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Decision No. 2013-314 Qpc's June 14, 2013

Original Language Title: Décision n° 2013-314 QPC du 14 juin 2013

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JORF n ° 0138 of June 16, 2013 page 10024
text #31



Decision No. 2013-314 QPC of June 14, 2013

NOR: CSCX1315469S ELI: Not available



(Mr. JEREMY F.)


The Constitutional Council was seized on 27 February 2013 by the Court of Cassation (Criminal Division, Judgment No. 1087 of 19 February 2013), under the conditions laid down in Article 61-1 of the Constitution, of a question Mr. Jeremy F.'s constitutional priority, relating to the constitutionality of the rights and freedoms guaranteed by the Constitution Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006071154&idArticle=LEGIARTI000006577385&dateTexte= &categorieLink = cid"> fourth paragraph of article 695-46 of the Code of Criminal Procedure.
The Constitutional Council,
Given the Constitution;
SeenOrder No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council ;
Having regard to the Treaty on European Union;
Having regard to the Treaty on the Functioning of the European Union and in particular Protocol No 3 on the Statute of the Court of Justice of the European Union;
Seen Criminal procedure ;
Due to Act No. 2004-204 of 9 March 2004 adapting justice to developments in crime, in particular Article 17;
Seen Law n ° 2009-526 of 12 May 2009 simplifying and clarifying the law and streamlining procedures, in particular Article 130;
In view of Framework Decision No 2002 /584/JHA Council of 13 June 2002 on the European arrest warrant And the surrender procedures between Member States;
Having regard to the Rules of Procedure of 4 February 2010 on the procedure before the Constitutional Council for priority questions of constitutionality;
In view of the observations submitted for the Applicant by CPC Waquet, Farge, Hazan, lawyer at the Conseil d' Etat and the Court of Cassation, registered on 21 and 28 March 2013;
In view of the observations made by the Prime Minister, registered on 21 March 2013;
Seen the documents produced and File attachments;
Me Claire Waquet, for the applicant and Mr. Thierry-Xavier Girardot, Appointed by the Prime Minister, having been heard at the public hearing on 2 April 2013;
Given the decision of the Constitutional Council No. 2013-314P QPC of 4 April 2013;
In view of the judgment of the Court of Justice of the European Union of 30 May 2013, No. Case C-168/13 PPU;
In view of the new observations made for the applicant by the SCP Waquet, Farge, Hazan, registered on 31 May 2013;
The rapporteur having been heard;
1. Considering that the Framework Decision of 13 June 2002 laid down the European arrest warrant in order to simplify and speed up the arrest and surrender between the Member States of the European Union of the persons sought for the exercise of Criminal proceedings or for the execution of a penalty or a measure of security deprivation of libertyArticle 17 of the Law of 9 March 2004 referred to aboveinserted, in the Code of Criminal Procedure, Articles 695-11 to 695-51 relating to the European arrest warrant;
2. Whereas Articles 695-26 to 695-28 of the Code of down the rules of the procedure for the execution in France of the European arrest warrant; that the decision to surrender the issuing State to the judicial authorities shall be taken by the examining chamber under the conditions laid down by the Articles 695-29 to 695-36 of the said Code; and Paragraph of Article 695-31, if the person sought declares that he does not consent to his surrender, the Chamber of the inquiry shall decide within twenty days from the date of the appearance, unless an additional information has been ordered, by A decision which may be appealed in cassation; thatArticle 695-46 of the Code of Criminal Procedure lays down the rules Of the procedure concerning decisions taken by the authorities French judicial authorities after the surrender to the authorities of another Member State of the European Union of a person arrested in France under a European arrest warrant issued by those authorities; that, in their drafting resulting from the Href=" /viewTexte.do?cidTexte=JORFTEXT000020604162 &categorieLink = cid"> Law of 12 May 2009 referred to above, the first two paragraphs of Article 695-46 entrust the investigatory chamber with the jurisdiction to rule on any request from the authorities Competent of the Member State which issued the European arrest warrant in view To consent to the prosecution or enforcement of a penalty or a measure of security deprivation of liberty for other offences other than those for which the remission was committed and committed before, or to the surrender of the Person sought in another Member State with a view to the pursuit or execution of a penalty or a measure of security deprivation of liberty for any fact prior to the surrender and different from the offence which motivated that measure ; that to fourth paragraph of article 695-46 of the Criminal Procedure Code : " The Chamber of Education shall act without recourse after ensuring that the application also contains the information provided for in Article 695-13 and, where appropriate, obtained guarantees under the provisions of Article 695-32, within the time limit Within 30 days of receipt of the application " ;
3. Considering that, according to the applicant, by excluding any appeal against the decision of the Chamber of inquiry authorizing, after the surrender of a person to a Member State of the European Union pursuant to a European arrest warrant, the extension of the Effects of this mandate on other offences, the provisions of the fourth paragraph of Article 695-46 infringe the principle of equality before the courts and the right to an effective judicial remedy;
