Key Benefits:
(Mr. TAREK J.)
The Constitutional Council was seized on 4 May 2011 by the Court of Cassation (judgment n ° 2411 of 27 April 2011), under the conditions laid down in Article 61 (1) of the Constitution, of a priority question of constitutionality By Mr Tarek J., on the conformity with the rights and freedoms guaranteed by the Constitution of Articles L. 251-3 and L. 251-4 of the code of the judicial organization.
The Constitutional Council,
Given the Constitution;
Seen order n ° 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Given the code of the judicial organization;
In view of the Act of 12 April 1906 amending Articles 66, 67 of the Criminal Code, 340 of the Code of Instruction Criminal and fixing the criminal majority at the age of 18;
Given the Act of 22 July 1912 on juvenile and juvenile courts and supervised freedom;
Seen Order No. 45-174 of February 2, 1945 on the child offender;
In view of the resolution of 4 February 2010 on the procedure before the Constitutional Council on priority constitutionality issues;
In view of the observations made by the Prime Minister on 26 May 2011;
Seen Letter of 9 June 2011 by which the Constitutional Council submitted to the parties a complaint that could be raised ex officio;
In view of the observations submitted for the applicant by Jean-Baptiste Gavignet, lawyer at the Bar of Dijon, registered June 14, 2011;
Seen the comments of the Prime Minister, Recorded on June 15, 2011;
Seen the exhibits filed and attached to the file;
Me Gavignet, for the applicant, and Mr. Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on June 21, 2011;
The Rapporteur Having been heard;
1. Considering that, according to Article L. 251-3 of the Code of the Judicial Organisation: The Children's Court consists of a judge of the children, the president, and several assessors. ;
2. Considering that under Article L. 251-4 of the Code: " The incumbent and alternate assessors shall be chosen from among persons over the age of thirty, who are of French nationality and who have indicated their interest in the issues of children and their
. The assessors are appointed for four years by the custody of the seals, Minister of Justice. Their renewal takes place in half.
However, in the event of the creation of a court for children, an increase or reduction in the number of assessors in those jurisdictions, or the replacement of one or more of these assessors on a date Other than that which is provided for in respect of their renewal, the designation of the persons concerned may take place for a period of less than four years within the limit of the duration required to allow their renewal by half " ;
3. Considering that, according to the complainant, the Presidency of the Children's Court by a judge of the children in charge of the proceedings and the majority presence of non-judicial assessors within that court are unfamiliar with Article 66 of the Constitution; that in In addition, the Constitutional Council has raised ex officio the complaint that the Presidency of the Children's Court by the judge of the children who instructed the proceedings would undermine the principle of impartiality of the courts;
On the Children's Court assessors:
4. Considering that Article 66 of the Constitution
: " No one shall be arbitrarily detained. -The judicial authority, the guardian of individual liberty, ensures that this principle is respected in accordance with the conditions laid down by law " ; that, if those provisions preclude the power to impose custodial measures on a court which is composed only of non-professional judges, they do not, by themselves, prohibit that power from being Exercised by a common criminal jurisdiction in which such judges sit;
5. Considering, however, that in this case, appropriate safeguards must be provided to satisfy the principle of independence, which is inseparable from the exercise of judicial functions, as well as the requirements of capacity, which arise from Article 6 of the 1789 Declaration of Human and Citizen Rights; that, in the case of correctional training under ordinary law, the proportion of non-professional judges must remain a minority;
6. Considering, first, that pursuant to Article L. 251-1 of the Code of the Judicial Organisation, the Juvenile Court is a specialised criminal court which " Is aware, under the conditions set out inOrder No. 45-174 of 2 February 1945 concerning juvenile delinquency, ticketing and offences committed by minors and Crimes committed by minors of sixteen years of age " ; that, therefore, by providing for the majority of non-professional assessors to sit in that court, the contested provisions do not disregard the constitutional requirements referred to above;
