Key Benefits:
(MME EKATERINA B., EPOUSE D., AND OTHER)
The Council Lodged on 6 September 2011 by the Court of Cassation (Criminal Division, Judgment No. 4683 of 31 August 2011), under conditions Pursuant to Article 61-1 of the Constitution, of a priority question of constitutionality raised by Mrs Ekaterina B., wife D., MM. Andriy M. and Steven D., Ms. Catherine D., Ms. Laurie D., Ms. Magali D. and Ms. Morgan D., Ms. Romane D., Ms. Claire-Andrée C., widow L., and Emilie L., wife B., M. Guillaume L., Ms. Sandrine L., wife A., Gisèle L., Julie L., wife S., and Sandrine L., MM. Alois B. and Martin S., Mme Elodie L., M. Eric L., Mme Sandrine N., wife L., and Evelyne L., Mlles Mahona L., Noa R., Pauline L. and Caroline L., M. Guillaume L. and Mme Pascale L., Mlle Sophie S., Mme Odile S. and Georgette P., MM. Frédéric L., Christophe P., Pierre P., Gilles S., Antoine S., Gilbert E., Matthieu E. and Claude E., Miss Marine E., Mme Isabelle E., MM. Jerome E. and Edouard E. and Mrs. Pierrette E., on compliance with the rights and freedoms guaranteed by the Constitution of Canada Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006070719&idArticle=LEGIARTI000006418400&dateTexte= &categorieLink = cid"> articles 413-9 to 413-12 of the Penal Code, L. 2311-1 to L. 2312-8 of defense code and 56-4 of the Criminal Procedure Code.
Constitutional Council,
In view of the Constitution;
Seen underOrder No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council ;
Given the Defense Code ;
Given the Penal Code ;
Seen Criminal Procedure Code ;
Seen Act No. 98-567 of 8 July 1998 establishing a National Defence Secret Advisory Board;
Seen under Act 2008-1425 of December 27, 2008 of finance for 2009;
Seen Law n ° 2009-928 of 29 July 2009 relating to military planning for the years 2009 to 2014 with various defence provisions;
In view of the Rules of Procedure On 4 February 2010 on the procedure before the Constitutional Council for priority questions of constitutionality;
In view of the comments submitted for Mrs Ekaterina B., wife D., MM. Andriy M. and Steven D., Ms. Catherine D., Ms. Laurie D., Ms. Magali D. and Ms. Morgan D., Ms. Romane D., Ms. Claire-Andrée C., widow L., and Emilie L., wife B., M. Guillaume L., Ms. Sandrine L., wife A., Gisèle L., Julie L., wife S., and Sandrine L., MM. Alois B. and Martin S. by Olivier Morice, lawyer at the Paris Bar, registered on 23 September and 11 October 2011;
In view of the observations made for Mrs Elodie L., Mr Eric L., Mrs Sandrine N., Mrs L., and Mrs Evelyne L., Mlles Mahona L., Noa R. and Pauline L., Ms Caroline L., Mr Guillaume L. and Ms Pascale L. by the SCP Boré and Salvé de Bruneton, lawyer at the Conseil d' Etat and the Court of Cassation, registered on 23 September and 11 October 2011;
In view of the observations made for Miss Sophie S., Ms. Odile S. and Ms. Georgette P., MM. Frédéric L., Christophe P., Pierre P., Gilles S. and Antoine S. by Me Thibault de Montbrial, Bar Association of Paris, registered on September 28 and October 14, 2011;
In view of the comments filed for MM. Gilbert E., Matthieu E. and Claude E., Miss Marine E., Ms. Isabelle E., MM. Jérôme E. and Edouard E. and Mrs. Pierrette E. by Patrice Spinosi, lawyer at the Conseil d' Etat and the Court of Cassation, registered on 28 September and 14 October 2011;
Seen the observations filed for SA DCN International by the SCP Waquet-Farge-Hazan, registered on 29 September 2011;
In view of the observations submitted by the Federation of Establishments and Arsenals of the EFEDE State CFDT by the SCP H. Masse-Dessen and G. Thouvenin, registered on 29 September 2011;
Observations produced by the Prime Minister, recorded on September 29, 2011;
Seen Supplementary observations submitted by the Prime Minister at the request of the Constitutional Council for the purposes of the inquiry, registered on 14 October 2011;
Seen the documents produced and attached to the file;
Me Olivier Morice, Me Louis Boré, Me Spinosi and Me de Montbrial for the applicants, Me Claire Waquet for the SA DCN International and Me Hélène Masse-Dessen for the Fédération des establishments et arsenals de l' Etat FEAE CFDT et M. Thierry-Xavier Girardot, appointed by the Prime Minister, having been heard at the public hearing on October 19, 2011;
Le Rapporteur having been heard;
1. Considering that under the terms of article 413-9 of the Penal Code : For the purposes of this section, there is a sense of secrecy of national defence: processes, objects, documents, information, computer networks, computerized data or files of interest to the national defence which have been the subject of Classification measures to restrict their distribution or access.
