Key Benefits:
The Anti-Terrorism Act with Miscellaneous Provisions On security and border controls, adopted on 22 December 2005, was referred to the Constitutional Council by more than 60 senators criticising, in particular, Articles 6 and 8.
This appeal calls on the Government to The following observations.
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I. -On Article 6
A. -Article 6 of the law referred to, amending the code of posts and electronic communications and Act No. 2004-575 of 21 June 2004 on confidence in the digital economy, provides for the prevention and suppression of acts of terrorism, Authorised agents of the police and gendarmerie services may require the communication of certain data kept and processed by electronic communications operators, providers of access to online communication services And operators who store signals, writings, images, sounds or messages of any kind provided by recipients of these services.
The petitioners argue that these provisions would not be subject to section 66. Of the Constitution as well as the terms of Articles 2, 4 and 16 of the Declaration of Human and Citizen Rights.
B.-The Government considers that such criticism is unfounded.
The criticism of Article 6 of the The aim is to strengthen the legal means of action of the services involved in the fight against terrorism, by providing for the possibility for these services to obtain, in advance of judicial proceedings, certain information which may prove to be Decisive for the prevention of terrorist acts.
In fact, terrorist networks intensively use modern communication methods, which allow them to exchange information quickly, discreetly and stealthily. The identification of members of these networks and terrorist threats can be greatly facilitated by the exploitation of data relating to the use of such communication processes, such as subscription or connection data or data
It is in this context that the legislator decided to adopt Article 6, which supplements the legislation in force in order to establish an administrative requisition procedure for the services of Police and gendarmerie specialised in the fight against terrorism to be given some of the technical data kept and processed by operators and providers mentioned in Article L. 34-1 of the Postal Code and of the Electronic communications as well as by providers mentioned in 1 and 2 of the I of Article 6 of Law No. 2004-575 of 21 June 2004 on confidence in the digital economy. This new procedure, intended for the prevention of acts of terrorism, is part of an administrative police framework, upstream of any judicial procedure.
Article 6 establishes, in a preventive administrative framework, a system of Requisition analogous to the judicial requisition of these same technical data, already organised by Articles 60-1 and 99-3 of the Code of Criminal Procedure and by Article L. 34-1 of the code of electronic communications posts. To these possibilities of requisitions under the jurisdiction of the judicial police, ordered in the framework of open judicial procedures for the suppression of specific offences, Article 6 adds an opportunity for administrative requisition. Likely to be implemented by specialized counter-terrorism services before judicial proceedings are initiated.
1. Those provisions of Article 6 of the law referred to cannot be found to be contrary to Article 66 of the Constitution.
(a) In this regard, it should be noted that the authors of the appeal are not aware of the scope of the concept of freedom Article 66 of the Constitution and the case-law of the Constitutional Council.
Article 66 of the Constitution provides that " No one shall be arbitrarily detained " And " The judicial authority, the guardian of Personal freedom, ensures that this principle is respected in accordance with the conditions laid down by law." These provisions entrust a prominent role to the judicial authority for the protection of individual liberty and have the effect of requiring the legislature to submit to the intervention or control of the judicial judge the measures involving This freedom.
