Key Benefits:
The Constitutional Council was seized by more than sixty deputies and more than sixty senators of two appeals against the law on the participation of citizens in the functioning of criminal justice and the judgment of minors.
These appeals require the following comments from the Government.
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I. ∙ Provisions
Citizens assessors
A. ― The authors of the referrals criticize the law referred, in that it provides that the correctional tribunal and the Chamber of Correctional Appeals, on the one hand, and the court of enforcement of sentences and the enforcement of the sentences of the court of appeal, on the other hand, will be supplemented in some cases by two assessors citizens, to misunderstand the requirements of independence and constitutional capacity arising from the jurisprudence
They also argue that, as it provides that this reform will be subject to experimentation in certain appeals courses, the law referred to is filled with negative incompetence, failing to sufficiently regulate the choice of appeal courses concerned, and ignores the constitutional principle of equality before justice as well as the requirements, resulting from Article 37-1 of the Constitution, that the object of review should be limited.
B. ― The Government does not share this view.
1. The authors of the petitioners rightly recall that the Constitutional Council has deduced from the provisions of Article 64 of the Constitution that "the functions of judicial officers must in principle be exercised by persons who intend to devote their professional life to judicial careers", that is, to career judges (Decision No. 92-305 DC of 21 February 1992, cons. 64).
This principle, however, does not preclude 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 embrace the judicial career" (ibid.). In this regard, it should be taken into account in addition to article 66 of the Constitution, the provisions of which "opposite the power to impose custodial measures on a court that would be composed of only non-professional judges" (Decision No. 2004-510 DC of 20 January 2005, cons. 16). As a result, in particular, the proportion of non-professional judges must remain a minority (ibid., cons. 17).
Finally, in any case, it is necessary that "appropriate guarantees" allow "to meet the principle of independence which is indivisible from the exercise of judicial functions" (Decision No. 92-305 DC of 21 February 1992, cons. 64), as well as the "requirements arising from Article 6 of the Declaration of 1789", with regard to the capacity of the persons concerned to exercise judicial functions (Decision No. 98-396 of the DC 19
(a) It is not questionable, first, that the requirement that judicial functions be exercised only for a "limited portion" by persons other than career judges is met by the provisions of the law referred to.
Indeed, in accordance with the ruling of the Constitutional Council of 20 January 2005, the two assessor citizens will remain a minority in both the correctional tribunal and the Correctional Appeals Chamber. And, in the case of the correctional court, the new section 399-1 of the Code of Criminal Procedure states that, when he or she sits in his or her civic training, he or she will not be able to understand any other non-professional judge. As for the citizen formations of the Court of Penal Enforcement and the Court of Appeal's enforcement chamber – by admitting that the rule set out in the decision of January 20, 2005 for correctional training is transposable – the assessor citizens will, as well, represent a minority share.
In addition, citizen training will only have limited knowledge of cases tried by the ordinary correctional units and by the courts of enforcement of sentences.
Thus, the offences that will be tried by the correctional court in its citizen training and, on appeal, by the citizen training of the Correctional Appeals Chamber are limited to listed in section 399-2 inserted in the Code of Criminal Procedure by law. The new article 399-3 of the same code limits, for him, the scope of the offences that these formations may be familiar with under the connexity. In total, the number of convictions handed down by citizen formations should, under these conditions, be between 30 and 40,000 per year, out of a total of almost 30,000 (excluding juvenile judgments, appearances on prior conviction, criminal orders and criminal compositions) in 2009, i.e. 9 to 11% of the total.
As for the courts of enforcement of sentences, it should be emphasized that assessor citizens will only be required to complete the collegial trainings that are the court of enforcement of sentences and the court of appeal's enforcement chamber. In addition, they will only sit in the court of enforcement of sentences in respect of conditional release (in respect of persons sentenced to deprivation of liberty for more than five years with a relic of more than two years) and the rehabilitation of the period of security (art. 720-4-1 and 730-1 new in the Code of Criminal Procedure), and, in the case of the enforcement of sentences of the court of appeal, In the latter case, they will only replace two non-magistrates (one in charge of a convict reintegration association and one in charge of a victim assistance association).
