesis already mentioned by the applicants (9) where one who was offered a place free of charge and who cannot attend a show cannot under any circumstances resell, albeit with its priced facial, without falling within the scope of the Act.
As for internet sales platforms, does provide that they can be sentenced to a fine five times greater than € 15,000, and as many times that a sale will be completed on their site, but also be sentenced to a close final, is also manifestly disproportionate. Because, in fact, as already noted by the applicants (10), said corporations are unable to check the face value of the tickets that are the subject of a transaction on their website, nor still less to check if the seller has actually earned profits. For them, the punishment is actually automatic once a transaction has been completed through them.
(8) see supra 1.
(9) see supra 1.
3. with regard to equality before the law
It is common ground that if the principle of equality of the law listed in article 6 of the Declaration of 1789 "does preclude the legislature rule differently different situations, or that it derogates from equality for reasons of general interest', it is"provided that, in either case, the difference of treatment resulting either in direct relation to the object of the Act that establishes"(2010-101 QPC's February 11, 2011 cons. (4) it is here manifest that the law, with only the resale of tickets on a "communication to the public online network", creates a difference in treatment between those who will resell a ticket on an internet site dedicated to this type of operations, and those who, for example, to resell a ticket using the service of a magazine classifieds.
Yet, this difference cannot be justified by any difference of situation. It is although there of the same transaction, only the media is different. Thus the resale at profit would be banned on the internet — and yet, not on entire internet since Peer-2-Peer Exchange networks are not covered — while it would continue to be permitted through classified ads (11). Then measure the incongruity of the process.
This difference in treatment also has no connection with the object of the Act, the risk of disturbances to public order relied on by the legislator being exactly the same, that the tickets have been purchased over the internet or that they have been through Classifieds paper.
Also, and all of these reasons, the provision that you is here deferred still calls your censorship.
(11) subject to the provisions of the law of June 27, 1919, on the Suppression of the traffic of theater tickets.
On article 58 article 58 is intended to replace the second paragraph of article l. 2241-2 of the code of transportation by three well written paragraphs: "If the offender refuses or expresses unable to prove his identity, the agents referred to in the first subparagraph of article 529-4 of the code of criminal procedure II notify without delay and by any means a territorially competent judicial police officer. ''
"For the time necessary to the information and the decision of the officer of the judicial police, the offender is required to remain at the disposal of an agent referred to in the first paragraph of the same II.
"On the order officer of judicial police, officers can bring the offender before him or else hold him the time required upon arrival or a judicial police officer acting under his control."
Current second paragraph of article l. 2241-2 of the code of transportation is prepared in these terms: "If the offender refuses or is unable to prove his identity, these agents notify without delay and by any means a territorially competent judicial police officer. '' On the agenda, the agents referred to in the first subparagraph of article 529-4 of the code of criminal procedure II may be authorized to retain the offender the time strictly necessary to the arrival of the judicial police officer or, as appropriate, to drive immediately before him. "On the bottom, and in appearance, the powers granted to the sworn officers of the operator of the service of transport referred to 4 ° of article l. 2241-1 of the code of transport referred to in article l. 2241-2 are not changed: power to prevent an officer of judicial police; power to retain the offender; and power to an OPJ.
What, on the other hand, is radically changed, what are the guarantees offered to the person concerned that the time in which it can be so deducted against her will be as short as possible. Indeed, the duty of care to not being able to remember the offender only 'strictly necessary on arrival time' of the criminal or that he be brought before him "on the fly" has been removed.
However, by framing insufficient time during which the offender may be retained by the transport agents, the legislature remained below its jurisdiction, and thus deprived of legal guarantees protecting constitutional requirements of individual freedom, and particularly the freedom to come and go.
It is indeed in a constant way of your jurisprudence that it is the responsibility of the legislature to clarify the limits imposed on the competent authorities to avoid any "unnecessary rigor while searching for offenders" (2010-604 DC on February 25, 2010, cons. 8).
