Decision no. 2010-25 QPC of 16 September 2010

On June 17th 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° 12071 of June 11th 2010), application made by Mr Jean-Victor C pertaining to the conformity with the rights and freedoms guaranteed by the Constitution of Article 706-54 paras 2 and 3 of the Code of Criminal Procedure, Article 706-55 and indent 1 of paragraph II of Article 706-56 of the same Code together with section 29 of Act n° 2003-239 of March 18th 2003.

THE CONSTITUTIONAL COUNCIL

Having regard to the Constitution;

Having regard to Ordinance n° 58-1067 of November 7th 1958 as amended (Institutional Act on the Constitutional Council);

Having regard to the Code of Criminal Procedure;

Having regard to Act n° 78-17 of January 6th 1978 as amended pertaining to Data processing, Data files and Individual Liberties;

Having regard to Act n° 2003-239 of March 18th 2003 on Internal Security and decision n° 2003-467 of the Constitutional Council dated March 13th 2003;

Having regard to Act n° 2007-297 of March 5th 2007 pertaining to the prevention of crime;

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 Mr .C, made by the SCP Waquet-Farge-Hazan Attorneys at the Conseil d'Etat and the Cour de cassation, registered on July 12th 2010;

Having regard to the observations of the Prime Minister, registered on July 12th 2010

Having regard to the documents produced and appended to the case file;:

Me Hélène Farge on behalf of Mr C, and Mr Thierry-Xavier Girardot, representing the Prime Minister, were heard by the Council sitting in open court on September 9th 2010;

Having heard the Rapporteur;

ON THE FOLLOWING GROUNDS

1. The application for a priority preliminary ruling on the issue of constitutionality made by the Applicant concerns "Article 706-54, paras 2 and 3, 706-55 and 706-56, II para.1 of the Code of Criminal Procedure together with section 29 of Act n° 2003-239 of March 18th 2003". The latter provision is solely designed to reword Articles 706-54 to 706-56 of the Code of Criminal Procedure. An application for a priority preliminary ruling on the issue of constitutionality must be considered as referring to provisions applicable to the litigation during the course which such an application was made. The Constitutional Council is thus asked to review Article 706-55 as currently worded and Articles 706-54 and 706-55 as worded prior to Act n° 2010-242 of March 10th 2010.

2. As worded prior to the Act of March 10th 2010 referred to above, Article 706-54 of the Code of Criminal Procedure provides : "The National DNA Database, placed under the supervision of a Judge, is designed to centralise DNA markers from biological traces and DNA markers of persons convicted of one of the offences referred to in Article 706-55 for the purpose of facilitating the search for and the identification of persons committing said offences.
   DNA markers of persons concerning whom there exists serious and concurring evidence that they have committed one of the offences referred to in Article 706-55 shall also be entered on this database on the decision of a CID Police officer acting either on his own initiative or at the request of the Public Prosecutor or an Investigating Magistrate. This decision shall be recorded in the case file. Such DNA markers shall be removed from said database on the instructions of the Public Prosecutor acting on his own initiative or at the request of the person involved when their retention no longer appears necessary in view of the purposes which said database seeks to achieve. When petitioned for such removal by the person whose DNA markers have been entered on the database the Public Prosecutor shall inform said person of the outcome of said request. In the event of such markers not being removed from said database, said person may apply to the Freedom and Detention Judge, whose decision may be appealed against before the President of the Chambre de l'Instruction (Court called upon to rule on decisions taken and measures ordered during preliminary criminal inquiries into offences).
   CID Police officers may also, either on their own initiative or at the request of the Public Prosecutor or the Investigating Magistrate, when there are one or more plausible reasons for suspecting that a person has committed a crime or major offence, compare DNA markers kept on the database with those of the suspect, without however the latter's DNA markers being conserved.
   The DNA database provided for herein shall also contain DNA markers coming from biological traces collected during proceedings to discover the cause of death or a disappearance as provided for in Article 74, 74-1 and 80-4, together with DNA markers corresponding or likely to correspond to those of deceased persons or wanted persons.
   DNA markers kept on the database may only be taken from segments of non coding deoxyribonucleic acid, except for the segment corresponding to the sex marker.
   A Decree issued after consultation with the Conseil d'Etat after consultation with the National Commission on Data Processing and Individual Liberties shall determine the manner of application hereof. This Decree shall in particular specify the length of time such data may be retained."