" Such measures may include processes, objects, documents, information, computer networks, computer data or files whose disclosure or access is likely to impair national defence or could lead to Discovery of a national defense secret.
" Levels of classification of processes, objects, documents, information, computer networks, computerised data or files of a nature of national defence and the authorities responsible for defining the modalities according to Which is organised their protection shall be determined by decree in the Council of State " ;
2. Considering that under section 413-9-1 of the Code: " Only the places to which it cannot be accessed shall be subject to a classification in respect of the secret of national defence without the fact that, because of the facilities or activities in which they are located, such access shall, by itself, be known to National defense secret.
" The classification decision shall be taken for a period of five years by order of the Prime Minister, published in the Official Journal, after the opinion of the Advisory Committee on the Secrecy of National
. The conditions for the application of this Article, in particular the conditions for the classification of places, shall be determined by decree in the Council of State " ;
3. Whereas under Article 413-10 of the Code: It shall be punishable by seven years' imprisonment and a fine of EUR 100 000 by any person who is a depositary, by state or profession, or by reason of a temporary or permanent function or task, of a process, object, document, information, Computer network, computer data or file which has a secret character of national defence, or to destroy, divert, subtract or reproduce it, either to give access to an unqualified person or to carry it to the Knowledge of the public or unqualified person.
" It shall be punishable by the same penalties by the person who is the depositary who has allowed access to, destroy, divert, subtract, reproduce or disclose the process, object, document, information, computer network, computer data or file referred to in The preceding paragraph.
" Where the depositary has acted recklessly or negligently, the offence shall be punishable by three years' imprisonment and a fine of 45 000 euros " ;
4. Whereas under Article 413-10-1 of the same Code: It shall be punishable by seven years' imprisonment and a fine of EUR 100 000 by any person responsible, either by state or profession, or by reason of a temporary or permanent function or task, of a place classified under the secrecy of the National defence of having allowed access to an unqualified person.
" The same penalties shall be imposed by any qualified person for bringing to the knowledge of the public or of an unqualified person an element relating to the nature of the facilities or activities that such a place is home
. Where the person responsible has acted recklessly or negligently, the offence shall be punishable by three years' imprisonment and a fine of 45 000 euros " ;
5. Considering that under the terms of article 413-11 of the Penal Code : It shall be punishable by five years' imprisonment and a fine of 75,000 euros by any person not referred to in Article 413-10 of:
" 1 ° Ensuring possession, access to, or knowledge of a process, object, document, information, computer network, computer data or file that presents the character of a national defence secret;
" 2. Destroy, subtract or reproduce, in any manner, such a process, object, document, information, computer network, computer data or file;
" 3 ° Bring to the knowledge of the public or of an unqualified person such a process, object, document, information, computer network, computer data or file " ;
6. Considering that under Article 413-11-1 of the same Code: It shall be punishable by five years' imprisonment and a fine of 75,000 euros by any unqualified person:
" 1 ° Access a place classified as a national defence secret;
" 2 ° To bring to the knowledge of the public or of an unqualified person an element relating to the nature of the installations or activities that such a place houses " ;
7. Whereas under Article 413-12 of the Code: The attempted offences set out in the first paragraph of Article 413-10 and Article 413-11 shall be punishable by the same penalties " ;
8. Considering that in the terms of Article L. 2311-1 of the Defence Code : The rules concerning the definition of the information concerned by the provisions of this Chapter shall be defined by the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006070719&idArticle=LEGIARTI000006418400&dateTexte= &categorieLink = cid"> article 413-9 of the Penal Code " ;
9. Whereas, according to Article L. 2312-1 of the Code: The Advisory Committee on the Secret of National Defence is an independent administrative authority. It is responsible for giving an opinion on declassification and reporting of information which has been classified in accordance with provisions of article 413-9 of the Penal Code, excluding information whose classification rules do not fall within the scope of the Only French authorities.
