Decision n 2010-14/22 QPC of July 30 th 2010 (Mr Daniel W et al.) On June 1st 2010 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality transmitted by the Cour de cassation (decision n 12030 of May 31 st 2010), application made respectively by Messsrs Daniel W, Laurent D, Eddy and Driss G, Hamza F, Antonio M and Ferat A, Mrs Elenea L, Messrs Alexander Z, Ahmed B, Samih Z, Rachid M, Mike S, Claudy I, Grégory B, Ahmed K, Kossi H, Willy P and John C, Mrs Virginie P, Messrs Mehdi T, Abibou S, Mouhssine M, Nouri G, Mohamed E, Amare K, Ulrich K, Masire N, Abelouahab S, Rami Z, Edgar A, Valentin F and Nabil and Sophiane S pertaining to the conformity with the rights and freedoms guaranteed by the Constitution of Articles 62, 63, 63-1, 63-4, 77 and 706-73 of the Code of Criminal Procedure pertaining to the remanding of persons in police custody for questioning. On June 11 th 2010 the Constitutional Council received, in the same conditions, an application for a priority preliminary ruling on the issue of constitutionality transmitted by the same Court (decisions n s 12041-12042-12043-12044-12046-12047-12050-12051-12052-12054 of June 4 th 2010), application made respectively by Messrs Jacques M, Jean C, Didier B, Bruno R, Mohammed A, François W, Jair Alonso R, Bilel G, Mohamed H and David L, pertaining to the conformity with the rights and freedoms guaranteed by the Constitution of the aforesaid provisions of the Code of Criminal Procedure. THE CONSTITUTIONAL COUNCIL Having regard to the Constitution; Having regard to Ordinance n 58-1067 of November 7 th 1958 as amended (Institutional Act on the Constitutional Council); Having regard to the Code of Criminal Procedure; Having regard to Act n 78-788 of July 28 th 1978 reforming criminal procedure with respect to Criminal Investigation Department Police officers and juries in the Cours d'assises, in particular section 2 thereof; Having regard to Act n 85-1196 of November 18th 1985 amending various provisions of the Code of Criminal Procedure and the Highway Code with respect to Criminal Investigation Department Police officers, in particular section 1 thereof; Having regard to Act n 93-1013 of August 24 th 1993 amending Act n 93-2 of January 4 th 1993 reforming the Code of Criminal Procedure and to decision n 93-326 DC of the Constitutional Council dated August 11 th 1993; Having regard to Act n 94-89 of February 1 st 1994 introducing an incompressible sentence and pertaining to the New Criminal Code and certain provisions of criminal procedure, in particular section 2 thereof; Having regard to Act n 95-125 of February 8 th 1995 pertaining to the organisation of courts and civil, criminal and administrative procedure, in particular section 53 thereof; Having regard to Act n 96-647 of July 22 nd 1996 designed to reinforce the fight against terrorism and attacks on persons vested with public authority or carrying out a mission of public service and containing provisions pertaining to Criminal Investigation Department Police officers; 1
Having regard to Act n 98-1035 of November 18 th 1998 extending the status of Criminal Investigation Department Police officer to uniformed lower ranks of the Police force; Having regard to Act n 2003-239 of Match 18 th 2003 pertaining to internal national security, in particular section 8 thereof; Having regard to Act n 2004-204 of March 9 th 2004 adapting the Administration of Justice to the changing face of crime and decision n 2004-492 DC of the Constitutional Council dated March 2 nd 2004; Having regard to Act n 2006-64 of January 23 rd 2006 pertaining to the fight against terrorism and containing various provisions pertaining to security and border controls, in particular section 16 thereof; Having regard to the Regulation of February 4th 2010 as to the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality; Having regard to the observations on behalf of Messrs D and W, made by the SCP Piwnica and Molinié, Attorneys at the Conseil d'etat and the Cour de cassation, registered on June 17 th 2010; Having regard to the observations on behalf of Mrs L and P, Messrs Z,B,Z, M,S,I,B,K,H,P,C,T,S,M,G,E,K,K,N,S and Z made by the SCP Nicolay, de Lanouvelle, Hannotin, Attorneys at the Conseil d'etat and the Cour de cassation, registered on June 17 th 2010; Having regard to the observations on behalf of Messrs M,A,S,G,S and F made by Me Molin, Attorney at the Lyon Bar, registered on June 18 th 2010; Having regard to the observations of the Prime Minister, registered on June 18 th and 24 th 2010; Having regard to the observations on behalf of Mr R, made by Me Barrere, Attorney at the Perpignan Bar, registered on June 20 th 2010; Having regard to the observations on behalf of Mr M, made by the SCP Piwnica and Molinié, Attorneys at the Conseil d'etat and the Cour de cassation, registered on June 23 rd 2010; Having regard to the observations on behalf of Mr C, made by the SCP Waquet, Farge, Hazan, Attorneys at the Conseil