But individual freedom, within the meaning of article 66 of the Constitution, does not include all aspects of the individual's freedoms that are guaranteed by the texts and principles of constitutional value. It seeks, in line with the first paragraph of Article 66, the freedom not to be arbitrarily detained; it concerns, as a result, measures which lead to the physical protection of persons. But it does not include other freedoms of the person, such as the freedom to go and come or respect for privacy, or the freedom to marry: if these freedoms obviously enjoy constitutional protection, they do not Constitutional basis Article 66 of the Constitution, but other constitutional provisions, in particular Articles 2 and 4 of the Declaration of Human and Citizen
. Today firmly committed (Decision No. 99-411 DC of 16 June 1999; Decision No. 99-416 DC of 23 July 1999; Decision No. 2002-461 DC of 29 August 2002; Decision 2003-467 DC of 13 March 2003; Decision No. 2003-484 DC of 20 November 2003; Decision No. 2004-492 DC of 2 March 2004; Decision No. 2004-499 DC of 29 July 2004). It follows that the constitutional requirements for the protection of these freedoms do not impose the intervention of the judicial judge, whereas Article 66 of the Constitution imposes it on individual
. The obtaining by certain police or gendarmerie services of technical data relating to electronic communications does not translate any constraints on persons; this measure cannot, therefore, be regarded as Infringement of individual liberty within the meaning of Article 66 of the Constitution. Without doubt, obtaining such information may be of such a nature as to affect privacy; but the requirements resulting from Article 2 of the Declaration of Human and Citizen Rights do not imply that such data should be obtained Be subject to the intervention or control of the judicial authority. It cannot be argued, therefore, that Article 6 of the law referred to would be contrary to Article 66 of the Constitution because it would not provide for the intervention of the judicial judge in this administrative procedure for obtaining certain Connection data.
(b) In addition, the Government considers that the fact that the legislature had previously instituted a judicial requisition mechanism in Articles 60-1 and 99-3 of the Code of Criminal Procedure does not preclude this That it may decide, within the framework of its discretion, to set up a parallel system of administrative requisition, provided that these two devices fulfil different purposes. In fact, the judicial requisition is aimed at the prosecution and punishment of offences in the context of judicial police operations under the control or direction of the judicial authority; the administrative apparatus set up by The legislation referred to is intended, in advance of any judicial procedure, to prevent breaches of public order, in particular breaches of the security of persons and property, which is the responsibility of the administrative
. Referred to, that Article 6 mentions that this system is hereby established ' To prevent and suppress acts of terrorism ". This drafting, which includes, in relation to the initial drafting of the bill, an addition mentioning the " Repression " Acts of terrorism, the result of parliamentary work.
But this addition, in the eyes of the Government, cannot be Effect of amending the administrative nature of the measure introduced by Article 6. In particular, the Government considers the addition of the words " And repressing " Has neither the purpose nor the effect of allowing the use of the procedure of Article 6 where judicial proceedings are open and the procedure of Judicial requisition organised by the Code of Criminal Procedure; in this case, the judicial procedure is the only one liable to be implemented.
The concern of Parliament has been to demonstrate that the operative part of Article 6 is part of a A comprehensive approach to the fight against terrorism integrating a dimension of prevention and a dimension of repression and stressing the importance of the correct articulation between the different devices. Parliamentary work has underlined the need, in the context of the fight against terrorism, to have an appropriate administrative tool to prevent attacks on the security of persons even though no offence has yet been committed Committed. It was also stressed that it was important for the judicial authority to be notified by the administrative authority whenever administrative police operations lead to the identification of an offence and that it be made to the Which have been obtained in the framework of the administrative police. From this point of view, the reference introduced in Article 6 merely refers to situations in which the specialised services officers may refer the matter to the judicial authority for the elements they have obtained in the course of carrying out their duties. Administrative police, identifying or identifying situations likely to constitute offences for which prosecution and punishment are the sole responsibility of the judicial
. In view of the objective pursued by the legislature and the various guarantees it has set up, the provisions of Article 6 of the law referred to do not unreasonably infringe the right to privacy resulting from the Article 2 of the Declaration on Human and Citizens' Rights.
the one hand, it must be pointed out that the mechanism established by Article 6 is capable of being implemented only in the context of the fight against acts of terrorism, The exclusion of any other purpose, that is to say, in respect of acts constituting a threat of particular gravity for the safeguarding of public order.
On the other hand, it must be stressed that the infringement that is likely to be brought to private life in Section 6 of the Act remains limited. Indeed, only technical data relating to the use of electronic communications methods, such as subscription or connection numbers, the date or duration of the electronic communications, can be obtained in this administrative police framework. Communication, the location of the devices used. On the other hand, the operative part of Article 6 does not in any way allow the police and gendarmerie to know the content of the messages exchanged. It does not, therefore, have the same scope as the security intercepts governed by Act No. 91-646 of 10 July 1991.
