Decision no. 2011-147 QPC of 8 July 2011

On 4 May 2011 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 from the Cour de cassation (decree no. 2411 of 27 April 2011), raised by Mr J. Tarek, relating to the compatibility of Articles L. 251-3 and L. 251-4 of the Code of Judicial Organisation with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58−1067 of 7 November 1958 as amended, concerning organic law on the Constitutional Council;

Having regard to the Code of Judicial Organisation;

Having regard to the law of 12 April 1906 amending Articles 66 and 67 of the Criminal Code, 340 of the Code of Criminal Procedure and determining legal majority at the age of eighteen;

Having regard to the law of 22 July 1912 on Juvenile and Youth Courts and on probation;

Having regard to Ordinance n° 45-174 of 2 February 1945 relating to juvenile delinquency;

Having regard to the Regulation of 4 February 2010 on 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 of the Prime Minister, registered on 26 May 2011;
Having regard to the letter of 9 June 2011 by which the Constitutional Council submitted to the parties an objection that it had standing to raise;

Having regard to the observations on behalf of the applicant by Jean-Baptiste Gavignet Esq., Attorney at the Dijon Bar, registered on 14 June 2011;

Having regard to the observations of the Prime Minister, registered on 15 June 2011;

Having regard to the documents produced and appended to the case files;

Having heard Esq. Gavignet on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 21 June 2011;

Having heard the Rapporteur;

1. Considering that Article L. 251−3 of the Code of Judicial Organisation provides: “The Juvenile Court is constituted of a children's judge, a presiding judge and several associate judges”;

2. Considering that Article L. 251−4 of that Code provides: “The incumbent and alternate associate judges are chosen from among persons older than thirty years of age, of French nationality and who stand out through their interest in childhood issues and through their areas of expertise.
   “The associate judges are appointed for four years by the Minister of Justice. Appointments are renewed by half. However, in case of the forming a Juvenile Court, increasing or reducing the number of associate judges in these jurisdictions, or replacing one or more of these associate judges on a date other than the one which is scheduled for the renewal of their appointment, interested parties shall be appointed for a period of less than four years within the time required in order to allow for half of them to be replaced”;

3. Considering that, according to the applicant, the presidency of the Juvenile Court by a children's judge responsible for the proceedings and the majority presence of associate judges within this court, disregards Article 66 of the Constitution; that in addition, the Constitutional Council automatically raised the objection alleging that the presidency of the Juvenile Court by the children's judge who has conducted an investigation into the proceedings would undermine the principle of impartiality of the courts;

• ON THE ASSOCIATE JUDGES OF THE JUVENILE COURT:

4. Considering that 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”; that, if these provisions are opposed to the power of imposing custodial sentences being entrusted to a court which would only be made up of lay judges, they themselves shall not forbid this power being exercised by a criminal court of law within which such judges are in session;

5. Considering, however, that in this case, appropriate guarantees must be made which allow for the principle of independence to be fulfilled, inseparable from the exercising of judicial functions, as well as legal capacity requirements, which result from Article 6 of the Declaration of the Rights of Man and of the Citizen of 1789; that, regarding the composition of criminal courts, the proportion of lay judges must remain a minority;

6. Considering, on the one hand, that by virtue of Article L. 251-1 of the Code of Judicial Organisation, the Juvenile Court is a specialised criminal court which “deals with, within the conditions defined by Ordinance n° 45-174 of 2 February 1945 relating to juvenile delinquency, violations and crimes committed by minors and crimes committed by sixteen-year-old minors”; that, consequently, by making provision for the majority associate lay judges in session at this court, the disputed provisions do not disregard the aforementioned constitutional requirements;

7. Considering, on the other hand, that Article L. 251-4 sets out that the associate judges are appointed for four years and “chosen from among persons older than thirty years of age, of French nationality and who stand out through their interest in childhood issues and through their areas of expertise”; that Article L. 251-5 specifies that they shall take an oath before taking office; that article L. 251-6 arranges that the court of appeal may declare as dismissed associate judges who “without just cause, have failed to comply with several successive notices to attend” and impose their forfeiture “in cases of serious fault tainting their honour or integrity”; that, within these conditions, regarding these functions of associate judges, the disputed provisions disregard neither the principle of independence, inseparable from the exercising of judicial functions, nor the legal capacity requirements which result from Article 6 of the Declaration of 1789; that, therefore, Article 251-4 of the Code of Judicial Organisation, which disregards no other right or liberty that the Constitution guarantees, is constitutional;