" The opinion of the Advisory Committee on the Secret of National Defence shall be delivered following the request of a French
. The Chairman of the Advisory Committee on the Secret of National Defence, or his representative, a member of the Committee, shall be responsible for giving, following an application by a judge, an opinion on the temporary declassification for search purposes Places that have been classified " ;
10. Whereas under Article L. 2312-2 of the same Code: The National Defence Secret Advisory Board consists of five members:
" 1 ° A President, a Vice-President who displaces him in the event of absence or incapacity and a member chosen by the President of the Republic on a list of six members of the Council of State, the Court of Cassation or the Court of Auditors, established Jointly by the Vice-President of the Council of State, the first President of the Court of Cassation and the first President of the Court of Auditors;
" 2 ° A Member, appointed for the duration of the legislature by the President of the National Assembly;
" 3 ° A Senator, appointed after each partial renewal of the Senate by the Speaker of the Senate
The terms of reference for panel members shall not be renewable.
" The mandate of the non-parliamentary committee members is six years.
" With the exception of resignation, the duties of a member of the Commission may be terminated only in the event of the Commission's inability to act. The members of the Commission appointed to replace those whose terms of office have terminated before their normal term shall be appointed for the remainder of that term. By way of derogation from the fifth paragraph, where their appointment has been made less than two years before the expiry of the term of office of their predecessor, they may be renewed as a member of the committee." ;
11. Whereas under Article L. 2312-3 of the same Code: The appropriations necessary for the commission to carry out its mission are included in the programme of the mission " Direction of the Government's action on the protection of fundamental rights and
. The Chairman shall be the authorising officer for the expenses of the committee. He appoints the officers of the commission " ;
12. Whereas in the words of Article L. 2312-4 of the Code: A French court, in proceedings before it, may request declassification and disclosure of information, protected as a matter of national defence, to the administrative authority responsible for the Classification.
" This request is motivated.
" The Administrative Authority shall immediately refer the matter to the Advisory Committee on the Secret of National
. A judge, in proceedings before him, may request the temporary declassification for the purpose of search of places protected under the secret of national defence to the chairman of the committee. The latter shall be seized and shall inform the administrative authority in charge of the classification under the conditions laid down by the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006071154&idArticle=LEGIARTI000020931452&dateTexte= &categorieLink = cid"> article 56-4 of the Criminal Procedure Code " ;
13. Whereas under Article L. 2312-5 of the same Code: The Chairman of the Commission may conduct any useful investigations.
" The members of the commission shall be authorized to know of any classified information and to access any place classified as part of their mission
They shall be bound by the secrecy of the national defence protected pursuant to 413-9 et seq. Of the Code Criminal for facts, acts or information that they may have been aware of because of their duties.
" For the performance of its mission, the Commission, or on the delegation of its Chairman, shall be empowered, notwithstanding the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006071154&idArticle=LEGIARTI000006575024&dateTexte= &categorieLink = cid"> provisions of articles 56 and 97 of the Code of Criminal Procedure, to proceed with the opening of the seals of classified elements which Are delivered. The committee referred to it in the Minutes of the sitting. The documents shall be returned to the administrative authority by the Commission when transmitting its opinion.
" The committee shall draw up its rules of procedure " ;
14. Whereas in the words of Article L. 2312-6 of the Code: Ministers, public authorities, public officials may not object to the action of the Commission for any reason and shall take all appropriate measures to facilitate it " ;
15. Whereas in the words of Article L. 2312-7 of the Code: The committee shall deliver an opinion within two months of its referral. This opinion takes into account the missions of the public service of justice, respect for the presumption of innocence and the rights of the defence, respect for France's international commitments and the need to preserve the capacities Defense and security of personnel.
" If the votes are equally divided, the President shall have a casting vote.
" The meaning of the opinion may be favourable, favourable to partial or unfavourable declassification
The opinion of the committee shall be forwarded to the administrative authority having carried out the classification " ;
16. Whereas under Article L. 2312-7-1 of the same Code: The opinion of the Chairman of the Advisory Committee on the Secret of the National Defence on declassification of a place for search purposes, the meaning of which may be favourable, in favour of partial or unfavourable declassification, shall Consideration of the elements mentioned in the first paragraph of Article L. 2312-7 " ;
17. Whereas under Article L. 2312-8 of the same Code: Within the period of 15 clear days from the date of receipt of the opinion of the Commission, or at the end of the two-month period referred to in Article L. 2312-7, the administrative authority shall notify its decision, together with the meaning of the opinion, to the Jurisdiction that requested declassification and disclosure of classified information.
