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Decision No. 2011-635 Dc Of August 4, 2011

Original Language Title: Décision n° 2011-635 DC du 4 août 2011

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Folders Laws




JORF No. 0185, August 11 2011 page 13763
text number 4



Decision n ° 2011-635 DC of 4 August 2011

NOR: CSCL1122031S ELI: Not available



CITIZENS ' PARTICIPATION ACT IN THE FUNCTIONING OF CRIMINAL JUSTICE AND THE JUDGMENT
MINORS The Constitutional Council has been seized, under the conditions laid down in Article 61, second Paragraph, of the Constitution, of the The participation of citizens in the functioning of the criminal justice system and the judgment of minors, on 7 July 2011, by Mr Jean-Marc AYRAULT, Mrs Sylvie ANDRIEUX, MM. Jean-Paul BACQUET, Gérard BAPT, Mrs Delphine BATHO, Marie-Noëlle BATTISTEL, MM. Serge BLISKO, Jean-Michel BOUCHERON, Mme Monique BOULESTIN, M. Pierre BOURGUIGNON, Mme Danielle BOUSQUET, MM. François BROTTES, Alain CACHEUX, Guy CHAMBEFORT, Jean-Paul CHANTEGUET, Gérard CHARASSE, Alain CLAEYS, Mme Marie-Françoise CLERGEAU, MM. Gilles COCQUEMPOT, Pierre COHEN, Mrs Pascale CROZON, Mr Frédéric CUVILLIER, Mrs Claude DARCIAUX, MM. Pascal DEGUILHEM, Guy DELCOURT, Bernard DEROSIER, René DOSIÈRE, Julien DRAY, Tony DREYFUS, Jean-Pierre DUFAU, William DUMAS, Mme Laurence DUMONT, MM. Jean-Paul DUPRÉ, Yves DURAND, Olivier DUSSOPT, Christian ECKERT, Albert FACON, Hervé FERON, Mme Aurélie FILIPPETTI, Geneviève GAILLARD, MM. Guillaume GAROT, Jean GAUBERT, Jean-Patrick GILLE, Joël GIRAUD, Jean GLAVANY, Daniel GOLDBERG, Marc GOUA, Jean GRELLIER, Mrs Elisabeth GUIGOU, Mr David HABIB, Mrs Danièle HOFFMAN-RISPAL, MM. Serge JANQUIN, Régis JUANICO, Mme Marietta KARAMANLI, Conchita LACUEY, MM. Jérôme LAMBERT, Jack LANG, Mrs Colette LANGLADE, MM. Jean-Yves LE BOUILLONNEC, Gilbert LE BRIS, Jean-Yves LE DÉAUT, Jean-Marie LE GUEN, Mme Annick LE LOCH, M. Bruno LE ROUX, Mme Marylise LEBRANCHU, MM. Michel LEFAIT, Bernard LESTERLIN, Albert LIKUVALU, Jean MALLOT, Jean-René MARSAC, Philippe MARTIN, Mrs Frédérique MASSAT, Mr Didier MATHUS, Mrs Sandrine MAZETIER, MM. Michel MÉNARD, Pierre-Alain MUET, Alain NÉRI, Ms George PAU-LANGEVIN, MM. Germinal PEIRO, Jean-Luc PÉRAT, Jean-Claude PEREZ, Philippe PLISSON, François PUPPONI, Dominique RAIMBOURG, Marcel ROGEMONT, Bernard ROMAN, René ROUQUET, Michel SAPIN, Christophe SIRUGUE, Jean-Louis TOURAINE, Philippe TOURTELIER, Jean-Jacques URVOAS André VALLINI, Manuel VALLS, Michel VAUZELLE, Alain VIDALIES, Philippe VUILQUE, Mme Marie-Hélène AMIABLE, M. François ASENSI, Mme Martine BILLARD, MM. Alain BOCQUET, Patrick BRAOUEZEC, Jean-Pierre BRARD, Mme Marie-George BUFFET, MM. Jean-Jacques CANDELIER, André CHASSAIGNE, Jacques DESALLANGRE, Marc DOLEZ, Mme Jacqueline FRAYSSE, MM. André GERIN, Pierre GOSNAT, Jean-Paul LECOQ, Roland MUZEAU, Daniel PAUL, Jean-Claude SANDRIER, Michel VAXES, Yves COCHET, Noël MAMÈRE, François de RUGY and Mme Anny POURSINOFF, MEPs;
and, on 8 July 2011, by Mr Jean-Pierre BEL, Mrs Jacqueline ALQUIER, Michèle ANDRÉ, MM. Serge ANDREONI, Bernard ANGELS, Alain ANZIANI, David ASSOULINE, Bertrand AUBAN, Robert BADINTER, Claude BÉRIT-DÉBAT, Jacques BERTHOU, Mme Marie-Christine BLANDIN, Maryvonne BLONDIN, M. Yannick BODIN, Mme Nicole BONNEFOY, M. Yannick BOTREL, Mme Alima BOUMEDIENE-THIERY, Mr Martial BOURQUIN, Mrs Bernadette BOURZAI, Mr Michel BOUTANT, Mrs Nicole BRICQ, MM. Jean-Pierre CAFFET, Claire-Lise CAMPION, Jean-Louis CARRÈRE, Mme Françoise CARTRON, M. Bernard CAZEAU, Mme Monique CERISIER-ben-GUIGA, MM. Yves CHASTAN, Pierre-Yves COLLOMBAT, Yves DAUDIGNY, Marc DAUNIS, Jean-Pierre DEMERLIAT, Mme Christiane DEMONTÈS, M. Jean DESESSARD, Mme Josette DURRIEU, MM. Alain FAUCONNIER, Bernard FRIMAT, Charles GAUTIER, Ms Samia GHALI, MM. Serge GODARD, Jean-Pierre GODEFROY, Didier GUILLAUME, Claude HAUT, Edmond HERVÉ, Mme Annie JARRAUD-VERGNOLLE, MM. Claude JEANNEROT, Ronan KERDRAON, Ms Bariza KHIARI, Virginie KLÈS, MM. Yves KRATTINGER, Serge LAGAUCHE, Serge LARCHER, Jacky LE MENN, Roger MADEC, Philippe MADRELLE, Jacques MAHÉAS, Jean-Pierre MICHEL, Jean-Jacques MIRASSOU, Mme Renée NICOUX, MM. Jean-Marc PASTOR, François PATRIAT, Ms Gisèle PRINTZ, MM. Marcel RAINAUD, Daniel RAOUL, Paul RAOULT, Daniel REINER, Thierry REPENTIN, Ms Patricia SCHILLINGER, Mr Jean-Pierre SUEUR, Ms Catherine TASCA, MM. Michel TESTON, René TEULADE, Jean-Marc TODESCHINI, Richard YUNG, Jacques MÉZARD, Yvon COLLIN, Mme Françoise LABORDE, Anne-Marie ESCOFFIER, Nicole BORVO COHEN-SEAT, Eliane ASSASSI, Marie-France BEAUFILS, Annie DAVID, Michelle DEMESSINE, Evelyne DIDIER, MM. Guy FISCHER, Thierry FOUCAUD, Ms Brigitte GONTHIER-MAURIN, Mr Gérard LE CAM, Ms Josiane MATHON, MM. Jack RALITE, Ivan RENAR and Jean-François VOGUET, senators.
The Constitutional Council,
Given the Constitution;
SeenOrder No. 58-1067 of 7 November 1958 Amending Organic Law on the Constitutional Council;
Given the Penal Code ;
Seen criminal procedure code ;
SeenOrder No. 45-174 of 2 February 1945 on child offender;
In view of Constitutional Council Decision No. 2011-113/115 QPC, April 1, 2011 ;
Given the decision of the Constitutional Council n ° 2011-147 QPC of 8 July 2011;
Due to the observations of the Government, registered on 25 July 2011;
The rapporteur was heard;
1. Considering that the petitioners and members of the House of Commons have defected to the Constitutional Council the Law on the Participation of Citizens in the Operation of Criminal Justice and the Judgement of Minors; that they challenge the procedure for the adoption of Article 19 ; that they also challenge the provisions of Title I, in particular as they are subject to experimentation under Article 54; that they question, finally, the conformity with the Constitution of certain provisions of its Articles 12 and 13, relating to the Court of Assizes, as well as articles 33, 38, 49 and 50 In relation to the criminal justice of minors; that the requesting senators also contest the conformity with the Constitution of certain provisions of Articles 32 and 34;
On the procedure for the adoption of Article 19:
2. Considering that section 19 of the Act repealssection 131-36-1 of the Criminal Code , which provides that Mobile electronic surveillance must be ordered either by a specially reasoned decision of the correctional court or, in the case of the sitting court, under qualified majority conditions; and
3. Considering that, according to the applicants, this Article was adopted in disregard of Article 45 of the Constitution;
4. Considering that under the second sentence of the first paragraph of Article 45 of the Constitution: Without prejudice to the application of Articles 40 and 41, any amendment shall be admissible at first reading if it contains a link, even indirect, with the text filed or transmitted " ;
5. Considering that the provisions of article 19, which were inserted in the draft law at first reading in the National Assembly, relate to the provisions on the motivation of decisions in criminal matters as well as with Those relating to house arrest with electronic surveillance which were included in the draft law originally filed; that the complaint that this article was adopted in accordance with a procedure contrary to the Constitution must be rejected; That this section does not ignore any other constitutional requirement; As a result, it must be declared in conformity with the Constitution;
On the participation of citizens in the operation of criminal justice:
With regard to the participation of assessors in criminal cases:
6. Considering that the chapter I of the Act is devoted to the citizens of the assessors; that Article 1 inserts Articles 10-1 to 10-14 into the Code of Criminal Procedure; that the last three paragraphs of Article 10-1 provide that citizens may Be called as assessors to complete the Correctional Court and the Correctional Appeals Chamber, in the cases provided for in Articles 399-2 and 510-1 of the Code of Criminal Procedure, and to complete the Sentence and Punishment Court Chamber of the application of the sentences of the Court of Appeal, in the cases provided for in the articles 712-13-1, 720-4-1 and 730-1 of the same code;
7. Considering that, pursuant to Article 10 (2), a list of assessors is established, each year, for each High Court; that Article 10 (3) sets out the requirements for inclusion on that list; Article 10-4 Stipulates that assessors shall be appointed from among persons on a preparatory list drawn up by lot on the lists of electors; that Article 10-5 shall determine the manner in which the list of assessors Is established by the Commission under Article 262 which examines the situation of Persons on the preparatory list in an order determined by the drawing of lots; that it provides that the committee excludes persons who do not meet the requirements, those to whom an exemption is granted and those who do not Clearly appear not to be in a position to perform the duties of an assessor ", in particular for reasons which cast doubt on their impartiality, their good repute or their probity; that Article 10-6 determines the grounds on which the Assessors may be removed from the list by decision of the first President of the Court of Appeal; that Articles 10-7 to 10-9 determine the manner in which the service of the assessors is defined; that Article 10-10 provides for That every citizen assessor cannot, in principle, be called to sit more than ten Days of hearing per year; that Article 10-11 provides for the oath of assessors; that Article 10-12 defines the causes for which they may be challenged; that Article 10-13 provides that the exercise of the duties of citizen assessor Article 10-14 refers to a decree in the Council of State to lay down the arrangements for the application of the abovementioned provisions, in particular " The manner in which assessors should be trained in the functioning of the criminal justice system and on the role of the assessors before exercising their functions ;
8. Considering that, according to the applicants, these provisions disregard the right to an independent and impartial tribunal and the capacity requirements resulting from Article 6 of the Declaration of Human Rights and the Citizen of 1789;
Applicable constitutionality standards:
9. Considering that under Article 64 of the Constitution: The President of the Republic guarantees the independence of the judicial authority. -He is assisted by the Higher Council of the Judiciary. -An organic law has the status of judges. -The judges of the seat are removable " ; that under 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, under Article 6 of the 1789 Declaration, all citizens are equally entitled to all dignity, places and public employment, " According to their capacity, and without any distinction other than that of their virtues and talents " ;
10. Considering that, on the one hand, if the functions of a judge of the judicial order must in principle be exercised by persons who intend to devote their professional life to the judicial career, the Constitution does not prevent that, For a limited part, functions normally reserved for career judges may be exercised on a temporary basis by persons who do not intend to pursue the judicial career as such; and, on the other hand, whether the provisions Article 66 of the Constitution objects to the power to pronounce Of a court which is composed only of non-professional judges, they do not, by themselves, prohibit that power from being exercised by a criminal court of ordinary law in which Sit on such judges; that, however, they must be provided in such cases the appropriate safeguards to satisfy the principle of independence, which is inseparable from the exercise of judicial functions, and the capacity requirements which As a result of Article 6 of the 1789 Declaration; Common law correctional training, the proportion of non-professional judges must remain a minority;
11. Considering that the requirements resulting from Articles 64 and 66 of the Constitution do not require that citizens who are called by the drawing of lots to participate occasionally and as assessors in the exercise of criminal justice be subjected to the Rights and obligations applicable to all judges subject only to the specific provisions imposed by the exercise on a temporary or partial basis of their duties; that, as a consequence, Article 1 of the Act must be declared to be in conformity with The Constitution;