• ON THE PRESIDENT OF THE JUVENILE COURT:

8. Considering, on the one hand, that Article 16 of the Declaration of Man and the Citizen of 1789 provides: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; the principle of impartiality is indissociable from the exercise of judicial functions;

9. Considering, on the other hand, that the mitigation of the criminal responsibility of minors depending on the age, as the need to search for the educational and moral reconstruction of juvenile delinquents through measures adapted to their age and personality, imposed by a specialised court or according to appropriate procedures, has been constantly recognised by the laws of the Republic since the beginning of the twentieth century; that these principles are notably reflected in the law of 12 April 1906 on the legal majority of minors; the law of 22 July 1912 on Juvenile Courts and the Ordinance of 2 February 1945 on juvenile delinquency; that, however, Republican legislation before the coming into force of the Constitution of 1946 did not establish any rule according to which binding measures or penalties should always be avoided in favour of purely educational measures; that in particular, the original provisions of the Ordinance of 2 February 1945 did not rule out the criminal responsibility of minors and did not exclude, if necessary, measures being imposed on them such as fostering, supervision, detention or, for minors older than thirteen years of age, custody; that such is the scope of the fundamental principle recognised by the laws of the Republic in terms of juvenile justice;

10. Considering that the aforementioned Ordinance of 2 February 1945, from which the disputed provisions have resulted, introduced a children's judge, a competent judge and a juvenile court presided over by the children's judge; that the children's judge is, according to Article 7 of this Ordinance, referred by the Public Prosecutor to the court in the jurisdiction where the children's judge has its seat and who is alone in charge of the proceedings; that by virtue of Article 8 of this same Ordinance, the children's judge carries out “all reasonable efforts and investigations in order to ascertain the truth and knowledge about the minor's personality as well as appropriate means for the minor's re-education”; that this article, furthermore, states that it may “then, by order, either declare that there is no basis to follow and proceed as it is stated in Article 177 of the Criminal Procedure Code, or to return the minor before the juvenile court”; that no provision from the Ordinance of 2 February 1945 or from the Criminal Procedure Code shall obstruct the children's judge from being involved in the judgment of criminal cases that it has investigated;

11. Considering that the principle of impartiality of the courts is not opposed to the children's judge, who has investigated the proceedings, possibly imposing, at the end of this investigation, measures of assistance, supervision or education; that, however, by allowing the children's judge who has been charged with carrying out every reasonable effort in order to ascertain the truth and who has returned the minor before the juvenile court to preside over this trial court authorised to impose sentences, the disputed provisions prejudice the principle of impartiality of the courts against the Constitution; that, therefore, Article L. 251-3 of the Code of Judicial Organisation is unconstitutional;

12. Considering that in principle, a declaration of unconstitutionality must benefit the party which has submitted the priority preliminary ruling on the issue of constitutionality; that, however, the immediate repeal of Article L. 251-3 of the Code of Judicial Organisation would disregard the fundamental principle recognised by the laws of the Republic in terms of the criminal justice of minors and would result in clearly excessive consequences; that, therefore, so as to allow for the legislator to end this unconstitutionality, it is appropriate to put back the date of this repeal to 1 January 2013,

HELD:

Article 1.- Article L. 251-3 of the Code of Judicial Organisation is unconstitutional.

Article 2.- Article L. 251−4 of the same code is constitutional.

Article 3.- The declaration of unconstitutionality provided for by Article 1 shall take effect on 1 January 2013 in the conditions set down by recital 12 of this decision.

Article 4.- This decision shall be published in the Journal officiel of the French Republic and notified in the conditions provided for under Article 23−11 of the aforementioned Ordinance of 7 November 1958.

Deliberated by the Constitutional Council in its session on 7 July 2011, sat on by: Mr. Jean-Louis DEBRÉ, President, Mr. Jacques BARROT, Mrs. Claire BAZY MALAURIE, Messrs. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Hubert HAENEL and Pierre STEINMETZ.

Announced on 8 July 2011.

Journal officiel of 9 July 2011, p. 11979 (@ 103)