(b) Then, independence and impartiality of assessor citizens are ensured both by the incompatibility provided for in theArticle 257 of the Code of Criminal Procedure (release applicable to the establishment of the list of assessor citizens by the 3rd of the new article 10-3 of the same code), by the obligation of the commission responsible to draw up the annual list of assessor citizens to exclude persons who manifestly do not appear to be able to perform these functions, in particular because there are reasons to contest their impartiality (3rd of article 10-5 new reason), and finally by the possibility offered to the public prosecutor
(c) With regard to the requirement of capacity, the Government intends to emphasize from the outset that it cannot be interpreted in the same manner as it is, as was the subject of the legislative provisions on which the decisions of the Constitutional Council referred to above have been rendered, to allow the exercise of judicial functions by non-professional judges, or, as in this case, to judge direct participation of the people,
The new form of citizen participation in the functioning of the criminal justice system provided for in the above-mentioned law is, like the institution of the jury in criminal matters, based on the idea that a part of the judging function is directly accessible to all. This idea, without which the existence of the court of siege could not be justified, is manifested in particular by the use of the draw as a method of designation of assessor citizens, like the jurors of siege.
The Government considers that, in this context, the requirement of capacity must be considered as satisfied as long as there are, in the law, appropriate guarantees that citizens who are called to participate in the operation of criminal justice only matters, whether in fact or in law, on which, even in the absence of a particular qualification, they are able to make an informed decision.
That is the case in this case.
(i) With regard to the citizen training of the Correctional Court and the Correctional Appeals Chamber, their jurisdiction is indeed restricted, as stated, to the judgment of certain offences limited to listed (art. 399-2 new of the Code of Criminal Procedure). However, although this guiding principle suffers from exceptions, these offences are, for the most part, offences that, in certain circumstances, would constitute crimes punishable by the court of siege: for example, these are offences of aggravated violence, assault or sexual assault, extortion or aggravated robbery, or of fire-destruction that have not resulted in an extinguishing of a victim, which find their continuation
It is therefore offences which, although of a less serious nature than the corresponding crimes, are not, as shown in the rest, the so-called "remedialization" phenomenon of a fundamentally different nature: the legislator was able to estimate, under these conditions, that if it were admitted that the authors could be judged by majority jurors in the court of correctional bodies, it should have been fortioriously admitted citizens
In addition, the legislator has ensured to exclude from the list of related offences which may be known to citizens (new article 399-3 of the Code of Criminal Procedure) those with the most marked technical character, such as offences provided for by the Code of Criminal Procedure). monetary and financial code or by the code of urban planning. It is important to point out in this respect that, when one of these technical offences is involved, it is the common law training of the correctional tribunal that will be the sole competent authority at all.
Finally, under the express provisions of the new article 399-4 of the Code of Criminal Procedure, assessors, whether at first instance or on appeal, will only be able to decide, such as the jurors of siege, on the qualification of the facts, the guilt of the accused and the sentence, all other matters being decided by the judges alone. The assessor citizens will be able to make an informed decision on the issues that will be submitted to them, where the de facto judgements dominate, by procedural rules such as the obligation of the presiding judge, at the hearing, to expose the facts charged to the accused and the dependant or discharge elements contained in the record (art. 461-2 new of the Code of Criminal Procedure) and to give reading Assessing citizens, on the other hand, will not decide on matters that are more relevant to legal technology, including procedural matters that, where appropriate, must be decided by the court, especially when the court decides on appeal.
It is also important to point out that all of the guarantees that have just been recalled will apply to the juvenile correctional court established by section 49 of the law referred to when the latter will decide in its citizen training, in accordance with new section 24-4 of Order No. 45-174 of 2 February 1945 on child offenders.
Indeed, this court is, as indicated in section L. 251-7 of the Code of the Judicial Organization from section 51 of the referred Act, a specialized training of the Correctional Court. The rules applicable to the Correctional Court for Majors, whether in its formation of common law or in its citizen training, will therefore be applicable to it to the extent that it is not derogated from it by the order of February 2, 1945, as they are already, on the same basis, to the Children's Court.
(ii) With regard to citizen training in the Court of Penal Enforcement and the Court of Appeal's enforcement chamber, it should be noted that the Court of Appeals will never have to rule on three categories of measures: conditional release, rehabilitation of the security period and suspension of sentences.