12. Whereas, however, the aforementioned provisions do not require the exercise of the duties of citizen assessor to legal competence or experience in matters which may be subject to their judgment; that, as a result, Article 6 of the 1789 Declaration requires that the nature of the questions of law or fact on which the assessors' citizens are called to rule, as well as the procedures under which they act, are defined in such a way that they Be able to make an informed decision on matters subject to their Appreciation;
Citizen Participation in Offences Judgement:
13. Considering that Article 5 of the Act supplements Section 2 of Chapter I of Title II of Book II of the Code of Criminal Procedure by a paragraph 2 entitled: From the Correctional Court to its Citizens' Training " And including sections 399-1 to 399-11; that section 399-1 provides that, for the purposes of the judgment of the offences listed in section 399-2, the court shall consist of three judges of the High Court and two assessors; As per section 399-2: " The following offences are considered by the Correctional Court in its citizens' training pursuant to section 399-1:
" 1 ° Breaches to the human person liable to imprisonment for a term equal to or more than five years provided for in Title II of Book II of the Penal Code;
2 ° Flights with violence provided for in the last paragraph of Article 311-4, at 1 ° and in the last paragraph of Article 311-5 and in theArticle 311-6 of the Penal Code, as well as the extortion provided for in Articles 312-1 and 312-2 of the same code;
" 3 ° Destruction, degradation and dangerous deterioration for persons liable to imprisonment for a term equal to or more than five years provided for in Section 2 of Chapter II of Title II of Book III of the Penal Code;
" 4 ° Impersonation underArticle 434-23 of the Penal Code ;
" 5. Environmental code offences punishable by a term of imprisonment of more than five years.
" The Correctional Court in its citizen training shall not, however, have jurisdiction in the judgment of the offences provided for in this Article when it is a crime referred to in Articles 706-73 and 706-74 or, subject to the provisions of the Article 399-3, referred to in Article 398-1 of this Code " ;
14. Considering that it is clear from article 399-4 of the Code of Criminal Procedure that assessors participate in the decisions of the Correctional Court only on the qualification of the facts, the guilt of the accused and the sentence and any other Is considered by the magistrates only; that the legislature has thus adopted rules to ensure that the judgment of the offences of general criminal law by persons drawn by the court is not incompatible with the requirements of Article 6 of the The 1789 Declaration; that, however, the offences set out in Book IV of the Criminal Code and Those laid down in the Code of the Environment are of such a nature that their examination requires special legal powers which hinder the participation of persons drawn to the environment; that, as a result, the 4 ° and 5 ° of Article 399-2 Must be declared to be contrary to the Constitution;
As for citizen participation in sentencing decisions:
15. Considering that article 15 of the law referred to provides that assessors participate in the judgment in the enforcement of sentences in order to decide on the reduction of the security period, on parole when the sentence Deprivation of liberty for a period of more than five years and, in that case, to order that the sentence be carried out under the conditions of day parole and placement under electronic supervision, where such measures are decided on a probationary basis Prior to parole; that this section also provides that they Participate in the review, on appeal, of all the decisions of the sentencing court on the basis of article 712-7 of the Code of Criminal Procedure ;
16. Considering that the participation of public assessors in the assessment by the courts of the application of the penalties, the substantive conditions which determine the development of the penalties do not, in itself, disregard the requirements of Article 6 of the Declaration of 1789; however, even in the absence of any express provision limiting such participation only to those questions of substance, the legal complexity of the application of the penalties can only allow the citizens of the Participate in the judgment of any other matter on which the The application of the penalties or the Chamber of the application of the penalties would be required to adjudicate, such as the assessment of the conditions of admissibility of applications or the examination of incidents of procedure; that, subject to this reservation, Article 15 is not Contrary to the Constitution;
As regards the use of experimentation:
17. Considering that Article 54 of the Act, in the first paragraph of its paragraph II, provides: Articles 10-1 to 10-14, 258-2, 264-1, 399-1 to 399-11, 461-1 to 461-4, 486-1 to 486-5, 510-1, 512-1, 712-13-1, 720-4-1 and 730-1 of the Code of Criminal Procedure and Article 24-4 of Order No. 45-174 of 2 February 1945, cited above, as a result of this Law, are applicable on an experimental basis as from 1 January 2012 in at least two appeals courts and up to 1 January 2014 in at most ten call courses. The relevant Courts of Appeal shall be determined by an order for the custody of seals " ; that these provisions provide for experimentation with the addition of assessors to correctional courts, correctional appeals chambers, courts and chambers of sentencing and the courts Juvenile correctional;
18. Considering that, according to the applicants, these provisions infringe the principle of equality before the law as well as the limited and reversible nature of experimentation and contempt for the competence of the legislator;
19. Considering that according to article 37-1 of the Constitution: The Act and the Regulation may contain, for a limited purpose and duration, provisions of an experimental nature " ; if, on the basis of this provision, Parliament may authorise, in the context of their possible generalisation, experiments that derogate from the principle of equality before the law for a limited purpose and duration, Define in a sufficiently precise manner the purpose and conditions and not disregard other requirements of constitutional value;
