Key Benefits:
(Mr. HOVANES A.)
The Constitutional Council was seized on 15 June 2011 by the Court of Cassation (Criminal Division, Judgment No. 3455 of 7 June 2011), under the conditions laid down in Article 61 (1) of the Constitution, of a priority question of Constitutionality raised by Mr Hovanes A., relating to the conformity with the rights and freedoms guaranteed by theof the Article 175 of the Code of Criminal Procedure.
The Council Constitutional,
Given the Constitution;
Seen fromOrder No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Seen Criminal Procedure Code ;
In view of the resolution of 4 February 2010 on the procedure before the Constitutional Council for priority issues of Constitutionality;
Seen the observations made by the Prime Minister, registered on 7 July 2011;
Seen the documents produced and attached to the file;
Mr Thierry-Xavier Girardot, appointed by the Prime Minister, having been heard at the public hearing on 2 August 2011;
The rapporteur having Heard;
1. Considering that the terms of Article 175 of the Code of Criminal : As soon as the information appears to be complete, the examining magistrate shall communicate the case to the public prosecutor and at the same time notify the parties and their lawyers either verbally on the file or by registered letter. Where the person is detained, such notice may also be notified by the head of the penitentiary institution, who shall forthwith send to the investigating judge the original or the copy of the receipt signed by the person
. The prosecutor of the Republic then has a period of one month if a person under examination is detained or three months in the other cases to address his or her reasoned requests to the investigating judge. Copies of these requisitions are sent at the same time to counsel for the parties by registered letter.
" The parties shall have the same period of one month or three months from the dispatch of the notice provided for in the first subparagraph to send written observations to the investigating judge, in accordance with the provisions laid down in the penultimate paragraph of Article 81. Copies of these observations shall be sent to the Public Prosecutor at the same
. Within the same period of one month or three months, the parties may make requests or make requests on the basis of Articles 81, ninth paragraph, 82-1, 156, first subparagraph, and 173, third paragraph. At the end of that period, they shall no longer be entitled to make or submit such requests or requests.
" At the end of the period of one month or three months, the prosecutor of the Republic and the parties shall have a period of ten days if a person under examination is detained or one month in the other cases to address to the investigating judge requisitions Or additional observations in the light of the comments or requisitions communicated to them.
" At the end of the period of ten days or a month provided for in the preceding paragraph, the examining magistrate may make his order for payment, including if he has not received any requisitions or observations within the prescribed time
. The first, third and fifth paragraphs and, in the case of requests for a declaration of invalidity, the fourth paragraph of this Article shall also apply to the assisted
. The parties may declare, in the presence of their counsel or duly convened, to waive the time limits provided for in this Article." ;
2. Considering that, according to the applicant, by providing that the copy of the final requisitions of the Public Prosecutor is addressed only to the lawyers of the parties, the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006071154&idArticle=LEGIARTI000006575787&dateTexte= &categorieLink = cid"> second sentence of the second paragraph of Article 175 of the Code of Criminal Procedure infringes the right to a fair trial and to Rights of defence of parties not assisted or represented by counsel;
3. Considering that the priority question of constitutionality relates to second sentence of the second subparagraph of Article 175 of the Criminal procedure code ;
4. Considering that according to article 6 of the Declaration of the Rights of Man and the Citizen of 1789 the Law " Must be the same for all, either protecting or punishing " Article 16 provides as follows: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ; that, if the legislator may provide for different rules of procedure according to the facts, the situations and the persons to whom they apply, it is on the condition that these differences do not make unjustified distinctions and that they are Ensured equal guarantees, in particular as regards the adversarial principle and respect for the rights of the defence;
5. Considering that Articles 80-2, 80-3 and 116 of the Code of Criminal Procedure guarantee the right of persons to be examined And civil parties to benefit, during the preparatory inquiry, from the assistance of a lawyer, where appropriate ex officio; that, however, when the parties are recognized the freedom to choose to be assisted by a lawyer or Defend alone, respect for the principles of the adversarial system and Of the rights of the defence that the investigating judge may rule on the regulation of the investigation without the requests made by the public prosecutor at the end of the proceedings having been brought to the attention of all the parties; The second sentence of the second paragraph of Article 175 of the Code of Criminal Procedure, the words: Lawyers of " Have the effect of reserving the notification of the final requisitions of the prosecutor's office to the lawyers assisting the parties; that, as a result, they must be declared to be contrary to the Constitution;
6. Considering that this declaration of unconstitutionality takes effect from the date of publication of this Decision; that, on the one hand, it is applicable to all proceedings in which the requisitions of the Public Prosecutor Have been sent subsequent to the publication of this Decision; that, on the other hand, in proceedings which have not been definitively ruled on that date, it may be relied on only by the parties not represented by a lawyer at the time of the Resolution of information once the order for payment has been made to them Grievance;
7. Considering that, for the remainder, the second sentence of the second subparagraph of Article 175 of the Code of Criminal Procedure does not No rights or freedoms guaranteed by the Constitution,
Decides:
The declaration of unconstitutionality of Article 1 takes effect as from the publication of the Decision in accordance with the conditions laid down in its recital 6.
The surplus of the second sentence of the second subparagraph of Article 175 of the Code of Criminal Procedure is Consistent with the Constitution.
This decision shall be published in the Official Journal of the French Republic and notified under the conditions set out in section 23-11 of the Order of November 7, 1958, above.
Deliberated by the Constitutional Council in its session of 8 September 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, Mme Jacqueline de GUILLENCHMIDT, MM. Hubert HAENEL and Pierre STEINMETZ.
The President,
Jean-Louis Debré
