Key Benefits:
(MME ORIETTE P.)
The Constitutional Council was seized on July 6 2011 by the Court of Cassation (First Civil Chamber, Judgment No. 864 of the same day), under the conditions laid down in Article 61-1 of the Constitution, a priority question of constitutionality by Ms. Oriette P. relating to the conformity with the rights and freedoms guaranteed by the Constitution of Canada Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006072665&idArticle=LEGIARTI000006687934&dateTexte= &categorieLink = cid"> articles L. 3213-2 and L. 3213-3 of the public health code.
The Constitutional Council,
Because of the Constitution;
Vu Order No. 58-1067 of November 7, 1958 Amending Organic Law on the Constitutional Council;
Given the decision of the Constitutional Council n ° 2011-135/140 QPC of 9 June 2011;
Seen the code of the Public health ;
In view of the regulation of 4 February 2010 on the procedure followed before the Constitutional Council on priority constitutionality issues;
In view of the observations made by the Prime Minister, recorded on 28 July 2011;
Due to the observations made for the Applicant by Laurent Friouret, lawyer at the Bar of Castres, registered on 5 August 2011;
Seen the comments in intervention presented for the information Groupe information asiles by Me Corinne Vaillant, lawyer at the Paris Bar, Recorded on July 26 and August 2, 2011;
Seen the exhibits filed and attached to the file;
Me Vaillant for the intervener and Mr. Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing of the 27 September 2011;
The rapporteur was heard;
1. Considering that the terms of Article L. 3213-2 of the Public Health, in its drafting prior to Law n ° 2011-803 of 5 July 2011 on the rights and protection of persons undergoing psychiatric care and the modalities of their care: " In the event of imminent danger to the safety of persons, attested by a medical opinion or, failing that, by the public notoriety, the mayor and, in Paris, the police commissioners arrest, with regard to persons whose conduct reveals disturbances Manifest mental illness, all necessary interim measures, to be referred within 24 hours to the representative of the State in the département which shall act without delay and pronounce, where appropriate, an order for ex officio hospitalization in The forms provided for in Article L. 3213-1. In the absence of a decision by the representative of the State, these provisional measures shall expire at the end of 48 hours." ;
2. Considering that under Article L. 3213-3 of the same Code, in its drafting prior to the same Law of 5 July 2011: " Within 15 days, and one month after hospitalization, and then at least every month, the patient is examined by a facility psychiatrist who establishes a circumstantial medical certificate confirming or reversing, if applicable, the Observations contained in the previous certificate and specifying in particular the characteristics of the development or disappearance of the conditions justifying hospitalization. Each certificate shall be transmitted to the representative of the State in the département and to the committee referred to in Article L. 3222-5 by the director of the institution " ;
3. Considering that, according to the applicant, the conditions under which a person's ex officio hospitalization can be ordered in the event of imminent danger are insufficiently framed and unfamiliar with the constitutional requirements which ensure the Protection of individual freedom; that the intervener also submits that the possibility of ordering the hospitalization of a person suffering from mental disorders on the basis of the public reputation alone is unaware of those same Requirements;
4. Considering that article 66 of the Constitution provides: 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, in the exercise of its jurisdiction, the legislator may lay down rules for the intervention of the different judicial authority depending on the nature and scope of the measures affecting the individual freedom that it intends to enact;
5. Considering that, under the 11th paragraph of the Preamble to the 1946 Constitution, the Nation guarantees to all the right to protection of health; that article 34 of the Constitution provides that the law establishes the rules concerning guarantees Fundamental rights granted to citizens for the exercise of civil liberties; that it is at all times open to the legislature, acting in the field of its competence, to adopt new provisions for which it is responsible for assessing the opportunity And amend previous texts or repeal them by substituting them, the case Other provisions, where, in the exercise of this power, it does not deprive legal guarantees of constitutional requirements;