" The meaning of the opinion of the committee shall be published in the Official Journal of the French Republic " ;
18. Considering that terms of Article 56-4 of the Code of Criminal : I.-When a search is contemplated in a place specifically identified, containing elements covered by the secrecy of the national defence, the search can only be carried out by a magistrate in the presence of the President of the Commission Advisory of national defence secrecy. The latter may be represented by a member of the committee or by delegates, duly authorized to the secret of national defence, which he designates in accordance with terms and conditions laid down by decree in the Council of State. The President or his representative may be assisted by any person entitled to that effect
The list of places referred to in the first subparagraph shall be established in a precise and restrictive manner by order of the Prime Minister. This list, which is regularly updated, is communicated to the Advisory Committee on the Secret of National Defence and to the Minister of Justice, who make it accessible to judges in a secure manner. The magistrate checks whether the place in which he wishes to search is on this list.
" The conditions for the delimitation of places containing elements covered by the secret of national defence shall be determined by decree in the Council of
. To conceal in the places referred to in the preceding paragraph processes, objects, documents, information, computer networks, computer data or unclassified files, by attempting to make them benefit from the protection attached to secrecy Of the national defence, exposs its author to the penalties provided for inArticle 434-4 of the Penal Code
The search may be carried out only in accordance with a written decision of the magistrate, who shall inform the Chairman of the Advisory Commission of the Secret of the National Defence of the information relevant to the performance of his mission. The chairman of the committee or his representative shall be transported to the scene without delay. At the beginning of the search, the magistrate shall bring to the knowledge of the chairman of the commission or his representative, as well as that of the head of establishment or his delegate, or the person in charge of the place, the nature of the offence or Offences on which the investigation is carried out, the reasons for the search, its purpose and the premises affected by the search
Only the Chairman of the National Defence Secret Advisory Board, his or her representative, and, where appropriate, the persons who attend, may be aware of classified material discovered at the site. The magistrate may seize, among the classified elements, those relating to the offences on which the investigations are concerned. If the requirements of the investigation warrant that the classified material be seized in the original, copies shall be left to the holder.
" Each classified item entered is, after inventory by the chairperson of the advisory commission, placed under seal. The seals are handed over to the Chairman of the Advisory Committee on the Secret of National Defence, who becomes the guardian of the seals. Transactions relating to classified items seized and the inventory of such items shall be subject to a record which shall not be attached to the record of the proceedings and shall be kept by the Chairman of the Advisory
. Declassification and communication of the items mentioned in the inventory fall under the procedure laid down in the Articles L. 2312-4 et seq. Of the defense code.
" II. -Where in the case of a search a place is found to contain elements covered by the secret of the national defence, the magistrate present at the place or immediately notified by the judicial police officer shall inform the President of the Advisory Committee on the Secret of National Defence. Classified elements shall be placed under seal, without becoming aware of them, by the magistrate or the judicial police officer who discovered them, and then delivered or transmitted, by any means in accordance with the regulations applicable to the Secret of the national defence, to the chairman of the committee in order to ensure its custody. Operations relating to classified elements are subject to a record which is not attached to the record of the proceedings. The declassification and communication of the elements so placed under seal are covered by the procedure laid down in the Articles L. 2312-4 and later of the defense code.
" III. -Where a search is contemplated in a place classified as a national defence secret under the conditions set out in section 413-9-1 of the Criminal Code, it can only be done by a magistrate in the presence of the President of the Commission Advisory of national defence secrecy. The latter may be represented by a member of the commission and be assisted by any person authorized to do so.
" The Magistrate shall check with the Advisory Committee on the Secret of National Defence whether the place in which he wishes to conduct a search is subject to a classification
. The search may be carried out only in accordance with a written reasoned decision which indicates the nature of the offence or the offences on which the investigation relates, the reasons for the search and the object of the search, and The location of the search. The judge transmits this decision to the Chairman of the Advisory Committee on the Secret of National Defence. He shall carry it at the beginning of the search, to the knowledge of the head of establishment or his delegate, or the person in charge of the
. The search must be preceded by a decision of temporary declassification of the place for search purposes and can only be undertaken within the limits of the declassification so decided. To this end, the Chairman of the Advisory Committee on the Secrecy of National Defence, seized by the decision of the magistrate referred to in the preceding paragraph, shall promptly inform the competent administrative authority of his opinion on the Temporary, total or partial declassification of the site for search purposes. The administrative authority shall make its decision known without delay. Declassification by the administrative authority is only valid for operational time. In the case of partial declassification, the search may be carried out only in the part of the premises which is the subject of the decision to declassify the administrative authority.