d'etat and the Cour de cassation, registered on June 24 th 2010; Having regard to the further observations of Mr Barrere, registered on June 28 th 2010; Having regard to the further observations of the SCP Piwnica and Molinié, registered on June 30 th 2010; Having regard to the further observations of the SCP Nicolay, de Lanouvelle, Hannotin, registered on June 30 th 2010 Having regard to the observations on behalf of Mr G by the SCP Bernard Peignot and Denis Garreau, Attorneys at the Conseil d'etat and the Cour de cassation, registered on July 2 nd 2010; Having regard to the observations on behalf of Mr A made by Me Gavignet, Attorney at the Bar of Dijon, registered on July 2 nd 2010; Having regard to the further observations made by the Prime Minister at the request of the Constitutional Council for the needs of the examination of the case in hand, Having regard to the documents produced and appended to the case file;: 2
Attorneys Emmanuel Piwnica, René Despieghelaere, Gael Candella, Eymeric Molin, Jean- Baptiste Gavignet, Marie-Aude Labbe, Emmanuel Ravanas, Hélène Farge, David Rajjou and Dennis Garreau, on behalf of the Applicants, and Mr François Seners, representing the Prime Minister, were heard by the Council sitting in open court on July 20 th 2010; Having heard the Rapporteur; ON THE FOLLOWING GROUNDS 1. The various applications for a priority preliminary ruling on the issue of constitutionality all concern the same statutory provisions and as such they will be joined together and will be the object of one single decision 2. Article 62 of the Code of Criminal Procedure provides : "A Criminal Investigation Department (CID) Police officer may summon and question all and any persons likely to supply information as to a suspected offence or items and documents seized. Persons summoned to appear before said Police officer are required to comply with said summons. The CID Police officer may call upon the law enforcement agencies to secure the presence before him of the persons referred to in Article 61 hereof. He may also, subject to prior authorisation by the Public Prosecutor, call upon said law enforcement agencies to forcibly compel to appear before him persons who have not complied with the summons to appear or who it is feared are likely to refuse to comply with the same. Said CID Police officer shall draw up an official record of the statements made by such persons. The persons under questioning shall read said record, may request that their observations be included therein and duly sign the same. In the event of said persons stating that they cannot read, said record shall be read out to them by said CIDPolice officer prior to their signing the statement. Refusal to sign said statement shall be noted in the record of questioning. CID men below the rank of officer referred to in Article 20 hereof may also, under the supervision of a CID Police officer, hear all and any persons likely to supply information as to the incriminated acts. They shall draw up an official record, in the manner specified by the present Code, and shall transmit the same to the CID Police officer whom they are assisting. Persons in respect of whom there exists no plausible reason for suspecting that they have committed or attempted to commit an offence shall be detained only for as long as is strictly necessary for the questioning thereof". 3. Article 63 of the same Code provides : "A CID Police officer may, for the purposes of the investigation, remand in police custody any person in respect of whom there exist one or more plausible reasons for suspecting that they have committed or attempted to commit an offence. Said officer shall inform the Public Prosecutor of said remand as from the commencement thereof. The person remanded in police custody for questioning shall not be remanded for a period of more than twenty four hours. Such period of remand may however be extended for a further maximum period of twenty four hours with the written authorization of the Public Prosecutor. The latter may make said authorization dependent upon the bringing before him of the person thus remanded for police questioning. 3
On the instructions of the Public Prosecutor, persons in respect of whom evidence obtained is such as to warrant prosecution shall on the expiry of the period of remand, either be released or brought before said Prosecutor. For the application hereof, the areas under the jurisdiction of the Tribunaux de Grande Instance of Paris, Nanterre, Bobigny and Cretil shall be deemed to constitute one single jurisdiction". 