4. Considering that the priority issue of constitutionality concerns the words " Without recourse " In the fourth paragraph of Article 695-46 of the Code of Criminal Procedure ;
5. Considering, on the one hand, that under Article 16 of the Declaration on Human and Citizen's Rights of 1789: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ; that it is clear from this provision that there should be no substantial infringement of the right of interested persons to bring an effective remedy before a court; that, according to Article 6, the law " Must be the same for all, either protecting or punishing " ; 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 Guaranteed equal guarantees, in particular with respect to the principle of the rights of the defence, which in particular implies the existence of a fair and just procedure guaranteeing the balance of the rights of the parties;
6. Considering, on the other hand, that under Article 88-2 of the Constitution: The law lays down the rules on the European arrest warrant in application of the acts adopted by the institutions of the European Union " ; that, by these special provisions, the constituent has heard the removal of the constitutional obstacles to the adoption of the legislative provisions necessarily arising from acts taken by the institutions of the European Union relating to the European Arrest Warrant; therefore, it is for the Constitutional Council to have legislative provisions on the European arrest warrant to monitor compliance with the Constitution of those legislative provisions which Carry out the exercise by the legislature of the margin of appreciation As provided for in Article 34 of the Treaty on European Union, in its applicable wording;
7. Taking the view that, for a preliminary ruling by the decision of the Constitutional Council of 4 April 2013 referred to above, the Court of Justice of the European Union has said that: Articles 27 (4) and 28 (3) (c) of Council Framework Decision 2002 /584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by the Framework Decision 2009 /299/JHA of the Council, of 26 February 2009, must be interpreted as meaning that they do not object to an action by the Member States suspending the execution of the decision of the judicial authority which decides, within a period of thirty Days from receipt of the application, in order to give his or her consent to Shall be prosecuted, convicted or detained for the execution of a penalty or a measure of security deprivation of liberty for an offence committed before the execution of a European arrest warrant, other than that for which the order was issued. Surrender, either for the surrender of a person to a Member State other than the Member State of enforcement, under a European arrest warrant issued for an offence committed before the said surrender, provided that the final decision is adopted on time Pursuant to Article 17 " ;
8. Whereas, in the light of the fact that the decision of the Chamber of Education is rendered " Without recourse, fourth paragraph of Article 695-46 of the Code of Criminal Procedure not necessarily derive from the acts taken By the institutions of the European Union relating to the European arrest warrant; that it is for the Constitutional Council, seized on the basis of Article 61 (1) of the Constitution, to monitor the conformity of the contested provisions with the rights and Freedoms guaranteed by the Constitution;
9. Considering that after handing over the person concerned to the judicial authorities of the issuing State of a person arrested in France in execution of a European arrest warrant, the Chamber of Education, seized, in accordance with article 695-46 of the Code of Criminal Procedure, of a request to extend the effects of the mandate to other offences, possibly More serious than those that motivated the surrender, or for the execution of a sentence Or a private measure of freedom, is required to carry out formal checks and assessments of the law relating to the offences, convictions and measures concerned; that by depriving the parties of the opportunity to appeal Against the judgment of the Chamber of inquiry ruling on such a request, the contested provisions give an unjustified restriction to the right to an effective judicial remedy; that, as a result Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006071154&idArticle=LEGIARTI000006577385&dateTexte= &categorieLink = cid"> fourth paragraph of article 695-46 of the Code of Criminal Procedure, the words " Without recourse " Must be declared contrary to the Constitution;
10. 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;
11. Considering that the declaration of the unconstitutionality of the words " Without recourse " Appearing in the fourth paragraph of Article 695-46 of the Code of Criminal Procedure shall take effect as from the publication of the This decision applies to all appeals in cassation pending at that date,
Decides:

Item 1 fourth paragraph of Article 695-46 of the Code of Criminal Procedure are contrary to the Constitution.

Article 2


The declaration of unconstitutionality of Article 1 takes effect from the publication of this Decision under the conditions Under recital 11.

Item 3 Learn more about this Article ...


This decision shall be published in the Official Journal of the French Republic and notified under the conditions set out in section 23-11 of the order of November 7, 1958, above.
Issued by the Constitutional Council at its meeting on June 13 Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Nicole BELLOUBET, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Hubert HAENEL and Nicole MAESTRACCI.
Public information June 14, 2013.


The President,

Jean-Louis Debré


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