20. Taking the view that, by adopting the abovementioned provisions of Article 54, the legislator has sufficiently defined the purpose and conditions of the experiment in question; that he did not disregard his competence by referring to a custody order Seals to determine the courts of appeal within the jurisdiction of which this experiment will take place; that it has fixed the term of the experimentation that it has authorized; and that, as a result, section 54 of the law referred to is in conformity with the Constitution ;
With respect to the Assize Court:
21. Considering that sections 10 to 14 of the Act amend the provisions of the Code of Criminal Procedure relating to the Court of Assizes; Provisions reduce the number of judges sitting in the Court of Assizes from nine to six, and from twelve to nine the number of those sitting in the Court of Assizes on appeal; Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006071154&idArticle=LEGIARTI000006576304&dateTexte= &categorieLink = cid"> provisions of article 359 of the code of criminal procedure relating to the majority of votes necessary for the adoption of a decision Against the accused; moreover, they insert in the same code an article 365-1 relating to the reasoning of the judgments of the court of foundation;
22. Taking the view that it is clear from Articles 7, 8 and 9 of the Declaration of 1789 that it is for the legislature, in the exercise of its jurisdiction, to lay down rules of criminal law and criminal procedure to exclude arbitrariness in the search for Offences, the judgment of persons prosecuted and in the delivery and enforcement of sentences; that the obligation to give reasons for judgments and judgments is a legal guarantee of this constitutional requirement ;
As for section 359 of the Criminal Procedure Code :
23. Considering that article 13, paragraph XII, provides a new drafting of article 359 of the Code of Criminal Procedure Relating to the rules of majority applicable to the deliberations of the Court of Assitting; that under this section: " Any decision unfavourable to the accused shall be formed by a majority of at least six votes when the sitting court shall act in the first instance and by a majority of eight votes at least when the sitting court decides on appeal " ;
24. Considering that, according to the applicants, by allowing a decision unfavourable to the accused to be adopted with only the agreement of three jurors and three judges, those provisions infringe " The fundamental principle recognized by the laws of the Republic that the existence of a popular jury assumes that its decisions can only be taken by an absolute majority of the jurors " ; that they would disregard the meaning of the decision of 1 April 2011 on the reasons for the decisions of the sitting and would, in any event, prejudice the requirements arising from Articles 7, 8 and 9 of the 1789 Declaration;
25. Considering, first, that a republican tradition cannot be usefully invoked to argue that a legislative text that contradicts it would be contrary to the Constitution as much as it would have given rise to a fundamental principle Recognized by the laws of the Republic; that, in the present case, no law of the Republic before the Constitution of 1946 established the principle that when jurors and judges deliberate together, the decisions of the Court of Assizes Against the accused can only be adopted by an absolute majority of the jurors;
26. Considering, in the second place, that, in its decision No. 2011-113/115 QPC of 1 April 2011, the Constitutional Council noted that the Href=" /displayCodeArticle.do?cidTexte=LEGITEXT000006071154&idArticle=LEGIARTI000006576304&dateTexte= &categorieLink = cid"> section 359 of the Code of Criminal Procedure requires that any decision of the court against the accused be adopted by the Less the absolute majority of the jurors; that he referred to this rule as the number of legal guarantees surrounding the proceedings and the deliberation of the Court of Assizes; and Leading to the fact that the absence of reasons for the judgments of the Court of Assizes is not regarded as being unaware of the requirements arising from Articles 7, 8 and 9 of the 1789 Declaration; that the law referred to provides for the reasons for the judgments of the Court That it follows that the complaint alleging that the amendment ofArticle 359 of the Code of Criminal Procedure Disregard the meaning of the decision of 1 April 2011 referred to above must be rejected;
27. Considering, third, that the new article 359 requires that any decision against the accused be made by a majority of six votes out of nine, at least when the sitting court rules first and eight out of twelve votes when it On appeal; that such a rule of majority does not ignore any constitutional requirement;
28. Considering, on the other hand, thatArticle 359 of the Code of Criminal Procedure must be declared in conformity with the Constitution;
In Article 365-1 of the Code of Criminal Procedure:
29. Considering that paragraph II of Article 12 supplements Section 1 of Chapter VII of Title I of Book II of the Code of Criminal Procedure by Article 365-1 which requires that the judgments of the Court of Assizes be motivated; that Article 365-1 provides that That statement of reasons shall be drawn up by one of the judges composing the court on a document annexed to the sheet of questions, which shall be signed " Holding session " By the President and the first juror; that, however, the last paragraph of Article 365-1 states: Where, due to the particular complexity of the case, linked to the number of the accused or the crimes complained of, it is not possible to draw up the statement of reasons immediately, the statement of reasons must then be drawn up, paid to the file and Lodged at the Court of sitting at the latest within a period of three days from the date of the decision ' ;