In addition, the legislator ensured that appropriate safeguards were put in place to supervise the implementation of this Administrative requisition.
Thus, the right of requisition is only open to certain restricted agents listed. These officers shall be members of the police and gendarmerie services specially responsible for counter-terrorism missions; the list of national police and gendarmerie services specially responsible for these missions shall be, in accordance with Section 33 of the Act referred to by an interdepartmental order. These agents must, moreover, be individually appointed and empowered under conditions laid down in regulatory acts which will be taken after the opinion of the National Commission for Informatics and Freedoms (CNIL) pursuant to the law of 6 January 1978 relating to computers, files and freedoms.
In this regard, it may be indicated that the designated officers will report directly to the units or services directly assigned to the counterterrorism control of the Territory, the Central Directorate of General Information, the Central Directorate of the Judicial Police, the Coordination Unit for the Fight against Terrorism, the Directorate-General of the National Gendarmerie and, in Paris, the Regional management of the general information of the police prefecture and the regional police directorate of the police prefecture.
In addition, the technical data likely to be obtained are exhaustively listed By law. These are the data allowing the identification of the subscription or connection numbers of a designated person, the location data of the terminal equipment, technical data relating to the recipients, the duration and the date of the A subscriber's communications. The law excludes the provision of data relating to the content of communications.
In addition, the law specifies how the device is to be implemented. Requests for communication must be reasoned and subject to the decision of a qualified person, placed with the Minister of the Interior, appointed by the National Commission for the Control of Security Intercepts, Administrative Authority Act No. 91-646 of 10 July 1991. This body may, at any time, carry out checks and, when it finds a breach of the defined rules or an infringement of rights and freedoms, it seizes the Minister of a recommendation
To challenge the conformity with the Constitution of the law referred to, that different control arrangements have been instituted by the legislator in relation to security intercepts. It should be recalled, in this regard, that the operative part of Article 6 does not have the same scope as security intercepts, in that it does not provide information on the content of the messages exchanged. As regards the communication of technical data relating to telephone or electronic communications, the provisions laid down in the present case by the legislator are adapted and provide sufficient guarantees. The protective mechanism established by the legislator thus provides for the prior intervention of a qualified person and the control of the National Commission for the Control of Security Intercepts. For its part, Article 3 of the Act of 10 July 1991 stipulates that the authorisations for security interception are given by a decision of the Prime Minister, that their number may be contingent, that the National Commission of Control shall ensure compliance Of the applicable regulations and may, when it considers that an interception has been authorized in disregard of the law, make a recommendation that the interception be stopped.
It should be observed that the Commission National security intercepts control is called to ensure effective control of the device. The committee has a real power to designate a qualified person to decide requisitions, on the basis of a list of at least three names proposed by the Minister of the Interior. The Commission shall also have control powers which it may implement on its own initiative or on the basis of a complaint by a person with a direct and personal interest. These controls will also be facilitated by the fact that requests for data, along with their reasons, are recorded and communicated to the Commission.
No doubt the legislator did not The Commission has a decision-making power when it finds a breach of the regulations. Nor does it have any more with regard to security intercepts. However, this power of recommendation is not limited by the law and it involves, for the Minister of the Interior, taking a position and making known to the committee, within a period of 15 days, the measures taken in response to a recommendation. Such a mode of control by an independent administrative authority appears appropriate to the particularities of the material.
II. -On Article 8
A. -Article 8 of the Act referred to, amending Article 26 of Act No. 2003-239 of 18 March 2003, lays down the conditions for the implementation of fixed or mobile devices for the automated control of the identifying data of vehicles taking the Photograph of their occupants, for the purpose of preventing and suppressing terrorism and facilitating the recognition of certain criminal offences.