Thus it should "to ensure reconciliation between, on the one hand, the prevention of attacks on public order necessary for the safeguarding of rights and principles of constitutional value, and on the other hand, the exercise of the constitutionally guaranteed freedoms", which include individual freedom, and particularly the "freedom to come and go (2008-562 DC on 21 February 2008, cons. 13).
And is it is open "to adopt new arrangements which he must appreciate the opportunity for the realization or the reconciliation of objectives of a constitutional nature," at any time, this is only on the strict condition that the exercise of this power does not lead "to deprive of legal guarantees of the constitutional requirements" (99-416 DC of 23 July 1999, cons 6 and 10).
Also, because the possibility for transport agents to retain a person against his will must meet all of these constitutional requirements, it must be appropriate, necessary and proportionate (February 21, 2008, cons. 13 DC 2008-562), it must be able to be made in the time strictly required for the realization of the reasons justifying the, and not be left to the discretion either of the OPJ , either the agents in question.
However, not sufficiently restricted manner limiting the time during which persons may be retained by the agents or pipes before the OPJ for verification of their identity, the legislature left here room for manoeuvre too important to these authorities and thus deprived of legal guarantees the constitutional requirement of freedom to come and go (80-127 DC of 20 January 1981 cons. 58 and 93-323 CD August 5, 1993, cons. (9) this is why you also censurerez this provision.
On articles 60 and 61 article 60 introduced an article L. 332-16-1 in the code of sport which allows the Minister of the Interior, by order, to "prohibit the individual move or collective of persons availing themselves of the quality of support a team or behaving as such on places of a sporting event and whose presence is likely to cause serious disturbances to public order".
Article 61, introduced an article L. 332-16-2, in the same code, which authorizes prefects of departments, by order, to "restrict freedom to go and come from availing themselves of the quality people to support a team or behaving as such on places of a sporting event and whose presence is likely to cause serious disturbances to public order".
It is also expected that these orders set out, in the first case, "length, limited in time, measurement, the precise circumstances of fact which it is based, as well as the municipalities of point of departure and destination to which it applies", and in the second, "the term, limited in time, the extent, the specific circumstances of the case and place which it is based ", as well as the territory in which it applies.
Finally, it provides a penalty of six months imprisonment and 30,000 euro fine, breach said arrested.
Applicants may only accede to the objectives pursued by the legislator to combat the scourge of violence at some sporting events. Evidenced by the fact that in any of their appeals lodged against the previous laws containing provisions «anti-hooligan», they did put in issue those provisions (12). They cannot subscribe in contrast to operative here in issue that goes well beyond what can justify the preservation of public order, and that carries with it too important to individual freedoms risk, especially to go and come, because of the imprecision of the provisions in question (1), and the lack of supervision of the powers of administrative police thus conferred on the Minister of the Interior and the prefects (2).
(12) see the previous remedies against Act No. 2003-239 of 18 March 2003 on internal security, Act No. 2006-64 of 23 January 2006 on the fight against terrorism and Act No. 2010-201, March 2, 2010, strengthening the fight against the violence of groups and the protection of persons responsible of a public service mission. And the lack of recourse against Act No. 2006-784 of 5 July 2006 on the prevention of violence at sporting events.
1. as to the vagueness of the referred provisions the applicants here grievance to these provisions do not respect the principle of legality as enshrined in article 8 of the Declaration of the rights of man and of the citizen, by its lack of clarity and precision with respect to the definition of persons likely to be covered by the orders in question.
That indeed the 'objective of constitutional value of intelligibility and accessibility of the law' imposes on the legislature "to adopt sufficiently precise provisions and non-equivocal formulas" to "protect the subjects of law against an interpretation contrary to the Constitution or the risk of arbitrariness, without postponing the care rules whose determination has been entrusted by the Constitution to act on administrative or jurisdictional authorities" (2004-509 DC of 13 January 2005 cons. (25) the notion of 'persons availing themselves of the quality of support a team or behaving as such' has no equivalent in the code of sport which knows only 'supporters associations' (L. 332 - 17), or the groups "actually aimed at support for a sports association" (L. 332 - 18).
