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The Constitutional Council was seized by more than sixty deputies to decide on compliance with the Constitution of the Geolocation Act.
This referral calls on the Government to make the following observations.
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The Court of Cassation ruled, by two judgments dated 22 October 2013, that the use of geolocation measures in the context of an investigation under the authority of the Prosecutor ' s Office was based on a legal basis that was insufficiently accurate with regard to the interference in the privacy it entails.
The legislator therefore wished to define, by law before the Constitutional Council, a coherent legal regime that ensures a conciliation that meets the requirements of the jurisprudence between, on the one hand, the prevention of infringements of public order and the search for perpetrators of offences, both necessary for the safeguarding of rights and principles of constitutional value, and on the other hand, the protection of other rights and freedoms protected by the number of which the right to
The Constitutional Council considers that, if the legislator can provide for special investigative measures to detect crimes and offences of particular gravity and complexity, to gather the evidence and to search for the perpetrators, it is subject to the fact that these measures are carried out in accordance with the prerogatives of the judicial authority, guardian of individual freedom, and that the restrictions they make to the constitutionally guaranteed rights are necessary to
Cases where geolocation measures can be used and the management of these measures meet these requirements.
First, it should be noted that geolocation measures are similar to filtering measures traditionally implemented by the police. They are intended to track the person's movements, most often by ensuring the location of his mobile phone. They do not allow to monitor the exchanges that the person in question may have with others, unlike the telephone interception measures, the sounding measures or the capture of computer data. The violation of the right to privacy induced by the use of geolocation is therefore in no way comparable to that created by the special investigative measures provided for in the Code of Criminal Procedure the Commission has considered in decision No. 2004-492 DC above.
The legislator has ensured that the use of geolocation is proportionate to the seriousness of the offences committed.
TheArticle 230-2 of the Code of Criminal Procedure provides that it may be resorted to a geolocation measure to seek perpetrators of the offences provided for in Book II (crimes and offences against persons) or to Articles 434-6 (which punishes the fact of helping the perpetrator or accomplice of an act of terrorism to escape justice) and 434-27 (which punishes the escape) of the Criminal codepunished by imprisonment for at least three years and the perpetrators of crimes and other offences punishable by at least five years' imprisonment. It may also be resorted to a geolocation measure in the event of the discovery of a gravely injured body or person when the causes of death or injury are unknown or suspect, in the event of the disappearance of a minor or a major protected person, as well as to find a person fleeing while the person is subject to a warrant of arrest or has been sentenced to a penalty of deprivation of liberty at least one year.
The legislator therefore reserved the use of geolocation measures to situations of particular gravity.
The legislator also provided for the use of geolocation measures to be taken under the effective control of the judicial authority, which, as the Constitutional Council consistently recalls, includes both the magistrates of the headquarters and the prosecutors of the public prosecutor.
Section 230-33 of the Code of Criminal Procedure provides that the geolocation operation is authorized by an investigating judge for a maximum period of four months renewable in the context of an investigation or information for the purposes of the death or causes of disappearance referred to in sections 74, 74-1 and 80-4.
As part of a flogging investigation, preliminary investigation or a procedure provided for in articles 74 to 74-2 of the Code of Criminal Procedure, the operation is authorized by the Public Prosecutor for a maximum period of fifteen days. At the end of this period, the extension of the operation must be authorized by the Freedoms and Detention Judge for a maximum period of one renewable month.
The intervention of the prosecutor of the Republic is part of the general control that the prosecutor exercises on the investigative measures. The Constitutional Council had the opportunity to recall, when the legislator allowed the use of the special powers of investigation and instruction applicable in matters of organized crime to offences of corruption or trafficking in influence, aggravated tax evasion or customs offences punishable by imprisonment for more than five years, that some of its powers of investigation are placed under the control of the prosecutor's office as the techniques of infiltration. Similarly, the Constitutional Council validated the prosecutor's control over certain private measures of investigation of freedom. This is how it is for the public prosecutor to control the custody and its extension up to forty-eight hours (Decision No. 2010-14/22 QPC, cons. 26) and to have the person referred after the custody (Decision No. 2011-125 QPC, cons. 8).
The European Court of Human Rights also considers that a geolocation measure may be ordered by the prosecution authorities as long as the legality of this monitoring measure could be controlled by criminal courts in the subsequent criminal proceedings against the person concerned (CEDH, Uzun v. Germany, 2 September 2010, § 71).
The legislator was therefore able to provide that the prosecutor of the Republic may order a geolocation measure for a maximum period of fifteen days.
If section 230-35 of the Code of Criminal Procedure provides that a geolocation operation may be established by a judicial police officer, this power of initiative is closely supervised.
It may only be exercised as part of an emergency resulting from an imminent risk of depletion of evidence or serious breach of individuals or property. The judicial police officer shall immediately inform the judicial authority of the establishment of geolocation. The judge may order without delay the release of this measure. This arrangement is similar to the provisions that allow a judicial police officer to carry out the custody of a suspect in order to "preclude the person from altering evidence or material evidence," the judicial authority must be immediately informed of that measure.
The continuation of the operation shall be subject to a written authorization from the magistrate within 24 hours. Factual circumstances establishing the existence of the imminent risk should be mentioned on the authorization of the operation, which will allow judicial review during the criminal proceedings.
Article 230-35 expressly provides that the judicial police officer shall not be able to establish a geolocation device in a place of residence without prior agreement of a judge of the seat.
Article 230-34 of the Code of Criminal Procedure provides that the establishment of a geolocation device in a place of residence must be authorized by a judge of freedoms and detention where the authorization is normally the responsibility of the prosecutor of the Republic or where the authorization is normally the responsibility of the investigating judge but the operation must intervene at night.
The Government therefore considers that the general system of geolocation meets all constitutional requirements that apply to investigative measures.