6. Considering that hospitalization without the consent of a person suffering from mental disorder must respect the principle, as a result of article 66 of the Constitution, that individual freedom cannot be hindered by rigour Which is necessary; that it is for the legislator to ensure that the protection of the health of persons suffering from mental illness and the prevention of harm to the public order necessary for the protection of the health of persons with mental health problems are ensured. Rights and principles of constitutional value and, on the other hand, Constitutionally guaranteed freedoms; that they include the freedom to go and come and respect for private life protected by Articles 2 and 4 of the Declaration of Human Rights and the Citizen of 1789, as well as the Article 66 of the Constitution entrusts protection to the judicial authority; that infringements of the exercise of these freedoms must be adapted, necessary and proportionate to the objectives pursued;
On article L. 3213-2 of the public health code :
7. Considering, first, that, in its drafting prior to the Law of 5 July 2011, above, theArticle L. 3213-1 of the Code of Public health provides that a person with a mental disorder may be hospitalized only if his or her disorders require care and compromise the safety of the person or cause serious harm to the public order; In its decision of 9 June 2011, the Council The Constitutional Court found that such grounds can justify the implementation of a deprivation of liberty in the light of the constitutional requirements that ensure the protection of individual liberty;
8. Considering, in the second place, that the administrative authority which takes the provisional measures is obliged to refer it within 24 hours to the representative of the State in the département who may take an order of hospitalization ex officio in The conditions and forms provided for in Article L. 3213-1; in the absence of such measures, these measures shall lapse 48 hours; if Article 66 of the Constitution requires that any deprivation of liberty be placed under the control Of the judicial authority, it does not require that the judicial authority be seized The power of the mayor of the municipality or, in Paris, the commissioner of the police, to order, in the event of an imminent danger to the safety of persons, all provisional measures, in the event of an imminent danger to the security of persons, Including measures affecting individual liberty, do not misunderstand the requirements of article 66 of the Constitution;
9. Considering, in third place, that Article L. 3213-2 is applicable only in the event of an imminent danger to the safety of persons and applies only to persons whose conduct reveals manifest mental disorders; that, in those circumstances, Parliament could, without disregarding the constitutional requirements referred to above, permit an interim measure of deprivation of liberty to be ordered after a mere medical opinion;
10. Considering, however, that the deprivation of liberty provided for in Article L. 3213-2 is based on the existence of mental disorders; that, by allowing such a measure to be pronounced on the basis of the only public profile, the Provisions of this Article shall not ensure that such a measure is reserved for cases in which it is adapted, necessary and proportionate to the condition of the patient and to the safety of persons or the preservation of public order; The words: " Or, failing that, by public notoriety " Must be declared contrary to the Constitution;
11. Considering that it follows from the foregoing that, for the remainder, theArticle L. 3213-2 of the Public Health Code is not Contrary to any other rights or freedoms guaranteed by the Constitution;
OnArticle L. 3213-3 of the Health Code Public :
12. Considering that Article L. 3213-3 merely requires the examination of the patient within 15 days and one month after hospitalization and then at least every month by a psychiatrist of the institution who transmits his medical certificate to the Representative of the State in the department and the departmental commission of psychiatric hospitalizations; that, in itself, this article is not contrary to any right or freedom that the Constitution guarantees; that it must be declared in conformity with the Constitution;
For the purpose of this decision:
13. Considering that under the second paragraph of Article 62 of the Constitution: A provision declared unconstitutional on the basis of Article 61-1 shall be repealed from the publication of the decision of the Constitutional Council or a later date fixed by that decision. The Constitutional Council shall determine the conditions and limits in which the effects of the disposition may be called into question." ; that the repeal of the words: Or, failing that, by public notoriety " Takes effect from the date of publication of this Decision; that it is applicable to all proceedings not considered definitively on that date,
Decides:
Aarticle L. 3213-2 of the Public health code, the words: " Or, failing that, by public notoriety " Are contrary to the Constitution.
The declaration of unconstitutionality of Article 1 takes effect as from the publication of the Decision in accordance with the conditions laid down in recital 13.
The remainder ofitem L. 3213-2 and article L. 3213-3 of the public health code conform to the Constitution.
This decision will 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 October 6 meeting 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
