Key Benefits:
The Constitutional Council was seized by more than sixty deputies of an appeal against the law on individualization of sentences and strengthening the effectiveness of criminal sanctions.
The appeal by the Government calls for the following comments.
The members of the Board of Appeal believe that articles 19 and 22 of the law referred to, which establish a new penalty of criminal coercion, ignore the principle of legality of offences and penalties and the principle of necessity of penalties, infringe the principle of equality before the law, ignore the right to a fair trial and the principle of impartiality of the courts.
These grievances can only be dismissed.
In the first place, contrary to what the plaintiffs support, criminal constraint is a penalty which, in accordance with the provisions of Article 130-1 of the Criminal Code, has the function of punishing the perpetrator of the offence.
If it is intended to prevent recidivism by promoting integration or reintegration within society, criminal coercion obviously presents a repressive object. It allows, for a period of up to five years, to place the convicted person under control, to take measures limiting his or her rights and freedoms, for example by prohibiting him from travelling to certain places or carrying out certain professional or social activities, and to compel him to certain acts or behaviours, such as respect for a care injunction or the performance of a work of general interest.
If he or she will be treated with a more individualized and sustained socio-educational support, he or she will find himself in the same situation as a person sentenced, for example, to work of general interest, to a citizenship internship, to a stay of probation or to a stay with the obligation to perform a work of general interest, of which he or she had never been considered.
In addition, in the event of non-compliance with the obligations and prohibitions to which the convicted person is bound, he shall be liable for imprisonment for a maximum period of time fixed by the court of judgment.
Secondly, it should be noted that the imprisonment that may be imposed as part of the criminal constraint does not sanction the original offence but the incompetent, by the convict, of the penalty of criminal constraint itself.
The fact of a specific sanctioning of the non-performance of a previously pronounced sentence for a previous offence is traditional in French criminal law. This incompetent is usually an autonomous offence. ♪ articles 434-38 et seq. of the Criminal Code Thus, two years of imprisonment are punishable by a violation of various penalties imposed by a court, such as the prohibition of professional activity, the prohibition of driving a vehicle or the obligation to perform work of general interest.
In addition, it is common for the maximum amount to be determined by the sentencing court. This mechanism is more effective because it avoids further prosecution for a new offence.
This is the case for socio-judicial follow-up, in application of theArticle 131-36-1 of the Criminal Code. This is also the case for altemative or complementary penalties, pursuant to the articles 131-9 and 131-11 Criminal code.
It cannot therefore be argued that criminal coercion would ignore the principle of non bis in idem or impose a double penalty.
Similarly, it cannot be argued that limiting the maximum term of imprisonment to two years in the event of a breach of the obligations of criminal coercion would create a maximum amount of different punishment for the same offence.
The court may, for offences falling within the scope of criminal constraint, decide to impose a sentence of imprisonment within the limits of the maximum prescribed by law, which is unchanged, or, if it considers it to be better adapted, impose a criminal constraint.
Criminal coercion is not distinguished from this point of view from working sentences of general interest, citizenship training, alternative sentences ofArticle 131-6 of the Criminal Code or additional penalties imposed as a principal sentence under section 131-11. When the court pronounces these sentences, for any offence punishable by imprisonment for a term of more than two years, the failure to execute the sentence imposed constitutes a criminal offence punishable by two years' imprisonment under the terms of articles 434-38 et seq. of the Criminal Code or may be sanctioned by the enforcement judge of a term of imprisonment of up to two years by the court that has applied the articles 131-9 and 131-11 Criminal code.
Thus, the law referred to has neither the purpose nor the effect of establishing a maximum amount of penalty distinct from that provided by law.
Thirdly, contrary to what the appellants support, the referred law accurately defines the penalty of criminal constraint as well as the powers of the judges involved in the pronouncement and execution of the sentence.
It defines the minimum and maximum duration of criminal constraint that will be between six months and five years.
It accurately defines the obligations that may be imposed on the convicted by the training of judgment and the enforcement judge (general obligations and special obligations listed in the articles 132-44 and 132-45 Criminal Code, work of general interest and injunction of care).
It defines the maximum duration of imprisonment in the event of non-compliance with the obligations of criminal constraint that is two years or, if it is lower, the maximum penalty for the offence.
It also clearly defines the respective responsibilities of the magistrates called to rule.
The correctional court will decide to impose criminal constraint on the personality of the accused and the facts of the case.
In this regard, it should be noted that taking into account the facts of the species is not incompatible with the principle defined by the last paragraph of section 132-1 of the Criminal Code, in its drafting by the law referred to, that the jurisdiction shall determine "the nature, quantum and regime of penalties imposed according to the circumstances of the offence and the personality of its author".
The provisions of the first paragraph of Article 131-4-1 Criminal code only clarify and supplement these general provisions, in order to emphasize the need to individualize the penalty of criminal constraint at best.
The concept of "facts of the case" encourages the correctional court to take into account the context and relative gravity of the offence, but also the nature of the facts and the relationship with the personality of their author to determine whether individualized and sustained socio-educational support must be imposed by a criminal constraint, to determine the duration of the constraint and the maximum duration of imprisonment in the event of breach of the obligations imposed on the convicted person.
The court will also determine the contents of the obligations if it has sufficient information on the personality of the convicted person and his material, family and social situation. This may be the case when an adjournment for personality investigations has been ordered. Certain obligations may also be imposed immediately as a result of their safety status, such as the prohibition of meeting the victim or appearing in certain places.
