Decision no. 2011-163 QPC of 16 September 2011

On 27 June 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 (criminal chamber, decree no. 4006 of 22 June 2011) raised by Mr Claude N., regarding the compatibility of Articles 222-31-1 of the Criminal Code 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 the basic law on the Constitutional Council;

Having regard to the Criminal Code;

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 on behalf of the applicant by SCP Waquet, Farge & Hazan, Attorney at the Conseil d'État and the Cour de Cassation, registered on 13 July and 3 August 2011;

Having regard to the observations of the Prime Minister, registered on 19 July 2011;

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

Having heard Esq. Claire Waquet on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 06 September 2011;

Having heard the Rapporteur;

1. Considering that Article L. 222-31-1 of the Criminal Code provides: "Rape and sexual assaults are classified as incestuous when committed within the family against a minor by a direct ascendant, a brother, a sister or any other person, including a partner or family member, having legal or de facto control over the victim";

2. Considering that, according to the applicant, by not defining family relationships that lead to a rape or sexual assault being classified as incestuous, these provisions violate the principle of the legality of criminal offences and punishments; that they would also violate the principle of the non-retroactivity of the criminal law which is more severe;

3. Considering that pursuant to Article 34 of the Constitution, as well as the principle of the legality of criminal offences and punishments according to Article 8 of the 1789 Declaration of the Rights of Man and the Citizen, the legislator is under the obligation to determine the scope of the criminal law and to define criminal offences and other offences in sufficiently clear and precise terms;

4. Considering that, whilst the legislator had the discretion to establish a particular criminal law qualification in order to classify sexual assaults as incestuous, he could not refrain from precisely specifying the persons who must be considered as family members under that classification without infringing the principle of the legality of criminal offences and punishments; that accordingly, the contested provision must be ruled unconstitutional, without there being a need to examine the other claim;

5. Considering that the second paragraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits under which the effects produced by the provision may be questioned"; that, if, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect;

6. Considering that the repeal of Article 222-31-1 of the Criminal Code will take effect on the date this decision is published; that starting from that date, no conviction may be qualified as a criminal or "incestuous"offence as provided for under that Article; that, when final judgement has been passed on that date, the mention of this classification may not be included in the criminal record,

HELD:

Article 1.- Article 222-31-1 of the Criminal Code is unconstitutional.

Article 2. - The declaration of unconstitutionality of Article 1 shall take effect on the date this decision is published in the conditions set down by recital 6.

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 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 29 September 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL, and Mr. Pierre STEINMETZ.

Announced on 16 September 2011.