Thus, this definition covers not only the members of association of supporters or members of groupings of fact, but also anyone who supports near or far a team of football — since it is this particular sport which is clearly covered ― and this regardless of his behavior past or current own, regardless of the threat to public order.
But, in reality, in the absence of more precise definition, is any person who will be near a stadium and police or gendarmerie forces will consider as falling under the category of support which will fall within the scope of the order. Thus the application of these provisions would depend exclusively upon assessment of administrative, departmental, prefectural and police authorities, without having any legal guarantee Vienna guard the risk of arbitrariness in their implementation.
2. as to the lack of supervision of the powers conferred in addition, Parliament has remained clearly within its jurisdiction, so that lies upon him "to fully exercise its jurisdiction that he says the Constitution and, in particular, article 34" (2004-500 DC of 29 July 2004, cons. 13). That as regards the preservation of public order in the context of the administrative police, it is thus "to impose the rules concerning the fundamental guarantees granted to citizens for the exercise of civil liberties" (2010-604 DC on February 25, 2010, cons. 22).
Thus, likely to affect administrative police measures the exercise of constitutionally guaranteed freedoms must be justified by a real threat to public order, based on special circumstances characterizing the risk of disturbance of public order in each species (cf. including 93-323 DC of 5 August 1993, cons 9; 2003-467 DC of 13 March 2003, cons 9; 2010-13 July 9, 2010 cons QPC. 8).
However, this is not the direct threat to public order is covered by the impugned provisions, nor the fact that the persons involved threaten by objective factors that public order, but their "presence (...)". likely to cause serious disturbances on the agenda ". That is the margin of appreciation thus granted to the administrative authorities in the absence of a more binding legal framework.
In addition, Parliament referred to those administrative authorities to define the limits to the exercise of their own power to police themselves. Thus they who only appreciate the duration of the prohibition or the restriction of movement, without that it cannot be imposed on them a maximum, or even this duration is limited to a strictly necessary time. Similarly what are they who will appreciate the scope of the restriction of the freedom to come and go which, in the absence of legal limit, may also well concern the immediate vicinity of a stadium, as the whole territory of a municipality, or even of a Department.
With regard to the particular case measures of individual travel bans, the law does even not the conditions in which the order of the Minister of the Interior must be notified to the person; the risk for the latter to fall within the scope of the Act without having been previously notified.
Generally, if in accordance with article 34 of the Constitution Act, lay down the rules concerning the fundamental guarantees granted to citizens for the exercise of public freedoms, however "in implementing the guarantees defined by the legislator is the Executive", and, in the Executive Branch, the Prime Minister who has ' the care to ensure enforcement of the laws and (...). exercising the regulatory power "(2009-580 DC of June 10, 2009, cons. 33, and 2003-485 DC of 4 December 2003, cons. 31-35).
In this case, it had therefore been necessary, at the very least, the legislature returned to a decree in Council of State care to set detailed rules for the application of the provisions impugned, and not leave it to the discretion of the Minister of the Interior or the Department prefects.
The lack of clarity in the terms of the Act which do not allow to determine with sufficient precision the persons potentially concerned, associated with the absence of strict or at least regulatory framework on the exercise of these prerogatives of administrative police, pose to individual freedom to come and go a real and serious risk.
This is the reason why you won't miss to see that the Parliament committed a manifest error of assessment in the reconciliation between, on the one hand, the prevention of public order and, on the other hand, the exercise of the constitutionally guaranteed freedoms, it ought to ensure (2005-532 DC of 19 January 2006, cons. 9) at the point of wear an infringement of excessive individual freedom (93-323 DC of 5 August 1993 cons. (16) on article 90 this provision is intended to allow the prefect to the forcible evacuation facilities illicit "in a meeting on land owned by a public entity or private establishing homes with serious risks for safety, security or public peace", after a bet is unsuccessful for 48 hours.
It also provides the opportunity for the prefect to enter "the president of the tribunal de grande instance of an application for authorisation to proceed with the destruction of the illegal constructions built to allow installation in a meeting on the ground covered by the measure of evacuation".