4. Article 63-1 provides : "Any person remanded in police custody for questioning shall be immediately informed by a CID Police officer or, under the supervision of the latter, by a policeman from said Department, of the nature of the offence under investigation, of the rights specified in Articles 63-2, 63-3 and 63-4, together with the provisions pertaining to the length of time of said remand set out in Article 63. The giving of such information shall be entered on the record of questioning and signed by the person remanded in police custody. Any refusal to sign the same shall also be entered on said record. The information referred to in paragraph one hereof shall be communicated to the person remanded in police custody for questioning in a language which said person understands, if need be by the use of written forms. Should said person be deaf and unable to read or write, said person shall be assisted by a sign language interpreter or by any person qualified in a language or means of communication making it possible to communicate with the deaf. If the person remanded in police custody is released at the end of the period of said remand without any decision as to the bringing of a prosecution having been taken by the Public Prosecutor, the provisions of Article 77-2 hereof shall be made known to said person. Except in the event of exceptional and unavoidable circumstances, investigators shall be required to inform persons remanded in custody of the rights set forth in Articles 63-2 and 63-3 hereof no later than three hours from the time of the commencement of said remand. " 5. Article 63-4 provides : " Any person remanded in police custody for questioning may request to speak with a lawyer. Should said person be unable to designate a specific lawyer, or if it proves impossible to contact the lawyer of his choosing, said person may request that the Chairman of the Bar appoint a lawyer for said purpose. The Chairman of the Bar shall be informed of said request without delay and by all available means. The lawyer appointed to assist the person remanded in custody shall speak with the latter in conditions ensuring the confidentiality of said conversation. He shall be informed by the CID Police officer or, under the supervision of the latter, by a policeman from said Department of the nature and presumed date of the commission of the offence under investigation. At the end of this conversation, which shall not exceed thirty minutes, the lawyer shall, if need be, make written observations which shall be appended to the case file. Said lawyer shall not inform any third party of said conversation during the period of the remand in police custody. 4
When the period of said remand is extended the person remanded may also request to speak with a lawyer as from the beginning of said extension, in the conditions and manner provided for in the foregoing paragraphs. If the person has been remanded in police custody for questioning in connection with an offence listed in 4,6,7,8 and 15 of Article 706-73, the consultation of a lawyer shall not take place until 48 hours have elapsed. In the event of the remand in police custody having been decided for an offence listed in 3 and 11 of the same Article, said consultation with a lawyer shall not take place until 72 hours have elapsed. The Public Prosecutor shall be informed of the nature of the offences determined by the investigators when being informed by the latter of their decision to remand the suspected offender in police custody for questioning." 6. Article 77 provides : "The CID Police officer may, for the needs of the investigation, maintain at his disposal any person in respect of whom there exist one or more plausible reasons for suspecting that said person has committed or attempted to commit an offence. He shall inform the Public Prosecutor of said remand at the beginning thereof. Said remand shall not exceed 24 hours. The Public Prosecutor may, prior to the expiry of said 24 hour period, extend said period by no more than 24 hours. Said extension shall only be granted after the person on remand has been brought before said Prosecutor. It may however exceptionally be extended by a written and reasoned decision without any prior bringing of the person on remand before the Prosecutor. If the investigation is carried out in another judicial area than that in which the Prosecutor asked to decide on said remand has jurisdiction, said extension may be granted by the Public Prosecutor having jurisdiction over the area in which said remand takes place. On the instructions of the Public Prosecutor handling the case, persons in respect of whom evidence obtained is such as to warrant prosecution shall, on the expiry of the period of remand, either be released or brought before said Prosecutor. For the application hereof, the areas under the jurisdiction of the Tribunaux de Grande Instance of Paris, Nanterre, Bobigny and Cretil shall be deemed to constitute one single jurisdiction. The provisions of Articles 63-1, 63-2, 63-3, 63-4, 64, 64-1 and 65 shall apply to remands in police custody for questioning proceeded with in the framework of the present Chapter". 7. Article 706-73 provides : "Procedure applicable to investigations, prosecution, preliminary judicial inquiry and trial of the following crimes and major offences shall be that provided for by the present Code, subject to the provisions of this Title : 1 The crime of murder committed by an organised criminal gang under 8 of Article 221-4 of the Criminal Code; 2 The crime of torture and barbaric acts committed by an organised criminal gang under Article 222-4 of the Criminal Code 3 Crimes and major offences involving drug trafficking as provided for by Articles 222-34 to 222-40 of the Criminal Code 4 Crimes and major offences of kidnapping and sequestration committed in an organized criminal gang under Article 224-5-2 of the Criminal Code 5 Aggravated crimes and major offences involving trafficking in human beings punishable by Articles 225-4-2 to 225-4-7 of the Criminal Code 5