3. Article 706-55 of the same Code provides : "The National DNA Database shall centralise DNA markers and traces concerning the following offences :

1° Offences of a sexual nature referred to in Article 706-47 hereof together with the offence provided for in Article 222-32 of the Criminal Code;
2° Crimes against humanity and intentional crimes and major offences against the person, torture and barbaric acts, intentional violence, threats of offences against the person, drug trafficking, infringement of the freedom of the individual, trafficking in human beings, procuring, exploitation of begging by and endangering minors as provided for by Articles 221-1 to 221-5, 222-1 to 222-18, 222-34 to 222-40, 224-1 to 224-8, 225-4-1 to 225-4-4, 225-5 to 225-10, 225-12-1 to 225-12-3, 225-12-5 to 225-12-7 and 227-18 to 227-21 of the Criminal Code;
3° Crimes and major offences of theft, extortion, obtaining property by deception, destruction, damage and deterioration of property and threats of damage to property provided for by Articles 311-1 to 311-13, 312-1 to 312-9, 313-2 and 322-1 to 322-14 of the Criminal Code;
4° Offences against the fundamental interests of the Nation, acts of terrorism, counterfeiting and criminal conspiracies provided for by Articles 410-1 to 413-12, 421-1 to 421-4, 442-1 to 442-5, and 450-1 of the Criminal Code;
5° The offences provided for by Article L 2353-4 and L 2339-1 to L 2339-11 of the Defence Code;
6° The offences of handling and laundering the proceeds of one of the offences referred to in 1° to 5° hereinabove, provided for by Articles 321-1 to 321-7 and 324-1 to 324-6 of the Criminal Code".

4. Article 706-56 of the same Code, as worded prior to the Act of March 10th 2010 referred to above, provides :
   "I. The CID Police officer may proceed or cause to be proceeded to carry out under his supervision, the taking of a biological sample from those persons referred to in paras 1, 2 and 3 of Article 706-54 for the purpose of identifying their DNA markers. Prior to this operation, he may verify or cause to be verified by a CID policeman acting under his supervision whether or not the DNA marker of the person concerned has already been entered on the National DNA database, by checking the civil status of said person.
   The CID Police officer may require any person duly authorised in the manner determined by Article 16-12 of the Civil Code to carry out this analysis, without said person needing to have the status of court-appointed expert witness. In such cases, the person shall take the oath provided for in para 2 of Article 60 of this Code. The Requisitions may also be carried out by the Public Prosecutor or the Investigating Magistrate.
   Persons requisitioned in accordance with the foregoing paragraph may proceed, by all means, including telematic, at the request of the Public Prosecutor or the Investigating Magistrate to carry out the operations making it possible to enter the DNA markers on the National DNA Database.
   When it is not possible to take a biological reference sample from the person referred to in para 1 hereof, the identification of his/her DNA marker may be carried out in a non intrusive manner by using biological material which has naturally been shed by the person involved.
   When the person from whom such samples are to be taken has been convicted of a crime or major offence carrying a sentence of 10 years' imprisonment, a sample may be taken without the agreement of the person involved upon a written order to said effect from the Public Prosecutor.
   II. Refusal to submit to the taking of a reference sample as provided for in para.1 of I shall be punishable by a term of one year's imprisonment and a fine of 15 000 euros.
   When such a refusal is made by a person convicted of a crime, said person shall be liable to a sentence of two years' imprisonment and a fine of 30 000 euros.
   Notwithstanding the provisions of Article 132-2 to 132-5 of the Criminal Code, penalties handed down for the offences provided for herein shall be cumulative and not concurrent with those imposed upon conviction of the offender for the offence leading to the criminal proceedings during which reference samples had to be taken.
   Any person subjected to the taking of a reference sample who substitutes or attempts to substitute the biological material of a third party for his own, with or without the agreement of the latter, shall be liable to a sentence of three years' imprisonment and a fine of 45 000 euros.
   III - When the offences provided for herein have been committed by the convicted person, they shall automatically entail the suppression of all remissions of sentence which may have inured to the benefit of the offender and preclude any further granting of remissions of sentence.