However, in respect of each of these measures of punishment, the mission of the courts of enforcement of sentences is clearly defined by the Code of Criminal Procedure, and its good performance essentially requires de facto evaluations. With regard to conditional release, it is thus necessary to first determine, in order to assess the merits of the award of this measure, whether the person has shown serious efforts of social rehabilitation, if it justifies the exercise of a professional activity, an internship, an essential participation in the life of his family, the need to follow medical treatment, his or her efforts to indemnify the victims, orart. 729 of the Code of Criminal Procedure), then, where appropriate, to determine the nature and duration of the assistance and control measures to be accompanied by conditional release. With regard to the rehabilitation of the security period, it is a question of appreciating the existence of serious social rehabilitation gages (art. 720-4 of the Code of Criminal Procedure). With regard to, finally, suspensions of sentence, it is a question of whether it is established that the convicted person is suffering from a pathology that involves his or her vital prognosis or whether his or her health status is permanently incompatible with retention in custody (art. 720-1-1 of the Code of Criminal Procedure).
In practice, it is rare that legal technical issues arise, in these three subjects, in the collegial formations of the courts of enforcement of sentences. In particular, procedural nullities are not necessary to occupy before these courts the place they occupy before the courts responsible for making the sentences. As to the inadmissible requests, in particular because the convicted person does not justify the time limits for the execution of his or her sentence under the law to be admissible for the benefit of the measure requested, they are generally treated by an order of the judge of enforcement of sentences or the president of the court of enforcement of sentences, and do not, therefore, reach the colleges.
If, however, matters other than those relating to the assessment of the appropriateness of the application of a sentence or the terms and conditions of that measure, in relation to the interests in question, must be submitted to the citizen formations of the courts of enforcement of sentences, the Government considers that the law referred should be construed as reserving the care to know it only to career magistrates, excluding assessor citizens. As evidenced in particular by the provisions providing for the reading, before any deliberation, by the president of the court of the application of penalties or the enforcement of sentences second and third paragraphs of Article 707 of the Code of Criminal Procedure, the intent of the legislator was only, in fact, that assessor citizens, together with career magistrates, decide on the issue of balance between, on the one hand, the need for individualization of sentences and reintegration, which can lead to the early release of a convicted person, and, on the other, the interests of society and the victim in the face of the risks of recidivism, which can lead to refuse
The provisions of the law referred to in respect of assessor citizens appear in no way contrary to the requirements of the jurisprudence of the Constitutional Council, and the applicants cannot avail themselves of the objectives of constitutional value of good administration of justice and good use of public money to challenge the freedom that the Constitutional Council recognizes to the legislator to adopt at any time, for the realization or conciliation of constitutional purposes, of the new terms and conditions of which it considers
2. In addition, the legislator was able, without further misunderstood of any constitutional requirement, to decide that the provisions of the law referred to for assessor citizens would be applied experimentally between January 1, 2012 and January 1, 2014.
(a) With regard to first of all the principle of resorting to experimentation in the field of criminal proceedings, there is no ambiguity in the preparatory work of the Constitutional Act No. 2003-276 of 28 March 2003 that Article 37-1 was introduced into the Constitution precisely "to allow experiments in areas relating to public freedoms, such as that of justice, where the Constitutional Council ensures strict respect for the principle of equality" (report made on behalf of the Committee of Laws of the Senate by Mr.René Garrec, No. 27, p. 90). In particular, the interest of resorting to experimentation in civil and criminal jurisdictions has been discussed on several occasions during the consideration of the constitutional bill in Parliament (v., in addition to the above-mentioned report, the intervention of Mr. Dominique Perben, Seal Custody, during the sitting of October 30, 2002 in the Senate).
It is in vain that the authors of the referrals suggest that Article 37-1 of the Constitution would be without application in the field of criminal justice. And, if it is not questionable that the experimentation of the reform of the law referred to in the jurisdiction of certain courts of appeal will temporarily lead to that persons in similar situations be judged by differently composed courts, this derogation from the principle of equality is inherent in the very principle of experimentation and therefore cannot, in itself, pass contrary to the Constitution.
(b) However, this exemption meets the requirements of Article 37-1 of the Constitution.
It is the result of the jurisprudence of the Constitutional Council that, if this article allows Parliament to authorize, from the perspective of their possible generalization, experiments derogating, for a limited purpose and duration, from the principle of equality before the law, the legislator must specify in sufficient detail the object and conditions and do not misunderstand the other requirements of constitutional value (Decision No. 2004-503 DC of 12 August 2004, cons.
