On June 29th 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° 12108 of June 25th 2010), application made respectively by Mr Bulent A, Miss Gulay A, Messrs Deniez D, Cemal K, Ibrahim S, Sedrettin Y and Idriss G, Miss Mensure K, Messrs Adil D, Ismail A, Hekim O and Lionel B pertaining to the conformity with the rights and freedoms guaranteed by the Constitution of Articles, 63-1, 63-4, 77 and 706-88 of the Code of Criminal Procedure
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° 2004-204 of March 9th 2004 adapting the Administration of Justice to the changing face of crime and decision n° 2004-492 DC of the Constitutional Council dated March 2nd 2004;
Having regard to Act n° 2006-64 of January 23rd 2006 pertaining to the Fight against terrorism and containing various provisions pertaining to security and border controls, in particular section 17 thereof and decision n° 2005-532 DC of the Constitutional Council dated January 19th 2006;
Having regard to decision n° 2010-14/22 QPC of the Constitutional Council dated July 30th 2010;
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 .S, made by the SCP Piwnica and Molinié, Attorneys at the Conseil d'Etat and the Cour de cassation, registered on July 21st 2010;
Having regard to the observations on behalf of Miss A and Messrs A and O made by the SCP Nicolay, de Lanouvelle, Hannotin, Attorneys at the Conseil d'Etat and the Cour de cassation, registered on July 21st 2010;
Having regard to the observations on behalf of Mr B made by Me Didier Bouthors, Attorney at the Conseil d'Etat and the Cour de cassation, registered on July 22nd 2010;
Having regard to the observations of the Prime Minister, registered on July 22nd 2010
Having regard to the further observations on behalf of Mr S, registered on July 30th 2010;
Having regard to the documents produced and appended to the case file;:
Attorneys Sylvie Boitel, Didier Bouthors, Joseph Breham, Sophie Brondel and Suzanne Bouyssous, on behalf of the Applicants, and Mr Thierry-Xavier Girardot, representing the Prime Minister, were heard by the Council sitting in open court on September 14th 2010;
Having heard the Rapporteur;
ON THE FOLLOWING GROUNDS
- WITH RESPECT TO ARTICLES 63-1, 63-4 AND 77 OF THE CODE OF CRIMINAL PROCEDURE
- By its decision of July 30th 2010 referred to above, the Constitutional Council held that Articles 63-1, 63-4, paragraphs 1 to 6, and Article 77 of the Code of Criminal Procedure were unconstitutional and that it was not incumbent upon it to rule on paragraph 7 of Article 63-4 of the same Code. Hence it is not necessary for the Council to examine the application for a priority preliminary ruling on the issue of constitutionality dealing with the abovementioned Articles.
- WITH RESPECT TO ARTICLE 706-88 OF THE CODE OF CRIMINAL PROCEDURE
- Article 706-88 of the Code of Criminal Procedure provides : "For the application of Articles 63,77 and 154, should the needs of the investigation or the preliminary judicial inquiry into one of the offences coming under the scope of Article 706-73 so require, the remanding of a person in police custody for questioning may exceptionally be extended for two further periods of 24 hours each.
These extensions are authorised by a reasoned written decision either, at the request of the Public Prosecutor, by the Freedom and Detention Judge or by the Investigating Magistrate.
The person remanded in police custody for questioning must be presented before the judge who will rule on the extension of the period of remand prior to the taking of the decision with respect thereto. The second extension may however be exceptionally authorised without any prior presentation of the person remanded in view of the necessities of the investigations underway or to be carried out.
When the first extension has been decided upon, the person remanded shall be examined by a doctor appointed by the Public Prosecutor, the Investigating Magistrate or a CID Police officer. The doctor shall issue a medical certificate in which he shall in particular give his opinion as to the fitness of the person involved for an extension of the period of remand and this opinion shall be appended to the case file. The person remanded shall be informed by the CID Police officer of his/her right to request a further medical examination and this information shall be recorded in the official record of the remand. The person remanded shall sign this record and in the event of refusal to do so, said refusal shall be entered on this record.
As a departure from the provisions of paragraph 1 hereof, if the foreseeable length of investigations still to be completed after the expiry of the first 48 hours of remand so warrant, the Freedom and Detention Judge or the Investigating Magistrate may decide, in the manner provided for in paragraph 2 hereof, that the remand in custody shall be extended for one further single period of 48 hours.