7. Taking the view, on the other hand, that Article L. 251-4 provides that the assessors are appointed for four years and ' Selected from persons over the age of thirty, who are of French nationality and who have indicated their interest in the issues of children and their skills " ; that Article L. 251-5 states that they take an oath before taking office; that Article L. 251-6 provides that the Court of Appeal may declare that the assessors who, ' Without lawful reason, refrained from referring to several successive summonses " And declare their lapsing " In the case of serious misconduct entasing honour or probity " ; that, in those circumstances, with regard to these functions of assessors, the impugned provisions do not disregard the principle of inseparable independence from the exercise of judicial functions, nor the capacity requirements deriving from the article 6 of the 1789 Declaration; that, as a result, Article L. 251-4 of the Code of the Judiciorganisation, which does not disregard any other right or freedom guaranteed by the Constitution, is in conformity with the Constitution;
On the President of the Court for Children:
8. Considering, on the one hand, that under Article 16 of the 1789 Declaration: " Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ; that the principle of impartiality is inseparable from the exercise of judicial functions;
9. Considering, on the other hand, that the reduction in the criminal responsibility of minors as a function of age, such as the need to seek the educational and moral rehabilitation of child offenders by means of measures adapted to their age and personality, Pronounced by a specialized court or according to appropriate procedures, have been consistently recognized by the laws of the Republic since the beginning of the twentieth century; that these principles include their expression in the law of 12 April 1906 on the criminal majority of minors, the Act of 22 July 1912 on the courts For children and the order of 2 February 1945 on juvenile delinquency; that, however, the Republican legislation prior to the entry into force of the 1946 Constitution does not enshrb a rule that binding measures or Sanctions should always be avoided in favour of purely educational measures; that, in particular, the original provisions of the ordinance of 2 February 1945 did not rule out the criminal responsibility of minors and did not exclude, in the case of Necessity, expressed in respect of measures such as placement, Supervision, restraint or, for minors over thirteen years of age, detention; that this is the scope of the fundamental principle recognised by the laws of the Republic in the field of juvenile justice;
10. Considering that theorder of 2 February 1945 referred to above, of which the contested provisions came from, established a juvenile judge, a specialised magistrate, and a court of Children, presided over by the Children's Judge; that the Children's Judge is, in accordance with Article 7 of that order, seized by the Public Prosecutor of the Republic in the jurisdiction of which the Children's Court has its seat and is solely responsible for the Prosecution; that, under section 8 of the same order, the Children's " All due diligence and investigation to achieve the manifestation of the truth and knowledge of the minor's personality and appropriate means for his rehabilitation " ; that this article also provides that it may " Then, by order, either declare that it is to be followed and proceed as referred to inArticle 177 of the Code of Procedure Criminal, or refer the minor to the juvenile court ; that no provision of the ordinance of 2 February 1945 or of the Code of Criminal Procedure prevents the judge of the children from participating in the judgment of the Criminal cases that he has heard;
11. Considering that the principle of impartiality of the courts does not preclude the courts of the children who have instructed the proceedings from providing assistance, supervision or education on the basis of that instruction; that, However, by allowing the judge of the children who has been instructed to carry out the necessary diligences to achieve the manifestation of the truth and who has referred the minor to the court for children to preside over that court of judgment empowered to To impose penalties, the impugned provisions shall apply to the principle of impartiality of the An infringement of the Constitution; that, as a result, Article L. 251-3 of the code of the judicial organisation is contrary to the Constitution;
12. Considering that, in principle, a declaration of unconstitutionality must benefit the party who submitted the priority question of constitutionality; that, however, the immediate repeal of article L. 251-3 of the code of the judicial organization Disregard the fundamental principle recognised by the laws of the Republic in the criminal justice system of minors and would have manifestly excessive consequences; that, subsequently, in order to enable the legislator to put an end to this The date of this decision must be postponed until 1 January 2013. Repeal,
Decides:
Article L. 251-4 of the same code is in accordance with the Constitution.
Declaration Of the unconstitutionality provided for in Article 1 takes effect from 1 January 2013 under the conditions laid down in recital 12 of this Decision.
This decision shall be published in the Official Journal of the French Republic and notified under the conditions set out in The Order of 7 November 1958.
Issued by the Constitutional Council at its meeting on 7 July 2011, attended by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Hubert HAENEL and Pierre STEINMETZ.
The President,
Jean-Louis Debré