WITH RESPECT TO ARTICLE 706-54 OF THE CODE OF CRIMINAL PROCEDURE

5. The Applicant contends that paras 2 and 3 of Article 706-54, which authorise the CID Police officer to decide on his own initiative to take a biological reference sample for the purposes of comparing the same with or entering the same on the National DNA Database infringes Article 66 of the Constitution. He also claims that the para 3 of Article 706-54 which authorises the taking of a biological reference sample for any crime or major offence without taking into account the strict necessities of the investigation underway fails to comply with Articles 2 and 9 of the Declaration of the Rights of Man and the Citizen of 1789, with Article 66 of the Constitution and with the constitutional principle of the safeguarding of the dignity of the human being and the inviolability of the human body.

6. Article 2 of the Declaration of 1789 proclaims : "The aim of every political association is the preservation of the natural and imprescriptible rights of Man. These rights are liberty, property, safety and resistance to oppression. The liberty proclaimed by this Article implies respect for privacy.

7. The Preamble to the Constitution of 1946 has reaffirmed that all human beings, without distinction as to race, religion or creed, possess sacred and inalienable rights. The safeguarding of the human being against all forms of enslavement and degradation is one of these rights and constitutes a principle of constitutional status. It is therefore incumbent upon Parliament, competent under Article 34 of the Constitution to determine the rules governing criminal law and procedure, to lay down the conditions and manner of investigations and preliminary judicial inquiries with due respect for the dignity of the human being.

8. Article 9 of the Declaration of 1789 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".

9. Under Article 34 of the Constitution, statutes shall determine 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".

10. Firstly, under Article 34 of the Constitution, it is incumbent upon Parliament to determine the scope of criminal law. Where criminal procedure is concerned, this requirement is of particular importance to avoid undue harshness when seeking to apprehend offenders.

11. Secondly, it is 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, which include the right to privacy, protected by Article 2 of the Declaration of 1789, respect for the presumption of innocence, the principle of the dignity of the human being, together with the freedom of the individual, which Article 66 of the Constitution places under the protection of the Judicial Authority. Thus although Parliament may provide for special measures of investigation for the purpose of ascertaining the commission of crimes and major offences of a particularly serious nature, collecting evidence and seeking to apprehend persons committing such offences, such measures must be carried out in compliance with the prerogatives of the Judicial Authority, guardian under Article 66 of the Constitution of the freedom of the individual. This means that any restrictions which may be placed on constitutionally guaranteed rights and freedoms must be necessary to determine the truth, proportionate to the seriousness and complexity of the offences committed and must not introduce any unjustified discriminations.

As regards the taking and recording of DNA markers

12. Firstly, although in the cases provided for in paras 2 and 3 of Article 706-54, a CID Police officer may on his own initiative decide to take a biological sample for comparison with the database or for entry on said database, such an act, which is necessarily carried out in the framework of an investigation or a preliminary judicial inquiry, is placed under the supervision of the Public Prosecutor or the Investigating Magistrate who oversee this sample-taking in accordance with the provisions of the Code of Criminal Procedure. The DNA markers may be removed from the database on the instructions of the Public Prosecutor. Lastly, the database is placed under the supervision of a judge. Hence the argument based on failure to comply with Article 66 of the Constitution must be dismissed.

13. Secondly, the biological sample referred to in paras 2 and 3 of Article 706-54 cannot be taken without the agreement of the person concerned. Under indent 4 of paragraph I of Article 706-56, when it is not possible to take a biological sample from a person the identification of his/her DNA marker may be made from biological material which has naturally become separated from his/her body. In all events, taking a biological sample does not entail any internal bodily intrusion, neither does it involve any painful, intrusive process which constitutes a violation of the dignity of the human being..

14. Under para 1 of Article 706-54 the database has been set up to facilitate the identification and the search for persons who have committed certain offences. To this end, para 5 of this Article provides : "DNA markers kept on the database may only be taken from segments of non coding deoxyribonucleic acid, except for the segment corresponding to the sex marker". The challenged provision thus does not authorise the examination of the genetic features of persons who have been subjected to the taking of such samples but merely makes it possible to identify them by genetic markers.