The authors of the reference invoke the terms of article 66 of the Constitution and Article 2 of the Declaration of Human Rights and Citizens to argue that the provisions of Article 8 would violate the freedom to go and come and respect for privacy. They argue, moreover, that the impugned provisions would be tainted by negative incompetence and disregard Article 34 of the Constitution.
B. Such complaints can only be
. Provisions relating to the automatic monitoring of vehicle identification data, as a result of Article 26 of the Act of 18 March 2003, with a view to making this device more operational and adapting it to the needs of the fight against terrorism And certain forms of crime and organised crime. Article 8 lays down, in a precise way, the guarantees attached to the implementation of this system.
Article 26 of the Act of 18 March 2003, in its initial drafting, already authorised the establishment, at any appropriate point in the territory, of Fixed or mobile devices for automated control of vehicle identification data for systematic consultation of the stolen vehicle file. It also provided for these devices to be put in place, on a temporary basis, for the preservation of public order at special events or large gatherings of persons.
Section 8 of the Act is comprehensive These three-point provisions. First, it specifies and extends the purposes of this control system: the law states that it aims to enable the detection of theft and recel infringements of stolen vehicles, the prevention and suppression of acts of terrorism, the Recognition of criminal or organised crime offences referred to in Article 706-73 of the Code of Criminal Procedure, the finding of offences committed in organised bands provided for in Article 414 of the Customs Code and of Certain offences set out in Article 415 of the same Code; in addition, the law shall retain the administrative police objectives laid down in the second subparagraph of Article 26. Secondly, Article 8 provides that the taking of the occupants of the vehicle is permitted. Third, it specifies how the data should be treated, consulted and stored.
1. As before, the complaint under Article 66 of the Constitution can only be rejected. Not further than in Article 6, the implementation of the automated monitoring device for the MSDSs of vehicles governed by Article 8 does not result in coercive measures leading to the physical insuring of persons. Thus, it does not affect individual freedom within the meaning of Article 66 of the Constitution. It is not possible, therefore, to refer to this Article 66 in order to argue that the establishment of this control mechanism should be subject to the intervention or control of the judicial
. Does not require that this automated control device be, by reason of its very nature, placed under the control of the judicial judge.
It must be stressed, in this respect, on the various purposes assigned by the law to this instrument of control Special. These purposes may, depending on the circumstances and the information gathered, be administrative in nature and aim at the prevention of disturbances of public order, under the control of the administrative jurisdiction (prevention of terrorism, preservation of Public order on the occasion of certain particular events), be of a judicial nature and aim at the recognition and suppression of certain enumerated offences, under the exclusive control of the judicial authority and in compliance with the The principles of criminal procedure.
No principle of constitutional value precludes a single instrument from being set up in order to respond to different administrative or judicial purposes. French law already knows examples of automated devices which can have both a judicial purpose and an administrative purpose: this is the case for certain files, such as the system for dealing with infringements found (STIC) or the automated court file for sex offenders (FIJAIS). ICTS has a dual purpose, enshrined in law, and can be consulted for administrative police purposes in accordance with article 25 of Act No. 2003-239 of 18 March 2003 and in the field of judicial police under section 21 of the Act. The Constitutional Council recognised the conformity of these provisions of the Act of 18 March 2003 to the Constitution (Decision 2003-467 DC of 13 March 2003). Similarly, FIJAIS, which was established by the law of 9 March 2004, may be questioned by judicial authorities and judicial police officers in certain judicial proceedings and be consulted by prefects and some Administrations for the performance of tasks within its competence. These provisions were found to be in conformity with the Constitution (Decision No. 2004-492 DC of 2 March 2004).
same applies to video surveillance systems ensuring the transmission and recording of images taken on public roads, Which can be implemented for administrative purposes, such as ensuring the protection of public buildings and installations, and for judicial purposes, such as those for infringements of traffic rules (V. Decision No 94-352 DC dated 18 January 1995).