30. Considering that, according to the applicants, by allowing a three-day postponement of the drafting of the statement of reasons and thus removing the possibility for the jurors to check that it corresponds to the statement of the main elements of charge which have Convinced the court of sitting, the legislature deprived of legal guarantees the constitutional requirement prohibiting the arbitrary imposition of penalties;
31. Considering that, on the one hand, it follows from Articles 380-1 and 380-9 of the Code of Criminal Procedure that sentence judgments Issued by the first-spring sitting court may be appealed within ten days of delivery; that, pursuant to Article 568 of the same Code, the parties shall have five clear days after the judgment of the Court Appeal to appeal in cassation; on the other hand, the Opened due to the particular complexity of the case, linked to the number of accused or the crimes of which they are accused, that the statement of reasons shall be drawn up no later than three days after the judgment of one of the judges of the Court Does not relieve the latter of the obligation to mention in the statement of reasons " The statement of the principal elements to be charged which, for each of the alleged facts of the accused, have satisfied the court of sitting " ; that it does not derogate more from the rule that the statement of reasons must be signed by the President and the first juror; that, in those circumstances, the impugned provision does not disregard the aforementioned constitutional requirements; That, as a result, Article 365-1 of the Code of Criminal Procedure is to be declared in conformity with the Constitution;
On juvenile judgment:
32. Whereas Title II of the Act, relating to the judgment of minors, includes Articles 24 to 52 which amend the order of 2 February 1945 on child offenders; that the applicants challenge the provisions of Article 38, relating to House arrest with electronic surveillance, sections 32 to 34 and 50, relating to the referral to the Juvenile Court or the Juvenile Court, and section 49, relating to the Juvenile Court; and
33. Considering 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 through measures adapted to their age and personality, 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 Act of 12 April 1906 on the Criminal majority of minors, the Act of 22 July 1912 on children's courts 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 the rule that binding measures or sanctions Should always be avoided in favour of purely educational measures; 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, if necessary, That they be pronounced in respect of measures such as placement, Supervision, detention 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;
34. Considering, moreover, that it follows from Articles 8 and 9 of the Declaration of 1789 that the principle of the presumption of innocence, of necessity and of proportionality, must be respected in respect of minors as adults. The protection of individual freedom guaranteed by Article 66 of the Constitution;
35. Considering, finally, that when it lays down the rules on the criminal law of minors, the legislator must ensure that the constitutional requirements set out above are reconciled with the need to seek the perpetrators of offences and to prevent Breaches of public order, including the security of persons and property, which are necessary to safeguard constitutional rights;
With regard to house arrest with electronic surveillance of a Minor:
36. Considering that Article 38 of the Law includes in the Ordinance of 2 February 1945 referred to above a Article 10-3 under which: Minors between sixteen and eighteen years of age may be placed under house arrest with electronic surveillance under the terms and conditions set out in Articles 142-5 to 142-13 of the Code of Criminal Procedure when they face a prison sentence of at least two years. Minors between thirteen and sixteen years of age may not be placed under house arrest with electronic surveillance, under the same conditions and terms and conditions, in cases where, pursuant to this order, they may be placed Under judicial review. In the case of house arrest with electronic surveillance at the domicile of the minor's legal representatives, their written agreement must first be collected by the competent judge in order to order the measure. The provisions relating to placement under mobile electronic supervision are not, however, applicable to minors " ;
37. Considering that, according to the applicants, by allowing the house arrest with electronic supervision of minors aged between thirteen and sixteen years in cases where they can be placed under judicial supervision while the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006071154&idArticle=LEGIARTI000021331011&dateTexte= &categorieLink = cid"> article 142-11 of the Code of Criminal Procedure assimilates house arrest with electronic surveillance to a measure of Pre-trial detention, these provisions result in even less rigour Necessary that, in addition, section 37 of the Act relaxes the conditions for placing a minor under judicial control;
38. Considering that pursuant to Article 10 (2) of the Order of 2 February 1945, judicial review of a minor between thirteen and sixteen years of age is possible in criminal matters; that in correctional matters, such control is possible where the penalty incurred Is greater than seven years or, in some cases because of the minor's history or the nature of the offence, where the minor is more than five years old; and the house arrest may be ordered in a place separate from the home Legal representatives of the minor and without their consent; that, by means of House arrest with electronic supervision of minors between thirteen and sixteen years of age as an alternative to judicial review in cases where the minor cannot be subject to an interim measure of detention, the contested provisions Have instituted a rigor which disregards the constitutional requirements referred to above; that the second sentence of Article 10 (3) of the Order of 2 February 1945 must be declared contrary to the Constitution;
With regard to the Children's Court:
39. Considering that Article 33 inserts in the order of 2 February 1945 an Article 8-3 under which: " The prosecutor of the Republic may prosecute before the court for children in the forms of390-1 of the Criminal procedure or a minor at least 13 years of age when he or she is accused of having committed an offence punishable by at least five years' imprisonment, or a minor of at least sixteen years of age when he or she is accused of committing an offence punishable by Less than three years' imprisonment.
" The procedure laid down in the first subparagraph may be implemented only if the minor is the subject of or has already been the subject of one or more proceedings pursuant to this order
The summons to court may be issued only if investigations into the facts are not necessary and investigations into the minor's personality have been carried out in the preceding twelve months on the basis of Article 8; However, where due to the absence of the minor in the course of the previous investigative measures, more in-depth evidence could not be collected on his personality in the course of an earlier procedure under the same Article 8, May be taken into account of investigations carried out in accordance with Article 12.
" The convocation specifies that the minor must be assisted by a lawyer and that, in the absence of the choice of a lawyer by the minor or his legal representatives, the prosecutor of the Republic or the judge of the children shall appoint a lawyer by the master Office.
" The convocation shall also be notified as soon as possible to the parents, guardian, person or service to which the minor is
. It shall be found by means of a record signed by the minor and the person to whom it was notified, who shall receive copies of
. The hearing shall be held within a period which may not be less than 10 days and more than two months' ;
40. Considering that, according to the applicants, those provisions which permit the convening of a minor before the Juvenile Court in accordance with the procedures of the criminal procedure applicable to the adults are aware of the fundamental principle recognized by the laws Of the Republic in the field of juvenile criminal justice;
41. Considering that the contested provisions allow the prosecutor of the Republic to have a juvenile summoned directly by a judicial police officer before the juvenile court without a preparatory instruction; that this procedure is Applicable to minors over sixteen years of age prosecuted for a crime punishable by at least three years'imprisonment and to minors over thirteen years of age prosecuted for an offence punishable by at least five years' imprisonment; that, in both cases, it cannot Be implemented only if the minor has previously been prosecuted under the The order of 2 February 1945; that it can only be initiated if investigations into the facts are not necessary and if investigations into the minor's personality have been carried out in the twelve months preceding the meeting; That there is no derogation from the special provisions requiring the assistance of the minor by a lawyer and the summons of his legal representatives; that these provisions take account of the age of the minor, the seriousness of the acts of which he is accused, and From his/her background; that, as a result, they are not aware of the requirements That section 33 must be declared to be in conformity with the Constitution; and
In respect of the obligation to refer to the Juvenile Court or the Juvenile
: 42. Considering that article 32 of the Act referred to article 8 of the order of 2 February 1945, relating to the juvenile judge, by a paragraph under which: " Where the offence is punishable by a sentence equal to or greater than three years' imprisonment and has been committed in a state of legal re-offending by a minor over the age of sixteen, he shall not be able to render a judgment in the Board of the Council and shall be obliged to return The minor before the juvenile court " ; that Article 34 supplements Article 9 of Article 9 of the same order, relating to the investigating judge, by a sentence which states: Where the offence is punishable by a term of imprisonment equal to or greater than three years, that it has been committed in a state of legal offence and that the minor is more than sixteen years of age, the referral to the juvenile court is compulsory. ;
43. Considering that, in the opinion of the requesting senators, the obligation of the juvenile judge or the investigating judge to refer the matter to the court of judgement is unaware of the fundamental principle recognized by the laws of the Republic in the field of criminal justice of the Minors;
44. Considering that the contested provisions are applicable only to minors over the age of sixteen who have been examined by the juvenile judge or the investigating judge for offences of at least three years' imprisonment and That, in those circumstances, the obligation made to the court to apply to the court of judgment empowered to impose penalties when it considers, at the end of the investigation, that the facts constitute an offence in accordance with those conditions, Disregards the above constitutional requirements;
With respect to " Surrender of the criminal trial " :
45. Taking the view that Article 50 of the Law includes in the order of 2 February 1945 a Chapter III ter entitled: From the cessure of the juvenile criminal trial " And comprising Articles 24-5 to 24-8; that in order to allow for the separation, for the judgment of minors, of the debates on the guilt of debates on measures, sanctions or penalties, these articles expressly apply to the judgment of the Minors the provisions of articles 132-58 to 132-65 of the Penal Code relating to the dispensation of punishment, the simple adjournment and Deferment with probation; that they also permit Dispensing and postponing educational measures and educational sanctions and determining additional cases in which the adjournment may be ordered;
46. Considering that under Article 24 (7) of the Order of 2 February 1945: By way of derogation from the third paragraph of Article 8 (3) and (II) of Article 14-2, the Prosecutor of the Republic may apply the procedures laid down in the same articles to a minor for whom no investigation has been ordered in Application of Article 8 and when there is not sufficient evidence on the person's personality to enable the court to rule, as long as it requires the application of the present Chapter.