And after its promoters, this device would be content to adapt "the procedure for evacuation of mobile homes of travellers illegally stationed" laid down by Act No. 2000-614 of 5 July 2000 in non mobile homes (report of the commission of the acts of the National Assembly no. 2827, October 2010, p. 156). However, the layer is only apparent.
Your high jurisdiction had the opportunity through a priority issue of constitutionality to validate article 9 of Act of 2000 amended (2010-13 QPC July 9, 2010, cons. 9). So you have to consider that the freedom to come and go was not unrecognized due to a number of safeguards contained in this article, and in particular that: ― the evacuation can be implemented only when parking illegally likely to infringement to safety, security or public peace.
― It can be conducted only on request of the Mayor, the owner or the holder of the right of use of the land;
― It can occur only after formal notice of the occupants to leave.
― interested parties enjoy a period which cannot be less than 24 hours from notification of the formal notice to spontaneously evacuate occupied illegally;
― This procedure is to be applied to persons owners of the land on which they were stationed.
― It can be challenged by a suspensive appeal to the administrative tribunal.
However, because these warranties are not fully in the law that you is here referred, the applicants consider that are ignored constitutional requirements related to human dignity (1), the guarantee of rights (2), the freedom to come and go, respect for privacy, the inviolability of the home (3) and the presumption of innocence (4).
1. as for human dignity the safeguarding of human dignity implies that everyone can benefit from housing, and more importantly, to decent housing. The legitimate fight against the reconstruction of slums in the territory cannot subtract the public authorities in general and Parliament in particular, to this objective which stems directly from the preamble to the 1946 Constitution.
Indeed, you said forcefully that it was clear from the principles enshrined in the preamble of 1946, in particular that the safeguard of the dignity of the human person against any form of degradation, that "the opportunity for a person to have decent housing was an objective of constitutional value" (98-403 DC of 29 July 1998, cons. 1-4 see also 2009-578 DC March 18, 2009, cons. (12) the device disputed here, to facilitate the expulsion of persons already living in conditions little consistent with human dignity, with no consideration for rehousing is provided, struck front the objective of ensuring the provision of decent housing to each. It will add poverty to poverty.
As indeed, it by losing sight that the fortune habitat use is directly linked to an increase in situations of exclusion through housing, implementing Act DALO No. 2007-290 of 5 March 2007 being unable to solve this problem with regard to the extent of the housing crisis. The 4th annual 2010 report of the follow-up Committee for the implementation of the right to housing enforceable is alarming, and concluded in these terms: "The State cannot remain outside the law."
The risk however the opportunity given to the prefects to processes accelerated deportation, derogating from the common right of human dignity so called him alone your censorship, and especially as the guarantee of the rights of persons concerned is not, on the other hand, sufficiently ensured.
2. with regard to the guarantee of the rights the complainants recall that, in accordance with article 16 of the Declaration of 1789 "any company in which the guarantee of rights is not assured, nor the separation of powers defined, has no constitution. This requirement you deducted in that it prohibited any "substantial impairment of the right of interested parties to exercise an effective remedy before a court" (99-416 July 23, 1999, cons. 38 DC, and 2005-532 DC on January 19, 2006, cons. 11). As could raise it Professor Nicolas Molfessis, the right to judicial remedy is somehow "the right to rights" (13). Now it is this warranty which is lacking here.
Which justified the ouster of recourse to the judge in the Act of 2000 amended was the facilities that its provisions were supposed to guarantee in Exchange for the travellers in terms of reception areas. In the hypothesis where the latter settled outside these areas when they existed, it did not seem disproportionate to their evacuation without going through a judge. But in this case, there is no equivalent device.
The applicants consider that the right to appeal the administrative judge within 48 hours is not sufficient to comply with this constitutional requirement.
Indeed, if this remedy is formally available, the reality is that it will be virtually ineffective, given the situation of persons characterized by an extreme hardship and extreme poverty. However, without fear of recourse to a tautology, it cannot be any effective remedy that is effective. As has been judging the European Court of rights of man, "the remedies required (...)". must be "effective" in practice as in law' (Gebremedhin [Gaberamadhien] v. France, 26 April 2007, no. 25389/05, § 53).