" The search shall continue under the conditions set out in the sixth and subsequent paragraphs of I.
" IV. -The provisions of this Article shall be enacted on pain of invalidity " ;
19. Considering that, according to the applicants, these provisions, which relate both to information and to places classified as national defence secrets, disregard the right to a fair trial and the principle of the separation of Powers contained in Article 16 of the 1789 Declaration of Human and Citizen Rights;
On applicable constitutional standards:
20. Considering, on the one hand, that under Article 16 of the 1789 Declaration: " Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ; that under Article 5 of the Constitution, the President of the Republic is the guarantor of national independence and territorial integrity; that under the first paragraph of Article 20: " The Government shall determine and conduct the policy of the Nation " ; that the principle of the separation of powers applies to the President of the Republic and the Government; that the secret of national defence contributes to the preservation of the fundamental interests of the Nation, reaffirmed by the Charter of The environment, including the independence of the nation and the integrity of the territory; and
21. Considering, on the other hand, that Article 16 of the 1789 Declaration implies respect for the specific character of judicial functions, on which neither the legislator nor the Government, as well as the right of persons, can interfere Interested in exercising effective judicial remedy and the right to a fair trial; moreover, the search for offenders constitutes an objective of constitutional value necessary for the protection of rights and principles of Constitutional value;
22. Considering that, according to Article 34 of the Constitution, the legislature is competent to lay down the rules concerning the fundamental guarantees given to citizens for the exercise of civil liberties, the subjection of which was imposed by the defence The determination of crimes and offences, as well as the penalties applicable to them and the criminal procedure; that both the principle of separation of powers and the existence of other requirements The Constitution requires it to ensure a conciliation that is not The right of the persons concerned to exercise an effective judicial remedy, the right to a fair trial and the search for the offenders and the constitutional requirements inherent in the safeguarding of the Fundamental interests of the Nation;
On classified information under the national defence secret:
23. Considering thatArticle 413-9 of the Penal Code defines the information which may be classified under the secrecy of the National defence; that Articles 413-10, 413-11 and 413-12 of the same Code reprimand the violation of that secret; and that L. 2311-1, L. 2312-1, paragraphs 1 and 2, L. 2312-2, L. 2312-3, L. 2312-4, paragraphs 1 to 3, L. 2312-5, L. 2312-6, L. 2312-7 and L. 2312-8 of the Defence Code determine the role of the National Defence Secret Advisory Commission in the process of declassification and communication of the Classified information; that the conditions set out in paragraphs I and II of Article 56-4 of the of Criminal Procedure Access to classified information in connection with searches in The places specifically identified as containing elements covered by the secrecy of the national defence and in the places where they are found to contain elements covered by that secret;
24. Considering that, according to the applicants, by depriving the judge of the power and the means of assessing the entirety of the decisive factors for the outcome of the trial and by not providing for judicial remedy enabling a judge to carry an assessment On the nature of the classified information, the legislator ignored Article 16 of the 1789 Declaration;
With regard to the procedure for declassification and reporting of classified information:
25. Considering that underArticle 413-9 of the Penal Code, processes may be classified, Objects, documents, information, computer networks, computerized data or files whose disclosure or access is likely to impair national defence or could lead to the discovery of a secret of national defence; Classification levels and authorities responsible for Define the manner in which the protection of such information is organised by decree in the Council of State; moreover, Articles 413-10, 413-11 and 413-12 of the same Code shall punish the breach of the secrecy of the defence National;
26. Considering, first, that, where a court submits a reasoned request for declassification and the communication of protected information to the administrative authority in charge of the classification, the classification must not The Advisory Committee on the Secret of National Defence; that the Committee shall deliver an opinion within two months of its referral, taking into account the tasks of the public service of justice, respect for the presumption And the rights of the defence, respect for the international commitments of the France, as well as the need to preserve the defence capabilities and security of personnel; that for this purpose, the Chairman of the Committee may conduct all relevant investigations and the members of the Committee may accede to All classified information; that the opinion which may be favourable, in favour of partial or unfavourable declassification, is addressed to the administrative authority; that, within 15 days of receipt of the The opinion or expiry of a period of two months from the date of the referral to the committee, The administrative authority shall notify its decision, subject to the meaning of the notice, to the court concerned; that, in addition, the meaning of that notice shall be published in the Official Journal of the French Republic;