6 Aggravated crimes and major offences of procuring provided for by Articles 225-7 to 225-12 of the Criminal Code 7 Crime of theft committed by an organised criminal gang under Article 311-9 of the Criminal Code 8 Aggravated crimes and offences of extortion provided for by Articles 312-6 and 312-7 of the Criminal Code 9 The crime of destruction, criminal damage to and deterioration of property committed by a organized criminal gang under Article 322-8 of the Criminal Code Code 10 Crimes of counterfeiting provided for by Articles 422-1 and 422-2 of the Criminal 11 Crimes and offences of terrorism as provided for by Articles 421-1 to 421-6 of the Criminal Code 12 Major offences involving the use of weapons and explosives when committed in organised criminal gangs under Articles L 2339-2, L 2339-8,L 2339-10, L 2341-4, L 2353-4 and L 2353-5 of the Defence Code; 13 Major offences consisting, as part of an organised criminal gang, in assisting persons to unlawfully enter, travel and reside on French territory as provided for by indent 4 of I of Article 21 of the Ordinance of November 2 nd 1945 ; 14 Major offences of money laundering provided for by Articles 324-1 and 324-2 of the Criminal Code, or, as provided for by Articles 321-1 and 321-2 of the Criminal Code, of receiving the proceeds, income or goods from the commission of offences referred to in 1 to 13 hereinabove 15 Major offences of consorting with criminals for the purpose of preparing to commit one of the offences referred to in 1 to 14 hereinabove, punishable under Article 450-1 of the Criminal Code 16 Major offence of failure to prove the origin of financial resources corresponding to one's lifestyle, provided for by Article 321-6-1 of the Criminal Code, when committed in connection with one of the offences referred to in 1 to 15 hereinabove. Unless otherwise provided for, the provisions of this Title shall apply, together with those of Titles XV, XVI and XVII hereof, to the offences referred to in 3,6 and 11 hereinabove". 8. The Applicants argue firstly that the material conditions in which the remand in police custody for questioning takes place fail to comply with the principle of respect for the dignity of the human being 9. They argue secondly that the power vested in a CID Police officer to remand a person in police custody for questioning fails to comply with the principle whereby the Judicial authority is the guardian of the freedom of the individual; that the Public Prosecutor is not an independent judicial authority; that he is only informed of the remanding of a person in police custody once the decision to have recourse to such a measure has been taken; that said Prosecutor has the power to extend said period of remand and that such a decision may be taken without the person remanded being brought before him. 6
10. They contend thirdly that the power vested in the CID Police officer to remand in police custody for questioning any person in respect of whom there exists one or more plausible reasons for suspecting that he has committed or attempted to commit an offence constitutes an arbitrary power which fails to comply with the principle deriving from Article 9 of the Declaration of the Rights of Man and the Citizen of 1789 which prohibits all undue harshness not needed to secure the person of the alleged offender. 11. They contend, fourthly, that a person remanded in police custody is entitled solely to speak with a lawyer for thirty minutes, but not to solicit the assistance of the latter. The lawyer involved has no access to the contents of the case file and is not present during questioning. The person remanded is not informed of his right to remain silent. This being the case, remanding a person in custody for police questioning fails to respect the rights of the defence, does not comply with the requirements of a fair trial, the presumption of innocence and the principle of equality before the law. Furthermore, in investigations into certain offences the fact that the right to speak with a lawyer cannot be exercised until the 48 th or 72 nd hour of such remand fails to comply with the same requirements. WITH RESPECT TO ARTICLES 63-4, PARA 7 AND 706-73 OF THE CODE OF CRIMINAL PROCEDURE 12. The outcome of the combined provisions of paragraph 3 of section 23-2 of the Ordinance of November 7 th 1958 referred to above and the third paragraph of section 23-5 is that no application for a priority preliminary ruling on the issue of constitutionality may be made to the Constitutional Council regarding a provision which has already been held to be constitutional in the grounds and the holding of a decision of the Council, except in the event of a change of circumstances. 