You also do not assume that the existence of a right of appeal is always sufficient to ensure effective compliance with article 66 of the Constitution. So you judge, about the continued hospitalization without consent, that 'the judicial remedies available to these people to terminate or cancel the measure of hospitalization are enough to meet these requirements"(2010-71 QPC November 26, 2010, cons. 25).
Or in this case, by providing no prior intervention of the judicial judge, the legislator has, otherwise de jure or de facto is a major infringement of people interested in a remedy effective, contrary to the guarantee of the rights proclaimed in article 16 of the Declaration of the rights of man and of the citizen.
(13) the Constitutional Council and the private right, LGDJ, Paris, 1997, p. 238.
3. with regard to the freedom to come and go, respect for privacy and the inviolability of the home when you posted new article 322-4-1 of the penal code which punishes including "does to settle in meeting, with a view to establishing a dwelling, even temporary, on land owned by (...) any owner other than a municipality, without being able to justify its authorisation or the holder of the right of use of the land', you mentioned that it belonged to Parliament, providing for punishment of such violations, to ensure the balance between the constitutional requirements of "prevention of violations of the right to property and public order" and "the exercise of the constitutionally guaranteed freedoms." which include the freedom to come and go, respect for privacy and the inviolability of the home"(2003-467 DC of 13 March 2003, cons. 70).
However, in contrast to the amended law of 2000, the formal notice and the forced evacuation can be conducted here at the sole initiative of the departmental prefect, without that not him have been previously requested by the owner or the holder of the right of use of the land. In other words, the prevention of damage to private property is no longer with the numbers of the constitutional objectives.
Also, since the ouster of recourse to judicial judge prior to the evacuation is no longer justified by the pursuit of this objective, it appears that the conciliation that has operated the legislature between the preservation of public order and the above constitutional requirements is clearly unbalanced, to pay the costs seconds.
Moreover, at the moment the forced evacuation could be ordered unless the owner of the premises did the request, it is its property right that is infringed. It had imported in this regard to make effective the right of opposition that recognizes it the act within 48 hours. However, there is provision in where notification of the formal notice will have to be ensured, and therefore the right to opposition exercised.
However, is it was open to the legislature "to modify previous texts or repeal them, by substituting, where appropriate, other provisions", it could not do so unless you do not deprive "legal guarantees of constitutional requirements", if not to incur your censorship (2010-71 QPC November 26, 2010, cons. 15). However, by eliminating the intervention of judicial justice and not sufficiently guaranteeing the right of opposition of the owner of the premises, it is what he did.
4. as to the infringement of the presumption of innocence the status of the disputed triggers lies especially in "illegality" of the installation in question.
Different circumstances are that the occupation of a property may fall under the criminal law, and therefore be illegal.
However, the circumstance referred to in article at issue here, the installation in meeting on land owned by a public entity or private toward homes, is very close in the wording of article 322-4-1 of the penal code already cited and which punishes such "settle in meeting, establishing a dwelling, even temporary. on land owned by any owner other than a municipality, (...) without being able to justify its authorisation or the holder of the right of use of the land. Such an installation is an offence "punishable by six months imprisonment and a 3,750 euro fine.
However the proximity between the drafting of these two provisions constitutes a clear violation of article 9 of the Declaration of 1789, under which every man is presumed innocent until he has been found guilty, and that it "follows that in principle the legislature cannot impose presumption of guilt in criminal matters' (2009-580 DC of June 10, 2009 cons. (17) yet here, if proceedings were initiated on the basis of article 322-4-1 of the penal code, following a forced evacuation based on article 90 referral here, it is clear that the assessment of the legality which had make the prefect will burden the eventually accused persons a real presumption of guilt; the components that have presided over the decision to escape forced, in fact, the same ones who co-chaired a possible prosecution and conviction.
For this reason also, this provision calls your censorship.
Section 92 this provision aims to give all of the judicial police (APJ) assistants referred to in article 21 of the code of criminal procedure the faculty to carry out identity checks in accordance with article 78-2 of the code.