" The Juvenile Court or the Juvenile Court shall then be held, after having pronounced on the guilt of the minor and, where appropriate, on the civil action, to adjourn the delivery of the educational measure, the educational sanction or the The penalty in accordance with Articles 24-5 and 24-6 " ;
47. Considering that, according to the applicants, these provisions allow the Prosecutor of the Republic to relieve himself of the conditions required for the use of the summons by the judicial police officer and the procedure for the immediate presentation only He intends to request the cutoff; that, as a result, they would disregard the fundamental principle recognized by the laws of the Republic in the criminal justice system of minors;
48. Considering that article 24-7 allows the prosecutor of the Republic, as long as it requires the application of the cutoff, to have a minor summoned or appear before the juvenile court or the juvenile court According to the procedures laid down in Articles 8-3 and 14-2 of the order of 2 February 1945, despite the inadequate nature of the information on the minor's personality; that, in such cases, the court of judgment is obliged to adjourn the Provision of the measure, the sanction or the sentence, in particular to enable the Further investigation of the minor's personality shall be carried out; that the contested provisions do not derogate from the other conditions which permit the use of the procedures provided for in Articles 8-3 and 14-2 above; that, in these Conditions, the fundamental principle of juvenile criminal justice is not infringed; that, as a result, Article 24-7 of the Order of 2 February 1945 must be declared in conformity with the Constitution;
As regards the Juvenile Court:
49. Considering that Article 49 of the Law includes in the order of 2 February 1945 a Chapter IIa entitled: From the Juvenile Correctional Court " ; that this court is competent to try minors over the age of sixteen who are prosecuted for one or more offences punished with imprisonment of three years or more and committed in a state of legal re-offending; that it is also Competent to judge the co-authors and accomplices of these minors when they are major; that it is composed of three judges and presided over by a judge of the children; that it shall act in accordance with the procedure laid down in the Children's Court; Section 24-2, the Juvenile Correctional Court may be seized:
" 1 ° By order of reference of the juvenile judge or the investigating judge pursuant to Articles 8 and 9;
" 2 ° In the conditions and in the manner provided for in Article 8-3;
" 3 ° In the conditions and in the manner provided for in Article 14-2, with the exception of the VI " ;
50. Considering that, according to the applicants, the institution of that court is unaware of the fundamental principle recognised by the laws of the Republic in the field of juvenile criminal justice;
51. Considering, first, that the juvenile court is composed of three judges of the High Court as well as, for the offences referred to in Article 399-2 of the Code of Criminal Procedure, of two assessors citizen; that, Where it is chaired by the judge of the children, it is mainly composed of persons who do not have special powers on matters relating to children; that, in itself, the fundamental principle recognised by the laws of the Republic in Criminal justice for minors is not an obstacle to the judgment of minors Be entrusted to a court composed of three judges or three judges and two assessors of which only the President is a magistrate specialising in matters relating to children; that, however, such a court cannot be regarded as A specialized court within the meaning of this fundamental principle; that, as a result, the latter requires that the juvenile court be seized in accordance with appropriate procedures for the search for the educational and moral rehabilitation of minors;
52. Considering that the 2 ° and 3 ° of Article 24-2 provide that the juvenile court may be seized in accordance with the procedure laid down in Articles 8-3 and 14-2 of the order of 2 February 1945 which allow the summoning or summoning Directly the minor before the court of judgment without a preparatory instruction; that these provisions lead, in disregard of the requirements of the fundamental principle in the criminal justice system of minors, to ensure that minors are not tried By a specialized court or in accordance with appropriate procedures; The 2 ° and 3 ° of Article 24-2 must be declared to be contrary to the Constitution;
53. Considering, second, that in recital 11 of its decision n ° 2011-147 QPC of 8 July 2011 referred to above, the Constitutional Council ruled that " The principle of impartiality of the courts does not preclude the judge of the children who has instructed the proceedings from taking measures of assistance, supervision or education at the conclusion of that instruction; that, however, Allowing the judge of the children who has been instructed to carry out the necessary diligences to achieve the manifestation of the truth and which has referred the juvenile to the court for children to preside over that court of judgment empowered to pronounce Penalties, the contested provisions relate to the principle of impartiality of the courts An infringement contrary to the Constitution; that, as a result, Article L. 251-3 of the code of the judicial organisation is contrary to the Constitution " ; that, for the same reasons, the second paragraph of Article 24 (1) of the Order of 2 February 1945, which provides that the juvenile court is presided over by a juvenile judge, should be declared unconstitutional. The same reasons as those set out in recital 12 of the same decision of 8 July 2011, it is necessary to postpone the date of this declaration of unconstitutionality to 1 January 2013;
54. Considering that there is no place for the Constitutional Council to raise ex officio any question of conformity with the Constitution,
Decides:

Item 1 Article 2 Read more about this article ...


Is declared contrary to the Constitution, effective January 1, 2013 and under the conditions laid down in Recital 53, in Article 49 of the same Law, the second Paragraph in Section 24-1 of Order No. 45-174 of February 2, 1945, on Women Offender.

Section 3


Subject to the Whereas Article 15 of the same Law is declared to be in conformity with the Constitution.

Item 4 Learn more about this Article ...


The following provisions of the Act are found to be in conformity with the Constitution:
-Article 1;
-in Article 5, the surplus of Article 399-2 of the Code of Criminal Procedure;
-Article 12, Article 365-1 of the Code of Criminal Procedure;
-Article 13, the section 359 of the Criminal Procedure Code ;
-section 19;
-section 32, le last paragraph Section 8 of Order No. 45-174 of February 2, 1945 relating to childhood delinquency;
-under section 33,8-3 Order No. 45-174 of February 2, 1945 on juvenile delinquency;
-in section 34, the last sentence of 3 ° Article 9 of Order No. 45-174 of the February 2, 1945 on the childhood offender;
-in section 49, the surplus of section 24-2 of Order No. 45-174 of February 2, 1945 on the childhood offender; and
-in section 50, section 24-7 of Order No. 45-174 of 2 February 1945 on Child Women;
-Section 54.

Article 5 Learn more about this Article ...


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 4 August 2011, attended by Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Michel CHARASSE, Renaud DENOIX de SAINT MARC, Valéry GISCARD d' ESTAING, Mme Jacqueline de GUILLENCHMIDT, MM. Hubert HAENEL and Pierre STEINMETZ.


The President,

Jean-Louis Debré


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