13. The Constitutional Council, pursuant to paragraph 2 of Article 61 of the Constitution, received a referral for review of the Act of March 9 th 2004 referred to hereinabove. The parties making that referral contended in particular that the provisions of sections 1 and 14 of said statute were unconstitutional. In paragraphs 2 and following of its decision of March 2 nd 2004 referred to above, the Constitutional Council Section looked closely at section 1 of the statute under review, which "inserts into Book IV of the Code of Criminal Procedure a title XXV " Procedure applicable to organized crime" and included Article 706-73 of the Criminal Code. In particular in paragraphs 21 and following of the same decision it examined the provisions pertaining to remand in police custody for questioning and, among said provisions, paragraph I of Section 14 from which derives paragraph 7 of Article 63-4 of the Code of Criminal Procedure. Article 2 of the holding of the decision of the Council held sections 1 and 14 of said statute to be constitutional. Thus the 7 th paragraph of Article 63-4 and Article 706-73 of the Code of Criminal Procedure have already been held to be constitutional in the grounds and holding of a decision of the Constitutional Council. In the absence of any change in circumstances, since the decision of March 2 nd 2004 referred to above, as regards the fight against organized crime, it is not incumbent upon the Constitutional Council to proceed to a fresh review of said provisions. WITH RESPECT TO ARTICLES 62, 63, 63-1, 63-4, PARAGRAPHS 1 TO 6, AND ARTICLE 77 OF THE CODE OF CRIMINAL PROCEDURE 14. In its decision of August 11 th 1993 referred to hereinabove, the Constitutional Council did not specifically examine Articles 63, 63-1, 63-4 and 77 of the Code of Criminal Procedure. It did however find that the amendments made to said Articles by the provisions referred for review were constitutional. These provisions dealt with the conditions governing remand in police custody for questioning and the extension of the period of said remand, to the monitoring of such measures by the Public Prosecutor and the right of the person remanded to have a thirty minute conversation with a lawyer. These Articles of the Code of Criminal Procedure were subsequently amended on several occasions after the Act of August 24 th 1993 7
referred to above. In comparison with the provisions examined by the Constitutional Council in its decision of August 11 th 1993, the provisions which are currently challenged offer better supervision of recourse to remanding in police custody and enhanced protection of the rights of persons remanded. 15. However, since 1993, certain changes in the rules of criminal procedure and the manner in which the latter has been implemented have led to ever more frequent recourse to the remanding of persons in police custody for questioning and modified the balance of the powers and rights laid down by the Code of Criminal Procedure 16. The proportion of cases undergoing a preliminary judicial investigation has constantly decreased and now accounts for less than 3% of decisions and court orders handed down in criminal cases by the Tribunal correctionnel. Subsequent to the Act of August 24 th 1993, the practice of "real time" handling of criminal matters has been generalized. This practice has led to the decision of the Prosecuting authorities being taken on the basis of the report of the CID Police officer before the end of the period of remand. Although these new methods of deciding whether to bring prosecutions have made it possible to ensure a swifter and more varied response to issues raised, in accordance with the objective of a good administration of justice, the fact nevertheless remains that, even in proceedings involving complex or particularly serious occurrences, a person is henceforth often tried on the sole basis of evidence obtained before the expiry of the period of remand in police custody, in particular on the basis of confessions made during this period of time. Remanding suspected offenders in police custody for questioning has thus often become the main phase of the putting together of the case for the prosecution on the basis of which the person remanded will be tried in court. 