The person whose period of remand is extended under the provisions hereof may request to be allowed to speak with a lawyer, in the manner provided for in Article 63-4 upon the expiry of the 48th hour, and then on the 72nd hour of the remand. He/she shall be automatically informed of this right when he/she has been notified of the extension(s) and said extension(s) are entered on the record and signed by the person remanded. Refusal to sign said record shall also be entered thereon. However when the investigation concerns an offence coming under the scope of 3° and 11° of Article 706-73, the opportunity to speak with a lawyer will only be granted after the 72nd hour.
If the first elements obtained by the investigation or the remanding in custody for police questioning show that there is a serious risk of an imminent terrorist attack in France or abroad and that the needs of international cooperation imperatively so require, the Freedom and Detention Judge may, exceptionally and in the manner provided for in paragraph 2 hereof, decide that the remanding in custody currently underway may, on the basis of one of the offences referred to in 11° of Article 706-73, be extended for a further period of 24 hours, which may be renewed once.
Upon the expiry of the 96th hour and the 120th hour, the person whose period of remand has been thus extended may request to speak with a lawyer in the manner provided for in Article 63-4. The person remanded shall be informed of this right upon notification of the extension provided for herein.
In addition to the possibility of a medical examination carried out at the request of the person remanded, said person shall automatically be examined by a Doctor appointed by the Public Prosecutor, the Investigating Magistrate or the CID Police officer. The Doctor thus appointed shall give his opinion on the compatibility of extending the period of remand with the state of health of the remanded person.
If the person remanded has not been allowed to inform by telephone a person with whom he/she habitually resides or a member of his/her family in the direct line, one of his/her brothers, sisters or his/her employer of the measures taken in his/her respect, in the manner provided for in Articles 63-1 and 63-2, said person may repeat this request as from the 96th hour."
- The six first paragraphs of Article 706-88 of the Code of Criminal Procedure derive from section 1 of the Act of Match 9th 2004 referred to above. The last four paragraphs of said Article were added by section 17 of the Act of January 23rd 2006 referred to above.
As regards paragraphs 1 to 6 of Article 706-88 of the Code of Criminal Procedure:
- In paragraphs 21 to 27 of its decision of March 2004 referred to above, the Constitutional Council specifically examined Article 706-88 which was inserted into the Code of Criminal Procedure by section 1 of the Act of March 9th 2004. It found that these provisions did not constitute any excessive infringement of the freedom of the individual. Article 2 of the holding of said decision found these provisions to be constitutional. The six first paragraphs of Article 706-88 were thus found to be constitutional in the grounds and holding of a decision of the Constitutional Council. In the absence of any change of circumstances since the decision of March 2nd 2004 referred to above dealing with the fight against organised crime, it is not incumbent upon the Constitutional Council to proceed to a new review of said provisions.
As regards paragraphs 7 to 10 of Article 706-88 of the Code of Criminal Procedure:
- In its decision of January 19th 2006, the Constitutional Council did not examine paragraphs 7 to 10 of Article 706-88 which make it possible to extend the overall length of the period of remand in custody for police questioning to a total of 6 days for crimes or major offences constituting acts of terrorism, by allowing for two further 24 hour extensions. Parliamentary debate showed that such a departure may only be authorised to prevent the commission of a terrorist act in France or abroad, the imminence of which has been established by elements obtained in the framework of the investigation or the remanding in custody for police questioning or through international cooperation. Such measures may thus only be exceptionally implemented to protect the safety and security of persons and property against an imminent terrorist threat which has been specifically identified. They are decided by the Freedom and Detention Judge who shall duly verify that the specific conditions laid down by these provisions have been met. In these conditions and in view of the guarantees laid down by Parliament these provisions comply with the principle, deriving from Article 9 of the Declaration of the Rights of Man and the Citizen of 1789, whereby the freedom of the individual may not be restricted in any unnecessarily harsh manner, and Article 66 of the Constitution which entrusted the Judicial authority with the task of protecting the freedom of the individual. These provisions do not infringe any other constitutionally guaranteed right or freedom.
Article 1: It is not incumbent upon the Constitutional Council to rule on the application for a priority preliminary ruling on the issue of constitutionality referred to it by the Cour de cassation in connection with Articles 63-1, 63-4 and 77 of the Code of Criminal Procedure, and paragraphs 1 to 6 of Article 706-88 thereof.
Article 2: Paragraphs 7 to 10 of Article 706-88 of said Code are constitutional..
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 21st 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 22nd 2010.