15. The arguments based on the infringement of the inviolability of the human body, the principle of respect for the dignity of the human being and freedom of the individual is thus not supported by the facts.

16. Thirdly, the database is placed under the supervision of the National Commission on Data Processing and Individual Liberties under the provisions and in the manner set out in the Act of January 6th 1978 referred to above. Under the provisions of Article 706-54 it is also placed under the supervision of a judge. It has been set up for the purpose of facilitating the search for and the identification of persons committing certain offences and centralises solely traces and markers concerning these offences. Entries on the database concern, in addition to persons convicted of committing said offences, persons concerning whom there exists serious and concurring evidence that they have committed one of such offences. Where the latter are concerned, DNA markers obtained in the framework of an investigation or preliminary judicial inquiry are entered on this database on the decision of a CID Police officer acting either on his own initiative or at the request of the Public Prosecutor or an Investigating Magistrate. Provision has also been made by Parliament for the removal of such DNA markers when their retaining no longer appears necessary in view of the purposes which said database seeks to achieve. In the event of refusal by the Public Prosecutor to remove such markers from said database, the person concerned may apply to the Freedom and Detention Judge, whose decision may be appealed against before the President of the Chambre de l'Instruction. Lastly, under section 39 of the Act of January 6th 1978 referred to above, all persons have a right of direct access to data concerning them. In view of the foregoing, these provisions are such as to ensure a conciliation which is not patently disproportionate between the right to privacy and the safeguarding of law and order. The argument based on the lack of guarantees concerning the operation of the database must thus be dismissed.

17. Fourthly, the taking of a biological sample for entry on the database, as provided for by para 2 of Article 706-54, of DNA markers of persons concerning whom there exists serious and concurring evidence that they are likely to have committed certain offences and the taking of a biological sample for comparison purposes, provided for by para 3 of Article 706-54, which may be carried out on any person concerning whom there exist plausible reasons for suspecting that said person has committed on of these same crimes or major offences, do not per se constitute any finding or presumption of guilt. They may on the contrary prove the innocence of persons from whom such samples are taken. The duty to submit to the taking of such a sample, accompanied by criminal penalties for refusal, does not per se imply any finding of guilt and does not run counter to the rule whereby no person can be required to incriminate himself. Hence these provisions do not infringe the presumption of innocence.

18. Fifthly, entry on the database of DNA markers of persons convicted of
    committing certain particular offences and those of persons concerning whom there exists serious or concurring evidence that they are likely to have committed one of such offences is necessary for identifying and searching for persons who have committed such crimes or major offences. The final paragraph of Article 706-54 leaves it to a Decree to determine in particular the length of time such markers may be retained. It is therefore incumbent upon those vested with the power to make regulations to make this period of retention of such personal data proportionate to the nature and seriousness of said offences and the purpose which the database seeks to achieve, while adapting these provisions to the specificities of offences committed by minors. With this qualification leaving such measures to be determined by a Decree does not run counter to Article 9 of the Declaration of 1789.

As regards the taking of samples for the purpose of comparison with data already entered on the database.

19. Under para 3 of Article 706-54, CID Police officers may also, either on their own initiative or at the request of the Public Prosecutor or an Investigating Magistrate, compare DNA markers of any person concerning whom there exist plausible reasons to suspect that said person has committed a crime or major offence with existing entries on the database, without however entering said DNA marker on the database. The expression "crime or major offence" employed by Parliament is to be understood as referring to the offences listed by Article 706-55. With this qualification para 3 of Article 706-54 of the Code of Criminal Procedure does not run counter to Article 9 of the Declaration of 1789.

20. Thus, with the qualifications set forth in paragraphs 18 and 19 hereof, the conditions in which DNA markers of such persons are collected and retained does not infringe constitutionally guaranteed rights and freedoms.