The legislator also wanted to provide for a specific device to protect the identity of people who allow the law enforcement to lay geolocation tags. These operations can be based on information that defines the location of vehicles used by offenders to allow them to be tracked. This information may come from police informants but also from simple citizens, such as vehicle rentals, people working in parking or garage operators.
Article 230-40 of the Code of Criminal Procedure provides that certain information relating to the laying of geolocation tags does not appear in the record of the procedure when the knowledge of this information is likely to seriously endanger the life or physical integrity of a person, family members or relatives.
This procedure is not unprecedented in the Code of Criminal Procedure. The latter provides for the existence of a separate file not accessible by the parties to protect the lives of anonymous witnesses.
The Constitutional Council considers that Article 16 of the 1789 Declaration, which states that "Every society in which the guarantee of rights is not guaranteed, nor the separation of powers determined, has no Constitution", guarantees the right of interested persons to exercise an effective judicial remedy, the right to a fair trial and the principle of the contradictory (Decision No. 2011-126 QPC, cons. 7).
The Government considers that if the principle of conflict is an essential aspect of the right to a fair trial, there are cases where this principle must be reconciled with other constitutional value requirements or objectives such as safeguarding the fundamental interests of the Nation, seeking the perpetrators of offences or the need to protect the lives of those who assist law enforcement. However, legislative exceptions must be strictly limited to the measures necessary to protect these other interests. And these exceptions must be surrounded by procedural guarantees to ensure that they do not make it impossible to defend the persons involved.
The Constitutional Council has already had the opportunity to consider that the right to a fair trial guaranteed by Article 16 of the 1789 Declaration must be reconciled with other requirements. On the occasion of a priority question of constitutionality on the procedure for the protection of the secrecy of national defence, he found that the principle of separation of powers and the existence of other constitutional requirements may impose on the legislator a conciliation that is not unbalanced between the right of interested persons to exercise an effective legal remedy, the right to a fair trial, and the search for the authors of infringements and the constitutional requirements The Constitutional Council has examined the guarantees provided by the declassification procedure to consider that the legislator, between the different constitutional requirements, has made a conciliation that is not unbalanced, even if it may lead, in some cases, to deprive the judge of relevant documents to appraise the guilt of a defendant.
The European Court of Human Rights also considers that it may be necessary, in some cases, to conceal certain evidence in the defence, so as to preserve the fundamental rights of another individual or to safeguard an important public interest such as national security or the need to keep secret police methods in search of offences. However, only the right to a fair trial is legitimate, the measures restricting the rights of the defence which are absolutely necessary and the limitation of the rights of the defence must be sufficiently compensated by the procedure before the judicial authorities (CEDH, Rowe and Davis v. the United Kingdom, 16 February 2000, § 61).
The European Court of Human Rights has therefore ruled that the use of anonymous or absent witness statements as a single and determinant evidence of the conviction does not undermine the right to a fair trial when this use is counterbalanced by guarantees ensuring the fairness of the overall proceedings before the courts (CEDH, Al-Khawaja and Tahery v. the United Kingdom, 15 December 2011).
For the same reasons, the Government considers that Article 230-41 is in conformity with the Constitution.
This section provides an exception to the principle of conflict to prevent the disclosure of information that could seriously endanger the life or physical integrity of a person, family members or relatives. This exception may only apply in the instructions for a crime or offence covered by theArticle 706-73 of the Code of Criminal Procedure. These offences, which fall under organized crime, are characterized by the security and life of individuals and are often the result of groups of individuals capable of extremely violent actions against those who assist the police. The Constitutional Council also found that the offences under article 706-73 are sufficiently serious and complex so that the legislator could have set special rules of criminal procedure (decision No. 2004-492 DC, cons. 19).
In addition, the legislator has strictly defined the information that may be removed from the contradictory to respond to the need to protect the lives of those who assist the police. Thus, only information relating to the date, time or place where the geolocation mark has been installed or removed, as well as the location data and elements for identifying a person who has been involved in the installation or withdrawal of the tag, may be extracted from the procedural file.
Given the strictly circumscribed nature of this information, in almost all cases, their occultation should not result in the removal of the entire piece that contains this information from the procedural file. The person under review may consult the private part of these statements.
Finally, the legislator has provided important procedural guarantees to ensure that derogations to the principle of conflict to protect the lives of law enforcement personnel do not deprive the person being examined or the witness being assisted of information essential to the exercise of the rights of defence.
In the first place, it has provided that the use of this system would be subject to the assessment of two judges, the examining magistrate, who will apply to it, and the judge of freedoms and detention who will decide whether or not to implement it.
It has, in the second place, provided that this decision may be contested before the president of the board of inquiry.
In order to allow this challenge, the decision indicating that information has been withdrawn from certain procedural documents pursuant to Article 230-40 of the Code of Criminal Procedure will be placed on file. The person being examined or the assisted witness may challenge this decision within 10 days of notification of what geolocation operations have been carried out under section 230-40 of the Code of Criminal Procedure, which may, if any, be made by the examining magistrate in the course of an interrogation.
The presiding officer of the board of inquiry may exercise his control over the documents containing the information that will be placed in a separate case and on the request of the investigating judge. This information will be entered on a listed registry and will be posted to the High Court.
If it finds that geolocation operations have not been carried out on a regular basis or that undisclosed information is essential for the exercise of the rights of the defence, the president of the board of instruction may order the cancellation of geolocation.
In these circumstances, the Government considers that the legislator has made a balanced reconciliation between respect for the rights of defence and respect for the principle of conflict and the need to preserve the security of persons who assist law enforcement forces in the fight against organized crime.
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For all of these reasons, the Government is of the opinion that the law before the Constitutional Council is in conformity with the Constitution.