It therefore concerns police officers municipal, which is the main objective of the Act, but also the volunteers serving as a soldier in the gendarmerie, security assistants, officers from Paris and rural guards.
In numbers — which are unfortunately not accurate enough lack of impact assessment on this point — this means that roughly 200 000 judicial police officers (OPJ) and current APJ police and national gendarmerie will be added about 50 000 APJ Assistant position to carry out identity checks.
The applicants consider that this surge in the number of persons authorised to carry out these checks will carry excessive attacks on individual freedom. Yourself have taken account of the fact that between 1993 and 2009 the number of civilian and military officials who are the judicial police officer was from 25 000 to 53 000 for then found that these developments had "contributed to trivialize the use of custody" (2010-14/22 QPC July 30, 2010, cons. 17-18). However, there is not doubt that the capacity offered in a swoop to 50,000 new people to carry out identity checks it will also contribute to the trivialization of the use of these controls.
It is essential in this regard to recall that your high jurisdiction always paid special attention to what identity checks are not exercised arbitrarily, and out of the control of the judicial authority.
So you judge that if 'the prevention of offences against public order, including crimes against the security of persons or property, is necessary to safeguard principles and rights having constitutional value", on the other hand,"the practice of widespread and discretionary identity checks would be incompatible with the respect of individual freedom"(93-323 DC August 5, 1993, cons. 9). However, as noted by the National Commission of ethics of security through a no-brainer, "it is not clear that all police officers have always been intruded this principle" (14).
Furthermore, to avoid arbitrary controls facies, you had ruled that the implementation of audits thus entrusted by law to the judicial police authorities should "operate relying exclusively on objective criteria and, in strict respect for the principles and rules of constitutional value, excluding any discrimination whatsoever whether between persons ' (93-325 DC of 13 August 1993 cons. (16) and yet, still in its 2008 report, the NSDC reminded that should in particular "to avoid identity without cause and facies checks" (15).
Given the importance of the number of people who would now be empowered to carry out these checks, risk that they become widespread and discretionary, especially when they are operated by individuals who have not received the training of the police or the gendarmerie national, is thus manifestly high.
The applicants do not share the opinion of the rapporteur of the commission of the acts of the Senate that the fact that the APJ assistants must act under the responsibility of an OPJ would "secure controls" (report No. 517 [2009-2010], p. 156). Same, particularly because mayors have right the quality of judicial police officer instead.
However, here, the legislature did not have the same precautions that for the participation of Deputy APJ to alcohol screening, and thus not excluded that mayors can expedite the territory of their common identity checks. We dare not imagine the abuse to which it could give rise.
Also, because the extension to all APJ assistants the possibility to carry out identity checks does not adequate safeguards against arbitrary abuses to individual freedom, the applicants ask censorship of this provision.
(14) report of the commission for 2008, in which she devotes a study on the conduct of the security forces in the presence of minors (p. 54).
On article 101 this provision seeks to authorize that the hearing for an extension of a measure of administrative detention beyond 48 hours has held 'in the bosom"of the detention centre.
This justice "on the spot" or "within the walls" satisfied the rules of fair trial (1), nor the requirements of publicity (2).
1. with regard to a fair trial as you have had the opportunity to judge, "the principle of respect for the rights of the 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, referred to in the preamble to the Constitution of 1958," and involved "in the criminal, the existence of a fair and equitable procedure ensuring the balance of the rights of the parties". You add "that offences and crimes, the separation of public action and judgment authorities authorities contributes to the backup" (95-360 DC on 2 February 1995, cons. 5).
However, if the separation of prosecution and trial authorities contributes to the implementation of a fair trial, it is a fortiori of separation of authorities police and judgment, but still of the separation between the retention and the places of judgment.
You have validated the provision of Act No. 2003-1119 of 26 November 2003, which had established the possibility that this extension hearing takes place in a specially fitted courtroom in the immediate vicinity of the place of retention. If you did, it is only because the legislature had "expressly provided that said room must be"specially equipped"to ensure clarity, security and the sincerity of the debates ' (2003-484 DC of 20 November 2003, cons. 81). But it was a room 'close' to the detention centre.