17. In addition, Article 16 of the Code of Criminal Procedure, as worded pursuant to the statutes of July 28 th 1978 and November 18 th 1985 referred to hereinabove, fixed a restricted list of persons having the status of CID Police officer, who alone were empowered to decide whether a person should be remanded in police custody for questioning. This Article was amended by section 2 of the Act of February 1 st 1994, section 53 of the Act of February 8 th 1995, section 20 of the Act of July 22 nd 1996, the Act of November 18 th 1998, section 8 of the Act of March 18 th 2003 and section 16 of the Act of January 23 rd 2006 referred to hereinabove. These amendments have led to a reduction in the requirements governing the attribution of the status of CID Police officer to other members of the National Police Force and the military Gendarmerie Nationale. Between 1993 and 2009 the number of these civil and military personnel having the status of a CID Police officer rose from 25 000 to 53 000. 18. These changes have contributed to making remand in police custody for questioning something of a commonplace, including for minor offences. They have given greater importance to the outcome of police investigations in putting together the case for the prosecution on the basis of which a person will be tried in court. More than 790 000 decisions to remand persons in police custody for questioning were taken in 2009. These changes in circumstances of both fact and law warrant a review of the constitutionality of the challenged provisions. As regards the argument based on the infringement of the dignity of the human being: 19. The Preamble to the Constitution of 1946 has reaffirmed that all human beings, irrespective of race, religion or creed, possess certain sacred and inalienable rights. The protection of the dignity of the human being from all types of enslavement and debasement is to be counted among these rights and is a principle of constitutional status. 20. It is incumbent upon the Judicial Authorities and those of the Police Criminal Investigation Department to ensure that in all circumstances the remanding of persons in police custody for questioning is carried out with due respect for the dignity of the human being. It is moreover incumbent upon the competent Judicial Authorities, in the framework of the powers 8
vested in them by the Code of Criminal Procedure, and if need be, on the basis of the criminal offences provided for to this end, to prevent and punish behaviour which adversely affects the dignity of the person remanded in police custody and order compensation for injury sustained by reason of such behaviour. Any possible failure to fully comprehend this requirement when applying the statutory provisions referred to hereinabove does not per se render said provisions unconstitutional. Although Parliament is at liberty to amend the same, the provisions submitted for review by the Constitutional council do not adversely affect the dignity of the human being. - As to the other arguments raised : 21. Article 7 of the Declaration of 1789 proclaims :" No man shall be accused, arrested or detained except in the cases and the manner prescribed by law. Whosoever shall solicit, expedite, execute or cause to be executed any arbitrary order shall be punished; but any citizen summoned or apprehended pursuant to the law shall obey forthwith: resistance shall render him guilty". Article 9 proclaims : Insofar as every man is presumed innocent until found guilty, if it is deemed indispensable to arrest him, any undue harshness not needed to secure his person shall be severely curbed by the law". Article 16 proclaims "Any society is which no provision is made for guaranteeing rights, or for defining the separation of powers, has no Constitution". 22. Under Article 34 of the Constitution, statute law determines the rules governing criminal procedure. Article 66 of the Constitution provides : "No-one shall be arbitrarily detained The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle in the conditions laid down by statute". 23. Article 34 of the Constitution makes it incumbent upon Parliament to determine the scope of the application of criminal law. Where criminal procedure is concerned, this requirement is binding in particular to avoid undue harshness when seeking to apprehend offenders. 24. It is furthermore the task of Parliament to reconcile on the one hand the need to prevent breaches of the peace and to seek out offenders, both of which are essential for the safeguard of rights and principles of constitutional value, with on the other hand the need to ensure the exercising of constitutionally guaranteed freedoms. Such freedoms include respect for the rights of the defence, which derives from Article 16 of the Declaration of 1789, together with the freedom of the individual, which Article 66 of the Constitution places under the protection of the Judicial Authority. 25. The changes outlined hereinabove do not per se fail to comply with any constitutional requirement. Remanding persons in police custody for questioning is a measure of constraint necessary for certain operations of the Police Criminal Investigation Department. These changes must however be accompanied by suitable guarantees as regards recourse to such remands and the manner in which they are proceeded with and such as to ensure the protection of the rights of the defence. 