In the case of a case, the subject-matter of the experiment is very precisely defined by section 54 of the referred law, which refers to the only provisions relating to assessor citizens, i.e., to the provisions amending the composition of the trial formations in question and adapting accordingly the procedure applicable to the courts concerned, without affecting the substance of the applicable law. However, citizen trial training will not, as stated above, know that, on the one hand, the cases tried by ordinary correctional training and the courts of enforcement of sentences are limited.
Finally, the legislator, who specifically defined the duration of the experiment, did not further misunderstood the extent of its jurisdiction by entrusting a Seal Guard order to determine the course of appeals involved in this experiment, as long as it has anticipated that the number of courses involved should be between two and ten.
Under these conditions, and in particular in view of the limited purpose of experimentation organized by the law referred to, the authors of the referrals are not justified to argue that it would not be subject to a reversible character.
II. — On the provisions relating to the court of siege
A. ― The members of Parliament and Senators argued that, by bringing the number of jurors from nine to six when the court of siege decides first, while bringing to six the majority to which any decision unfavourable to the accused is formed, the law referred to has ignored the fundamental principle recognized by the laws of the Republic that decisions unfavourable to the accused can only be acquired with the consent of an absolute majority.
They further argue that by permitting the drafting of the incentive sheet until the expiry of a period of three days after the decision was pronounced, the legislator deprived of legal guarantees the constitutional requirement prohibiting the arbitrariness in sentencing.
B. ― These grievances cannot be received by the Constitutional Council.
1. Firstly, with regard to the conditions for the formation of decisions unfavourable to the accused in the court of siege, theArticle 359 of the Code of Criminal Procedure Article 13 of the above-mentioned Act states that: "A decision that is unfavourable to the accused shall be made by a majority of six votes at least when the court of sits first and by a majority of eight votes at least when the court of sits on appeal. »
It is the result of these provisions, given the concomitant reduction in the number of jurors from nine to six, that in the first instance, unfavourable decisions to the accused may now be taken, if any, by the meeting of the three judges and three jurors, half of them.
(a) The Government considers that the current rule of law, according to which decisions unfavourable to the accused can only be acquired with the assistance of an absolute majority of the members of the jury, cannot be considered, contrary to what the appellants suggest, as an expression of a fundamental principle recognized by the laws of the Republic within the meaning of the Preamble to the 1946 Constitution.
It should be pointed out, in fact, that, as the authors of the referrals agree, the order of April 20, 1945 on the courts of siege, while validating, in its outline, the so-called law of November 25, 1941, had increased the number of jurors to seven, but did not foresee any qualified majority. Thus, the court of siege, composed of ten persons, could condemn the accused with a majority of six votes, which could be those of the three magistrates and only three of the six jurors.
This only circumstance, prior to the Constitution of 27 October 1946, is sufficient, in the opinion of the Government, to exclude from seeing a fundamental principle recognized by the laws of the Republic in the rule that decisions unfavourable to the accused can only be acquired with the agreement of an absolute majority of the members of the jury.
(b) The new rules for the formation of decisions in the court of first instance can not be considered further as contrary to the requirement, which results from Articles 7, 8 and 9 of the Declaration of Human and Citizen Rights, that it is the responsibility of the legislator, in exercising its jurisdiction, to establish rules of criminal law and criminal procedure, such as to exclude the arbitrator in the search of the perpetrators of the offences
The Constitutional Council, in its decision No. 2011-113/115 QPC of 1 April 2011, noted, as well as the authors of the referrals, that there should be no justification for the lack of motivation in the form of the arrests of the sitting courts, for the circumstance that theArticle 359 of the Code of Criminal Procedure, in its current drafting, the effect is to impose that any decision of the court of siege unfavourable to the accused is adopted by at least the absolute majority of the jurors.
But, on the one hand, the referred law specifically establishes, in the new section 365-1 of the Code of Criminal Procedure, the obligation to justify the judgments of the courts of siege: and, as recalled by the Constitutional Council in its above-mentioned decision of 1 April 2011, the obligation to justify the judgments and judgments of conviction constitutes a legal guarantee of the constitutional requirement prohibiting the arbitrator, in particular,
On the other hand, and in any case, the conditions for the formation of decisions in the court of siege clearly constituted only one element among all those who led the Constitutional Council to admit compliance with the rights and freedoms guaranteed by the Constitution of the absence of motivation in the form, at the time, of the arrests of the courts of siege. It cannot be seriously supported, therefore, that the amendment of these conditions by the law referred to would, by itself, pave the way for the arbitrator.