However, as in found the Court of cassation, proximity is not promiscuity, and in his words, "the proximity required by article L. 552 - 1 of the code of entry and stay of foreigners and asylum is exclusive special planning of a courtroom inside of a detention centre" (first Civil Chamber, judgement No. 561 of April 16, 2008).
This exclusivity is fundamental. Impose on the contrary to the tribunal to visit a place governed exclusively by police would put seriously questioned the independence and impartiality of the judiciary which are at the heart of a fair trial. Regardless of the special arrangements that will be made, he only remained no less that justice will be rendered in the premises of the police, which will be likely to create a legitimate suspicion among the persons concerned. However, in this area, appearances are essential.
Guests in this regard can usefully refer to the jurisprudence of the European Court of the rights of man that, with regard to impartiality, "must be firstly that the Court manifested subjectively no party taken or prejudged staff.» Then the Court must be objectively impartial, i.e. to offer sufficient guarantees to exclude any doubt legitimate in this regard. Under the objective approach, it's to ask if, irrespective of the personal conduct of judges, some verifiable facts allow to suspect the impartiality of the latter. In this area, even appearances can be important. It is the confidence that the courts of a democratic society must inspire to litigants, starting with the parties to the proceedings. "In this matter,"the perspective of a party between account online but does not play a decisive role. The decisive factor is whether the fears in question can pass for objectively justified"(Kleyn et al. v. Netherlands, may 6, 2003, n ° s 39343/98, 39651/98, 43147/98 and 46664/99, §§ 191 and 194).
However you will be able to say that to be tried in a police room is, not only in the eyes of the person concerned, but in the eyes of all, an objective element such as to give rise to a legitimate misgivings about the impartiality of the tribunal.
Thus, the impugned provision does - it not, with respect to the fulfilment of a fair trial, of guarantees equivalent to those which the person would have received if the case had been brought before a court outside the premises of the administrative detention centre (see mutatis mutandis 2002-461 August 29, 2002 DC, cons. 81).
2. as to the publicity of aliens justice cannot be foreign to justice. As you pointed out with force, "If the legislature can take towards strangers from the specific provisions, he must respect the freedoms and fundamental rights of constitutional value to all who reside in the territory of the Republic".
However, these fundamental rights include the right to have his cause heard publicly. As indicated by the European Court of the human rights, "advertising of the procedure of the judicial bodies (...)". protects litigants against secret justice beyond the control of the public", and"is also one of the ways to preserve confidence in the courts and tribunals. By transparency that it gives to the administration of justice, it helps to achieve (...) a fair trial"(Axen v. Germany, December 8, 1983, no. 8273/78, § 25).
This advertising, you are also the guardians. So have you considered it resulted "from 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 a deprivation of liberty shall, unless circumstances requiring the camera, be the subject of a public hearing' (DC 2004-492 of March 2, 2004, cons. 117).
Then of course, as you had already noticed about the Act of 2003, Parliament took care to expressly provide that the liberties and detention judge will decide 'publicly' (2003-484 DC of 20 November 2003, cons. 81).
But as pointed out just as the rapporteur of the commission of the acts of the Senate, "the publicity of hearings, although that explicitly recalled by the writing of the article, would be affected in its concrete implementing» (report No. 517 [2009-20 10], p. 173).
In reality, it is a no-brainer. In concreto, this advertisement will be purely virtual nature, with regard to access to the places of detention which, by definition, are necessarily difficult to access. This purely formal guarantee does therefore nothing to advertising discussions the same warranty that would offer a hearing in a place under the only Ministry of justice.
Finally, no "proper administration of justice concern" cannot justify this situation, and, so much less, it is safe bet many presidents of courts that have already refused to sit in the hearing rooms furnished close to detention centers refuse a fortiori sit in rooms installed in their midst.
* For all these reasons, the appellants invite you to pronounce the censorship of all these provisions, as well as all those that you ready for office.