26. The Judicial Authority is composed of trial judges and prosecutors. The intervention of a trial judge is required for any extension of the period of remand beyond 48 hours. Before the end of this period the manner in which the remand is proceeded with is placed under the supervision of the Public Prosecutor who may decide, if need be, to extend the same by a further 24 hours. Under Articles 63 and 77 of the Code of Criminal Procedure, the Public Prosecutor is informed of the remand as from the commencement thereof. He may at any time order that the person remanded be released or brought before him. It is incumbent upon him to decide whether continuing to remand a person in police custody and, if need be, the extension of the period of such remand, are necessary for the purposes of the investigation and proportionate to the seriousness of the acts which the person on remand is suspected of having committed. The 9
argument based on failure to comply with the terms of Article 66 of the Constitution must thus be dismissed. 27. However, firstly under Articles 63 and 77 of the Code of Criminal Procedure any person suspected of committing an offence may be remanded in police custody for questioning by a CID Police officer for a period of 24 hours irregardless of the seriousness of the acts warranting recourse to this measure. Any remand in police custody may be extended for a further 24 hours without this measure being restricted to offences of a more serious nature. 28. Secondly, the combined provisions of Articles 62 and 63 of the same Code authorize the questioning of a person remanded in police custody. Article 63-4 does not allow the person undergoing questioning, and held against his will, to have the benefit of effective assistance from a lawyer. Such a restriction on the rights of the defence is imposed in a general matter without any consideration of particular circumstances likely to justify the same, in order to collect or conserve evidence or ensure the protection of persons. The person remanded in police custody is moreover not informed of his right to remain silent. 29. In such conditions, Articles 62,63, 63-1, 63-4 paragraphs 1 to 6 and Article 77 of the Code of Criminal Procedure do not offer suitable guarantees as to the use made of remands in police custody, taking into account the changes recalled hereinabove. The reconciling on the one hand of the need to prevent breaches of the peace and to seek out offenders with, on the other hand, the need to ensure the exercising of constitutionally guaranteed freedoms cannot be considered to be balanced. Hence these provisions fail to comply with Articles 9 and 16 of the Declaration of 1789 and must therefore be held to be unconstitutional. WITH RESPECT TO THE EFFECTS OF THE FINDING OF UNCONSTITUTIONALITY: 30. Firstly, the Conseil Constitutional does not have any power of appraisal similar to that vested in Parliament. It is therefore not incumbent upon it to indicate the amendments to the rules of criminal procedure required to remedy the unconstitutional nature of the impugned provisions. Secondly, if in principle a finding of unconstitutionality must inure to the benefit of the party making the application for a priority preliminary ruling on the issue of constitutionality, the immediate repeal of the challenged provisions would fail to comply with the objective of preventing breaches of the peace and seeking out offenders and entail patently disproportionate consequences. The repeal of said provisions must therefore be postponed until July 1 st 2011 in order to allow Parliament to remedy the unconstitutional nature thereof. Measures taken prior to this date under provisions found to be unconstitutional shall not be challenged on the grounds of said unconstitutionality. HELD Article 1 : Articles 62,63, 63-1 and 77 of the Code of Criminal Procedure, together with paragraphs 1 to 6 of Article 63-4 thereof are unconstitutional. Article 2 : The finding of unconstitutionality set out in Article 1 above shall take effect on July 1 st 2011 in the conditions specified in paragraph 30 hereinabove. Article 3 : It is not incumbent on the Constitutional Council to rule on Article 706-73 of the Code of Criminal Procedure and paragraph 7 of Article 63-4 thereof. Article 4 : This decision shall be published in the Journal officiel of the French Republic and notified in the conditions provided for in Section 23-11 of the Ordinance of November 7 th 1958 referred to hereinabove. 10
Deliberated by the Constitutional Council sitting on July 29 th 2010 and composed of Messrs Jean-Louis DEBRE, President, Messrs Jacques BARROT, Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Messrs Hubert HAENEL and Mr Pierre STEINMETZ. Announced on July 30 th 2010. 11