2. The provisions of section 8 of the Act do not constitute an undue infringement of constitutionally guaranteed rights and freedoms.
a) On the one hand, one will observe that, contrary to what is sustained, the freedom to go and come is not In no way affected by the provisions criticised, since the passive automatic control mechanism has neither the purpose nor the effect of impeding the movement of persons and limiting freedom of movement. The grievance resulting from the infringement of the freedom to go and to come cannot, therefore, be dismissed as missing in fact.
b) On the other hand, it must be stressed that the infringement of the right to privacy remains limited and that it Is justified by the imperatives of safeguarding public order. It must also be noted that the system adopted by the legislator contains numerous safeguards.
In particular, it must be borne in mind that the personal data which will be collected will be subject to the provisions of Act No. 78-17 of 6 January 1978 relating to computers, files and freedoms. The guarantees of the 1978 law will be fully applicable.
It is also possible to observe that the law lays down detailed rules for the consultation, processing and preservation of the data collected. It determines in a limited way with which files the information collected can be compared: it is exclusively the automated processing of data relating to stolen or reported vehicles and data from the information system Schengen (SIS) relating to stolen or reported vehicles. The law also specifies that access to treatment is reserved, in the case of prevention and suppression of terrorism, to individually designated and duly authorized officers of the police and gendarmerie services specially responsible for these Missions. In addition and in general, the regulatory acts of application will specify, in accordance with the law of 6 January 1978, the modalities of empowerment of staff with access to treatment: access will be subject to individual clearances And comply with the conditions laid down by the law of 6 January 1978.
The law also determines the period of storage of the data collected, limiting it to eight days, the duration beyond which the data will be deleted. During this period, the law prohibits the consultation of data which has not been positively reconciled with the stolen vehicles file and the Schengen Information System, except for the need for criminal proceedings. It is only in the case where the data would have been positively reconciled that they will be kept for a period of one month, at the end of which they will be erased, except for the need for their preservation for the purposes of a Criminal procedure.
Finally, it should be noted that the processing of these data will be carried out exclusively from the identifying data of the vehicle registration plate. The photographs taken on this occasion may only be used if the processing of the registration number shows a positive approximation, in which case the photograph may be used in order to facilitate the identification of The author of the offence in question or, on the contrary, in order to disculate the driver of the vehicle.
In those circumstances, the Government considers that the device instituted by the legislator, taking into account the purposes to which it obeys and Article 2 of the Declaration on Human and Citizens' Rights
not constitute an excessive infringement of the right to privacy protected by Article 2 of the Declaration of Human and Citizen Rights. The provisions adopted by the legislator are, at last, not vitiated by negative incompetence. They are not imprecise and are not lacking in the principle of clarity of the law resulting from Article 34 of the Constitution.
The purposes in which these controls may be implemented, in accordance with the first paragraph of Article 26, as amended By the law referred to, are precisely enumerated; they cover offences of a particular gravity and precisely correspond to situations in which the planned automated control is appropriate and relevant.
The purposes in which these May be put in place for administrative purposes under the second paragraph of Article 26 shall also be provided for in a limited manner, on the one hand, in time " On a temporary basis ", on the other hand, in special circumstances, Where the preservation of public order is at issue on the occasion of " Special events or large gatherings of people ". These concepts, which refer to concepts commonly used by the administrative authority in the exercise of its administrative police missions, have been illustrated during the parliamentary proceedings. These may include high-level sports events or competitions, travel by international personalities or summits, or events at risk of their size or nature. These notions are not imprecise; they can, moreover, find their origin in ancient texts still in force: for example, the notion of " Large gatherings of men " Appearing today in Article L. 2212-2 of the Code General of the local authorities relating to the municipal police.
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For these reasons, the Government considers that the criticism directed by the authors is not Nature to justify the censorship of the law. It therefore considers that the Constitutional Council should reject the action before it.