27. Considering, second, that the terms of Article L. 2312-1 of the Defence, the Advisory Committee on the Secret of National defence is a " Independent administrative authority " ; that it is composed of five members, including a President, a Vice-President and a member, all selected by the President of the Republic on a list of six members of the Council of State, the Court of Cassation or the Court of Auditors, established Jointly by the Vice-President of the Council of State, the first President of the Court of Cassation and the first President of the Court of Auditors, a Member nominated by the President of the National Assembly for the duration of the legislature and a senator Appointed by the Speaker of the Senate after each partial renewal of that Assembly; The term of office of non-parliamentary members shall be set at six years; that their term of office is not renewable; that their functions may be terminated only in the event of the inability of the committee to act; that its management autonomy is guaranteed Administrative and financial affairs; that ministers, public authorities and public officials cannot object to its action for any reason and shall take all appropriate measures to facilitate it;
28. Considering that due to the guarantees of independence conferred on the committee and the conditions and procedure for declassification and disclosure of classified information, the legislator has operated, between the requirements The provisions of Article L. 2311-1, of the first and second subparagraphs of Article L. 2312-1, of Articles L. 2312-2 and L. 2312-3, of the first to the third Paragraphs of article L. 2312-4, of article L. 2312-5 and articles L. 2312-6, L. 2312 7 and L. 2312-8 of the defense code, as well as provisions in articles 413-9, 413-10, 413-11 and 413-12 of the Criminal Code are not unconstitutional;
Concerns access to classified information in searches:
As for searches in places specifically identified as containing elements covered by the secret of national defence:
29. Considering that the provisions of article 56, paragraph 1, of the code of criminal procedure provide that the Prime Minister Establishes in a limitative manner the precisely identified places containing elements covered by the national defence secret; that this list, which is regularly updated, shall be communicated to the Advisory Committee on the Secret of National Defence And to the Minister responsible for justice; Made accessible in a secure manner to any judge concerned; that it is clear from the parliamentary proceedings that, by expression " Specifically identified place ", the legislator has heard that a building as a whole or a category of premises is not designated but a clearly determined room; that the search contemplated in a place specifically identified, housing Elements covered by the secrecy of the national defence, are not subject to prior authorisation; that the withholding of unclassified information, by attempting to make them benefit from the protection afforded to the secrecy of the defence National, is penally repressed;
30. Considering that, in those circumstances, if the legislator has subordinated the search of a magistrate in a place specifically identified as sheltering elements covered by the secret of national defence to the presence of the chairman of the committee Or his representative and ruled out the possibility for the magistrate to acquit himself of the classified material discovered on the premises, he accompanied the search procedure with guarantees of a nature to ensure, between the requirements Of the Constitutional Court, a conciliation which is not unbalanced; the provisions of article 56, paragraph 1, of the Code of Criminal Procedure are in conformity with the Constitution;
Searches in places that are found to contain elements covered by the secret of national defence:
31. Considering that the provisions of paragraph II of Article 56-4 of the Code of Criminal Procedure define the legal regime Searches in which elements protected by the secrecy of the national defence are found to be incidentally discovered; that, in such a case, the magistrate present or immediately notified by the judicial police officer shall inform the The chairman of the committee; that, without taking note of it, The magistrate or the judicial police officer who discovered them places classified elements under seal and gives them or transmits them, by any means, to the chairman of the committee responsible for ensuring custody; that a record, which is not Attached to the procedure, shall be drawn up to account for the operations relating to classified elements; that only the committee, or on the delegation of its chairman, shall be entitled to proceed to the opening of the seals of classified elements which Shall be surrendered; in such cases, the committee shall refer to it in its Minutes of Finally, the documents are returned to the administrative authority by the Commission upon transmission of its opinion;
32. Considering that it is the result of all these provisions that searches in places which are to be found to contain elements covered by the secret of national defence shall be accompanied by appropriate safeguards to ensure, between Constitutional requirements referred to above, a conciliation that is not unbalanced; that, as a , the provisions of the paragraph Article 56-4 of the Code of Criminal Procedure Are in conformity with the Constitution;