WITH RESPECT TO ARTICLE 706-55 OF THE CODE OF CRIMINAL PROCEDURE

21. The Applicant contends that para 3 of Article 706-55, which allows for the centralisation of DNA markers for certain offences against property, makes the area covered by the National DNA disproportionately wide in scope and as such runs counter to Articles 2,8,9 and 16 of the Declaration of 1789, Article 66 of the Constitution, the principle of the safeguarding of the dignity of the human being and the inviolability of the human body.

22. Under Article 706-55, the National DNA database centralises DNA traces and markers concerning offences of a sexual nature, crimes against humanity and intentional crimes and major offences against the person, torture and barbaric acts, intentional violence, threats of offences against the person, drug trafficking, infringement of the freedom of the individual, trafficking in human beings, procuring, exploitation of begging by and endangering minors, crimes and major offences of theft, extortion, obtaining property by deception, destruction, damage and deterioration of property and threats of damage to property, offences against the fundamental interests of the Nation, acts of terrorism, counterfeiting and criminal conspiracies, offences against laws on weapons and explosives, offences of handling and laundering the proceeds of the commission of one of said offences. These crimes and major offences are listed in a precise and restrictive manner. In addition to offences against the fundamental interests of the Nation, all these offences are against the safety and security of persons and property, pertain to acts of commission of said offences or of profiting therefrom. Except for the offence provided for in para 2 of Article 322-1 of the Criminal Code, all these offences carry prison sentences. For all these offences, comparisons carried out with DNA traces or markers already entered on the database are likely to assist in identifying and searching for persons committing said offences. The list set out in Article 706-55 is thus commensurate with the purpose which Parliament has sought to achieve and this Article does not submit those involved to any treatment of undue harshness and does not infringe any of the rights and freedoms referred to by the Applicant.

WITH RESPECT TO ARTICLE 706-56 OF THE CODE OF CRIMINAL PROCEDURE

23. The Applicant argues that indent 1 of paragraph II of Article 706-56, which makes it an offence to refuse to submit to the taking of a sample as provided for in para 3 of Article 706-54 infringes Article 2,8,9 and 16 of the Declaration of 1789, Article 66 of the Constitution, the principle of non bis in idem, the constitutional principle of the safeguarding of the dignity of the human being and that of the inviolability of the human body and allows for the repeated conviction of persons who refuse to submit to the taking of biological samples during the criminal proceedings brought for the acts of which they are accused, firstly during investigations into said offences and subsequently after conviction.

24. Article 34 of the Constitution provides : " Statutes shall determine the rules concerning … the determination of serious crimes and major offences and the penalties they carry" Article 61-1 of the Constitution does not vest the Constitutional Council with any general power of appraisal similar to that vested in parliament, but merely vests it with the power to rule as to the conformity with constitutionally guaranteed rights and freedoms of statutory provisions referred for its review.

25. When punishing refusal to submit to the taking of a biological sample by a maximum sentence of one year's imprisonment and a fine of 15000 euros and of two years' imprisonment and a fine of 30 000 euros when said refusal is made by a person convicted of committing a crime, Parliament has not introduced any patently disproportionate penalty. Constant refusal to submit to the taking of biological samples at different times and in different circumstances may entail distinct sets of criminal proceedings and convictions without running counter to the principle non bis in idem. Lastly, the offence provided for in Paragraph II of Article 706-56 does not appear in the list of offences referred to in Article 706-55 authorising the taking of biological samples. The provisions of Paragraph II of Article 706-56 do not therefore infringe the rights and freedoms raised.

26. With the qualification set out in paragraphs 18 and 19 hereinabove, Article 706-54, 706-55 and 706-56 of the Code of Criminal Procedure are not unconstitutional.

HELD

Article 1: With the qualifications set forth in paragraphs 18 and 19 hereinabove, Article 706-54 of the Code of Criminal Procedure as worded prior to the Act of March 10th 2010 is in conformity with the Constitution.

Article 2: Article 706-.55 of the Code of Criminal Procedure and Article 706-56 of said Code as worded prior to said statute are in conformity with the Constitution.

Article 3: 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 7th 1958 referred to hereinabove.

Deliberated by the Constitutional Council sitting on September 16th 2010 and composed of Messrs Jean-Louis DEBRE, President, Messrs Jacques BARROT, Mrs Claire BAZY MALAURIE, Messrs Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Messrs Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on September 16th 2010.