2. With regard to the motivation of the seating courses stops, the article 365-1 inserted in the Code of Criminal Procedure Article 12 of the Act provides that the Act shall be drafted by the President or one of the assessors, and that it shall appear on a document annexed to the sheet of questions called a cover sheet, which shall be signed, in accordance with Article 364, by the President and by the first juror designated by lot.
The last paragraph of section 365-1, however, states that, "when due to the particular complexity of the case, related to the number of accused or the crimes against them, it is not possible to immediately draft the motivation sheet, it must then be written, paid on file and filed at the office of the court of siege no later than three days after the decision has been made."
Contrary to what the appellants say, these provisions will in no way have the effect, when implemented, of "losing the jury any control over the motive of the decision." In fact, whether it is drafted immediately or within three days, the incentive sheet should, in the event of a conviction, reflect the main dependants who, for each of the facts charged to the accused, have convinced the court of attendance, and who were exposed in the proceedings conducted by the court and the jury. In all cases also, the motivation sheet must be signed by the president and the first juror designated by lot, which will guarantee that its content is true to reality.
In exceptional cases, the possibility of deferring the drafting of the motivation sheet does not appear in any way contrary to the requirements of articles 7, 8 and 9 of the Declaration of Human and Citizen Rights.
III. ∙ Provisions on Juvenile Judgment
A. ― Requiring members and senators argue that the possibility of placing a minor under house arrest with electronic supervision, opened by section 38 of the bill referred to, is unaware of both the requirement to adapt the measures taken against minors and the principle that individual freedom cannot be hindered by a strictness that is not necessary.
They also consider that the possibility of recourse to the procedure for summoning a juvenile by judicial police officer for the appearance of a juvenile before the juvenile court or the juvenile correctional court, even though it does not exist in the file of sufficient elements on his personality to allow the court to decide, as provided for in section 50 of the law referred to, on the prohibition of the criminal proceedings of minors, is contrary to the fundamental principle of juvenile justice
Finally, they argue that the juvenile correctional court established by section 49 of the law referred to does not meet the requirement, resulting from the jurisprudence of the Constitutional Council, that minors be tried by a specialized court.
B. ― None of these grievances can be received by the Constitutional Council.
1. Far from misunderstood the principles invoked by the authors of the referrals, section 38 of the referred law is intended to correct an inconsistency of the current regime of residential assignment with electronic surveillance as it applies to minors, by restricting, with respect to the youngest of them, the possibilities to use this measure.
This is indeed designed by theArticle 137 of the Code of Criminal Procedureas an intermediary, by its rigor, between judicial review and pretrial detention. It is also permissible to resort to it only if the person under review is liable to imprisonment for at least two years, while judicial review is possible as soon as a sentence of imprisonment is incurred, while the pretrial detention presupposes, on the other hand, a sentence of at least three years' imprisonment.
If, at the present time, the order of February 2, 1945 otherwise provides, these provisions apply to minors. This situation is certainly without consequence for minors over sixteen years of age, whose conditions of detention under judicial supervision or pre-trial detention are identical to those for adults.
On the other hand, for minors under the age of sixteen, the absence of specific provisions in the order of 2 February 1945 is paradoxical that the conditions of placement under house arrest with electronic surveillance are more flexible than those provided for placement under judicial review: in fact, minors between the ages of thirteen and sixteen years cannot be placed under judicial review, in the current state of law, only if they incur a sentence of at least 2 years.
It is to remedy this inconsistency that section 38 of the law referred to in the order of February 2, 1945 contains an article 10-3 which, inter alia, provides that minors between thirteen and sixteen years of age may be placed under house arrest with electronic supervision only in cases where they may be placed under judicial supervision.
However, the rule of law resulting from this amendment cannot be considered contrary to the principles invoked by the applicants.