On sites classified as national defence secrets:
33. Considering, on the one hand, thatArticle 413-9-1 of the Penal Code permits the classification of places to which it cannot be Accessed without the fact that, because of the facilities or activities in which they are located, that access gives, by itself, knowledge of a national defence secret; that it provides that the classification decision shall be taken for a period of five years by order The Prime Minister, published in the Official Journal, after notice of the Advisory Committee on the Secret of National Defence; in addition, Articles 413-10-1 and 413-11-1 of the Criminal Code Reprimand the violation of these classified sites;
34. Considering, on the other hand, that it is apparent from the provisions of paragraph III of Article 56-4 of the Code of Criminal Procedure that a Search in a classified place can be carried out only by a magistrate and in the presence of the chairman of the committee; that the latter may be represented by a member of the committee and be assisted by any person entitled to that effect; that The magistrate verifies with the commission whether the place in which the It wishes to carry out a search is the subject of a classification measure; that in such a case, the judge shall state, in a written and reasoned manner, the nature of the offence or the offences on which the investigations are concerned, the reasons therefor Justifying the search and object of the search, as well as the location of the search;
35. Considering that the search in a classified place is subject to a decision of temporary declassification of the place; that, when it is seized by a judge of a request for temporary declassification, the chairman of the committee shall give a Opinion on this request to the competent administrative authority; that the latter makes known its decision without delay; that the declassification imposed by that authority is only valid for the time of operations; that in the event of declassification Partial, the search can only be carried out in the part of the place that does The purpose of the decision to declassify the administrative authority;
36. Considering that, according to the applicants, by admitting that all the evidence in classified places has the benefit of the protection of the secrecy of national defence and the subordering of searches in those places to a Authorisation of the administrative authority without any judicial review of the decision refusing the magistrate access to these places, the legislator failed to comply with Article 16 of the 1789 Declaration;
37. Considering that the classification of a place has the effect of removing a defined geographical area from the powers of investigation of the judicial authority; that it subordinates the exercise of those powers of investigation to an administrative decision; That it shall ensure that all the evidence, whatever it may be, is inaccessible to it until such authorisation has been granted; that, as a result, by authorising the classification of certain places under the Secret of national defence and by subordinating the magistrate's access to the Searches of the same places for temporary declassification, the legislator operated, between the aforementioned constitutional requirements, a conciliation which is unbalanced; thus, the provisions of paragraph III of article 56-4 of the Code of Criminal Procedure, those of articles 413-9-1, 413-10-1 and 413-11-1 of the Penal Code, those of the third paragraph of Article L. 2312-1, of the fourth paragraph of Article L. 2312-4, those of article L. 2312-7-1 of the defense code, and, therefore, the words: " And access to any classified place " In the second paragraph of Article L. 2312-5 of the same Code must be declared contrary to the Constitution;
38. 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." ; if, in principle, the declaration of unconstitutionality must benefit the author of the priority question of constitutionality and the provision declared contrary to the Constitution cannot be applied in the proceedings in progress on the date Of the publication of the decision of the Constitutional Council, the provisions of Article 62 of the Constitution reserve the power of the latter to fix the date of the repeal and carry forward its effects in time only to provide for the questioning The effect of the disposition before the intervention of that return; That, in order to allow the administrative authority to draw the consequences of that unconstitutionality, the date of this declaration of unconstitutionality should be postponed to 1 December 2011,
Decides:
The declaration of unconstitutionality of Article 1 takes effect on 1 December 2011 under the conditions set out in recital 38.
Comply with the Constitution the following provisions:
- paragraphs I and II of article 56-4 of the Code of Criminal Procedure ;
-les articles 413-9, 413-10, 413-11, and 413-12 of the Penal Code ;
-the surplus of articles L. 2312-1, L. 2312-4 and L. 2312-5 of the defense code ;
-the articles L. 2311-1, L. 2312-2, L. 2312-3, L. 2312-6, L. 2312-7 and L. 2312-8 of the defense code.
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 10 November 2011, attended by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Guy CANIVET, Renaud DENOIX de SAINT MARC, Mme Jacqueline de GUILLENCHMIDT, MM. Hubert HAENEL and Pierre STEINMETZ.
The President,
Jean-Louis Debré