The enforcement judge will ensure the enforcement of the criminal constraint sentence. After an evaluation of the penitentiary service for insertion and probation, it may determine the content of the obligations if the court has not done so and, if not, amend, supplement or delete those obligations. It will then be able to adapt them during the execution of the sentence, and especially after each assessment, at least annually.
In the event of non-compliance, he or she may make a recall to the law, aggravate those obligations or, in the most serious cases, refer to the president of the court or a judge designated by law for the enforcement of imprisonment, by ordering a provisional incarceration as appropriate. In the event of the convict's incarceration for another reason, he may order the suspension of the criminal constraint. Upon compliant requisitions of the public prosecutor, he or she may order the early termination of the sentence after one year.
In this regard, the Government considers that the principle of legality of offences and penalties is not an obstacle to a part of the content of the sentence being established by the enforcement judge, provided that it is adjudicated within the framework specifically and previously defined by law. This form of injury allows the penalty to be fully defined after an assessment by the prison service of insertion and probation in order to be best suited to the material, family and social situation of the convicted person.
It may also be noted that the sentencing judge may already amend the obligations of a probationary stay established by the correctional court in accordance with the provisions of Article 739 of the Code of Criminal Procedure. It may also convert a prison sentence imposed by the correctional court to a suspended sentence with the obligation to perform work of general interest or fine days, in accordance with provisions of Article 132-57 of the Criminal Code and articles 733-1 and 747-1-1 Code of Criminal Procedure.
Where applicable, the President of the High Court or the judge by him or her delegate will only be called upon to rule on the execution of a prison in the event of a breach of obligations or, in the event of opposition by the public prosecutor, on the early termination of the sentence.
In the fourth place, by creating criminal constraint, the referred law cannot be viewed as impairing the principle of necessity of punishment.
The simple fact that, in the context of a criminal constraint, the judge may order both the obligations and prohibitions provided for in the matter of probation, the obligation to perform work of general interest and an injunction of care may not be regarded as a lack of understanding of this principle.
In the fifth place, the fact that the judge of enforcement of sentences may refer to the president of the court or a judge by him or her delegate for the purpose of deciding on imprisonment in the event of non-compliance with the measure of constraint and order the provisional incarceration of the convict while acting in the definition of the obligations to which the convict is subjected and that he shall monitor and control it shall not be regarded as infringement of the principle of impartiality.
Indeed, the maximum term of imprisonment will be fixed by the correctional court. And the sanction of the violation of the obligations of criminal constraint shall be provided by the president of the High Court or the judge by him or her delegate, on his or her own motion or on the requisitions of the public prosecutor, by the enforcement judge.
This clearly distinguishes the sentencing, the monitoring of its execution and the sanction of its violation.
The possibility for the enforcement judge to provisionally incarcerate the convicted person until the judge's decision meets the constitutional objective of security. It is also provided in general, with respect to the application of penalties, byArticle 712-19 of the Code of Criminal Procedure. This measure meets the principle of proportionality, pretrial detention cannot exceed a period of fifteen days.
In this regard, it should be noted that, contrary to the support of the members of the Board of Appeal, the competence given to the President of the Tribunal or the judge by him or her delegate to determine the term of imprisonment to be carried out cannot be considered as unaware of the authority of the matter being tried.
The term of imprisonment established by the correctional court to punish the eventual breach of obligations by the convicted person is only a maximum. The judge ' s decision to hold a lower period of time therefore does not question the decision of the court of judgment. This possibility is essential to respect the principle of proportionality of penalties. If it is at the very end of the criminal constraint that the convicted person breaches an obligation or if the breached obligation is of low importance, it would be excessive for the judge to be required to impose a term of imprisonment corresponding to the maximum period decided by the correctional court. The ability to set a term of imprisonment less than this maximum duration is also essential for reasons of effectiveness to allow for a short period of imprisonment if necessary if it is most appropriate in the course of the convicted person.
Finally, contrary to what the plaintiffs support, the enforceable nature of the criminal constraint cannot be viewed as an automatic penalty or a lack of knowledge of the presumption of innocence.
Criminal coercion is intended to apply, as indicated in new article 131-4-1 of the Criminal Code, to convicted prisoners whose personality and situation "justify individualized and sustained socio-educational support". It stands out, on this point, of a conditional measure with test which can be fairly formal. It also requires an assessment of the convicted person by the prison service of insertion and probation, with the drafting of a report to the enforcement judge within four months. This condition requires that the convict be summoned as soon as possible before the penitentiary service to insert and probation. In addition, since the personality of the convicted person requires strengthened follow-up, the correctional court will, in most cases, impose security measures that must be immediately applicable.
These characteristics require that criminal coercion be enforceable by provision.
In close cases, the legislator also provided for certain decisions to be enforceable by provision.
This is the case with the decision of the Correctional Court in the event of a probation adjournment, pursuant to the second paragraph of Article 132-63 of the Criminal Code, because of the systematic articulation between the intervention of the court and the enforcement judge and the existence of short time limits, the trial until the hearing on the sentence for only one year.
Similarly, all measures taken by the enforcement judge are enforceable by provision of full law (Article 712-14 of the Code of Criminal Procedure and article 763-3 for socio-judicial follow-up.
For all of these reasons, the Government is of the opinion that the grievances articulated in the referral are not likely to lead to the censorship of the referred law.
He therefore considered that the Constitutional Council should reject the appeal before it.