On the one hand, it cannot seriously be argued that residential assignment with electronic surveillance would, by nature, be inappropriate for minors over thirteen years of age. By its decision No. 2002-461 DC of 29 August 2002 (cons. 86), the Constitutional Council has already expressly admitted the placement of minors under electronic supervision for crime, in the course of judicial review, as of the age of thirteen years.
On the other hand, the use of this measure will remain subject to compliance with the conditions provided for by the articles 142-5 to 142-13 of the Code of Criminal Procedurein particular, the result of which is that residential assignment under electronic surveillance can only be decided with the agreement or upon request of the individual. Thus, when the conditions of pre-trial detention are not met, the person concerned is perfectly free to refuse such a measure, this refusal does not expose him to detention. When, on the other hand, these conditions are met, in particular because the person concerned has subtracted from the obligations of his judicial review (art. 11 of the order of 2 February 1945), the assignment of residence under electronic supervision may represent a less rigorous alternative to pretrial detention.
Under these conditions, section 38 of the law referred to may not be construed as the principle that individual freedom cannot be hampered by a necessary rigor.
2. With regard to the procedure for summoning by judicial police officer provided for in article 8-3 restored in the order of 2 February 1945 by the III of article 33 of the referred law, the legislator, as well as the complainants, drew all the consequences of Decision No. 2011-625 DC of 10 March 2011 by which the Constitutional Council had censored provisions making applicable to minors the procedure provided for by the Constitutional CouncilArticle 390-1 of the Code of Criminal Procedure, on the grounds that these provisions were "applicable to any minor of his or her age, the status of his or her criminal record and the gravity of the offences prosecuted" and that they do not "guarante" that the court will have recent information on the personality of the minor allowing him to seek his or her educational and moral recovery" (cons. 34).
(a) In the writing given to it by the law referred to, section 8-3 of the order of 2 February 1945 provides for the recourse to the procedure provided for by the procedureArticle 390-1 of the Code of Criminal Procedure two sets of conditions to meet the requirements as set out.
On the one hand, in fact, it may not be resorted to, in respect of a minor who is at least thirteen years of age, unless he is charged with committing an offence punishable by at least five years' imprisonment, and in respect of a minor who is at least sixteen years' imprisonment, unless he is charged with having committed an offence punishable by at least three years' imprisonment. In both cases, the minor must be subject to or has already been subject to one or more procedures pursuant to the order of February 2, 1945, which excludes the first-time offenders.
On the other hand, the summons to justice can only be issued on the dual condition that investigations on the facts are not necessary and that investigations on the personality of the minor have been carried out in the preceding twelve months on the basis of article 8 of the order of 2 February 1945, unless it has been possible to obtain in-depth information on the personality of the minor in the event of his absence from such measures
(b) However, contrary to what the complainants suggest, the provisions of section 50 of the law referred to, relating to the breakdown of the criminal trial of minors, do not undermine the scope of the guarantees thus provided by the legislature.
Certainly, the new article 24-7 of the order of 2 February 1945 provides that the prosecutor of the Republic may, in particular, enforce the procedure of summoning by judicial police officer against a minor for which no investigation has been ordered pursuant to article 8 of this order and even though it does not exist in the record of sufficient elements on his personality to allow the court to make a decision: it will be
The court, after deciding on the guilt of the minor and, if so, on civil action, will then be required to adjourn the pronouncement of the educational measure, the educational penalty or the sentence and to refer the case to a subsequent hearing. In the meantime, in accordance with the second paragraph of section 24-6 of the order of 2 February 1945, the investigation measures on the personality of the minor necessary to determine the criminal response to his behaviour must be ordered.
It is not necessary, on the other hand, to have the outcome of these investigations at the stage of the conviction, where the personality of the minor does not play any role: only the criminal response must take into account, in order to seek, in accordance with the jurisprudence of the Constitutional Council, the "educational and moral rehabilitation of children offenders". The derogation from section 8-3 of the order of 2 February 1945, as provided for in section 24-7 of the same order to draw the consequences of the expansion of the criminal trials of minors and to give all its effectiveness to this highly anticipated system of practice cannot therefore be considered as unaware of the requirements of this case law.
3. Finally, as recalling the authors of the referrals, the fundamental principle recognized by the laws of the Republic in the field of juvenile justice, according to the jurisprudence of the Constitutional Council, "the need to seek the educational and moral rehabilitation of children offenders by measures appropriate to their age and personality, pronounced by a specialized court or according to appropriate procedures" (decision No. 2002-461 DC of 29 August 2002, cons. 27).
However, it is not the result of this case law nor that the degree of specialization of the jurisdiction concerned and the degree of specificity of the procedure applicable to it may not vary according to the age of the minor and the nature of the facts referred to him or that, in each case, it cannot be satisfied with the constitutional requirements by seeking a balance between the degree of specialization of the jurisdiction and the degree of specificity of the proceedings.
Thus, as of Act No. 51-687 of 24 May 1951 creating the court of juveniles' seats to judge minors over sixteen years accused of a crime, who had so far been under the Children's Court, the legislator demonstrated its conviction that, beyond a certain age, it was possible to make juveniles judge by a specialized training of a common law jurisdiction, as long as certain specific characteristics were preserved.
The establishment of the Juvenile Correctional Court is consistent with the same logic with respect to minors over the age of sixteen who, without being charged with a crime, are prosecuted for one or more offences punishable by imprisonment of three years or more and committed in a state of legal recidivism (art. 24-1 of the order of February 2, 1945).
The Juvenile Correctional Court is, in fact, according to section L. 251-7 inserted in the code of the judicial organization by section 51 of the law referred, "specialized training of the correctional court". This specialization, which the legislator has intended to mitigate against that of the children's court, is manifested by the compulsory presidency of this training by a child judge ― which, in accordance with Constitutional Council Decision No. 2011-147 QPC of 8 July 2011, cannot be the same which, if any, has known of the case during the education phase.
On the other hand, the procedure applicable to this court will be in any way, under the express provisions of the third paragraph of section 24-1 new of the order of 2 February 1945, the procedure applicable to the juvenile court: will thus find to apply the special provisions of this order relating to the hearing of the minor (art. 13), to the advertisement of the proceedings (art. 14), to the procedure of immediate presentation (art. 14-2), to the legal reduction of penalties
In addition, the Juvenile Correctional Court will be seized under the same conditions as the Children's Court, i.e. by order of reference of the juvenile judge or examining magistrate pursuant to sections 8 and 9 of the order of 2 February 1945, according to the procedure of summoning by judicial police officer specific to minors provided for in section 8-3 new of that order, or in accordance with the procedure of immediate presentation governed by section 14-2 of the same order.
Finally, it may, like the Children ' s Court, issue educational measures, educational sanctions or penalties.
In these circumstances, the Government considers that, in view of the age of juveniles who may be tried by it and the nature of the facts against them, which justify a reduction in their specialization, the juvenile correctional court shall, by its composition and by the procedure applicable to it, meet the requirements of the fundamental principle recognized by the laws of the Republic with regard to juvenile justice.
IV. ― On Article 19
A. ― Requiring members and senators argue that section 19 of the bill referred to repealsArticle 131-36-11 of the Criminal Code, was adopted according to a procedure contrary to Article 45 of the Constitution, in the absence of any link, even indirect, with the text of the bill.
B. ― The Constitutional Council may also rule out this grievance.
TheArticle 131-36-11 of the Criminal Code determines how a mobile electronic surveillance placement, as a security measure, as part of a socio-judicial follow-up, may be delivered by a correctional court or a court of siege. It therefore provides that, when ordered by the correctional court, the placement under mobile electronic surveillance must be subject to a specially reasoned decision, and that, when ordered by the court of attendance, it must be decided under the conditions of majority prescribed by the court of attendanceArticle 362 of the Code of Criminal Procedure for maximum sentencing.
Section 19 of the deferred law repealsArticle 131-36-11 of the Criminal Code. This article is the result of an amendment on first reading to the National Assembly, and its provisions must be considered as having their place in the law referred to, as long as, under section 45 of the Constitution, they relate, even indirectly, to the text of the bill tabled on the Senate office.
However, this bill contained provisions relating to the placement of minors under electronic supervision in the context of the enforcement of sentences (III of section 9) and provisions relating to the assignment of minors under electronic supervision in the context of judicial review (arts. 22 and 26).
The Government considers, under these conditions, that the provisions of the amendment under section 19 of the Act referred to were at least indirectly related to the bill.
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For these reasons, the Government is of the opinion that the grievances articulated in the referrals are not likely to lead to the censorship of the referred law.
He therefore considered that the Constitutional Council should reject the appeals before it.
