Decision no. 2011-635 DC of 4 August 2011

In the conditions provided for by Article 61-2 of the Constitution, the Constitutional Council was seized of an application relating to the Law on the participation of citizens in the functioning of criminal justice and the sentencing of minors on 7 July 2011 by Mr Jean-Marc AYRAULT, Ms Sylvie ANDRIEUX, Messrs Jean-Paul BACQUET, Gérard BAPT, Ms Delphine BATHO, Ms Marie-Noëlle BATTISTEL, Messrs Serge BLISKO, Jean-Michel BOUCHERON, Ms Monique BOULESTIN, Mr Pierre BOURGUIGNON, Ms Danielle BOUSQUET, Messrs François BROTTES, Alain CACHEUX, Guy CHAMBEFORT, Jean-Paul CHANTEGUET, Gérard CHARASSE, Alain CLAEYS, Ms Marie-Françoise CLERGEAU, Messrs Gilles COCQUEMPOT, Pierre COHEN, Ms Pascale CROZON, Mr Frédéric CUVILLIER, Ms Claude DARCIAUX, Messrs Pascal DEGUILHEM, Guy DELCOURT, Bernard DEROSIER, René DOSIÈRE, Julien DRAY, Tony DREYFUS, Jean-Pierre DUFAU, William DUMAS, Ms Laurence DUMONT, Messrs Jean-Paul DUPRÉ, Yves DURAND, Olivier DUSSOPT, Christian ECKERT, Albert FACON, Hervé FÉRON, Ms Aurélie FILIPPETTI, Ms Geneviève GAILLARD, Messrs Guillaume GAROT, Jean GAUBERT, Jean-Patrick GILLE, Joël GIRAUD, Jean GLAVANY, Daniel GOLDBERG, Marc GOUA, Jean GRELLIER, Ms Élisabeth GUIGOU, Mr David HABIB, Ms Danièle HOFFMAN-RISPAL, Messrs Serge JANQUIN, Régis JUANICO, Ms Marietta KARAMANLI, Ms Conchita LACUEY, Messrs Jérôme LAMBERT, Jack LANG, Ms Colette LANGLADE, Messrs Jean LAUNAY, Jean-Yves LE BOUILLONNEC, Gilbert LE BRIS, Jean-Yves LE DÉAUT, Jean-Marie LE GUEN, Ms Annick LE LOCH, Mr Bruno LE ROUX, Ms Marylise LEBRANCHU, Messrs Michel LEFAIT, Bernard LESTERLIN, Albert LIKUVALU, Jean MALLOT, Jean-René MARSAC, Philippe MARTIN, Ms Frédérique MASSAT, Mr Didier MATHUS, Ms Sandrine MAZETIER, Messrs Michel MÉNARD, Pierre-Alain MUET, Alain NÉRI, Ms George PAU-LANGEVIN, Messrs Germinal PEIRO, Jean-Luc PÉRAT, Jean-Claude PEREZ, Philippe PLISSON, François PUPPONI, Dominique RAIMBOURG, Marcel ROGEMONT, Bernard ROMAN, René ROUQUET, Michel SAPIN, Christophe SIRUGUE, Jean-Louis TOURAINE, Philippe TOURTELIER, Jean-Jacques URVOAS, André VALLINI, Manuel VALLS, Michel VAUZELLE, Alain VIDALIES, Philippe VUILQUE, Ms Marie-Hélène AMIABLE, Mr François ASENSI, Ms Martine BILLARD, Messrs Alain BOCQUET, Patrick BRAOUEZEC, Jean-Pierre BRARD, Ms Marie-George BUFFET, Messrs Jean-Jacques CANDELIER, André CHASSAIGNE, Jacques DESALLANGRE, Marc DOLEZ, Ms Jacqueline FRAYSSE, Messrs André GERIN, Pierre GOSNAT, Jean-Paul LECOQ, Roland MUZEAU, Daniel PAUL, Jean-Claude SANDRIER, Michel VAXES, Yves COCHET, Noël MAMÈRE, François de RUGY and Ms Anny POURSINOFF, Members of Parliament;
 
and on 8 July 2011 by Mr Jean-Pierre BEL, Ms Jacqueline ALQUIER, Ms Michèle ANDRÉ, Messrs Serge ANDREONI, Bernard ANGELS, Alain ANZIANI, David ASSOULINE, Bertrand AUBAN, Robert BADINTER, Claude BÉRIT-DÉBAT, Jacques BERTHOU, Ms Marie-Christine BLANDIN, Ms Maryvonne BLONDIN, Mr Yannick BODIN, Ms Nicole BONNEFOY, Mr Yannick BOTREL, Ms Alima BOUMEDIENE-THIERY, Mr Martial BOURQUIN, Ms Bernadette BOURZAI, Mr Michel BOUTANT, Ms Nicole BRICQ, Messrs Jean-Pierre CAFFET, Ms Claire-Lise CAMPION, Mr Jean-Louis CARRÈRE, Ms Françoise CARTRON, Mr Bernard CAZEAU, Ms Monique CERISIER-ben-GUIGA, Messrs Yves CHASTAN, Pierre-Yves COLLOMBAT, Yves DAUDIGNY, Marc DAUNIS, Jean-Pierre DEMERLIAT, Ms Christiane DEMONTÈS, Mr Jean DESESSARD, Ms Josette DURRIEU, Messrs Alain FAUCONNIER, Bernard FRIMAT, Charles GAUTIER, Ms Samia GHALI, Messrs Serge GODARD, Jean-Pierre GODEFROY, Didier GUILLAUME, Claude HAUT, Edmond HERVÉ, Ms Annie JARRAUD-VERGNOLLE, Messrs Claude JEANNEROT, Ronan KERDRAON, Ms Bariza KHIARI, Ms Virginie KLÈS, Messrs Yves KRATTINGER, Serge LAGAUCHE, Serge LARCHER, Jacky LE MENN, Roger MADEC, Philippe MADRELLE, Jacques MAHÉAS, Jean-Pierre MICHEL, Jean-Jacques MIRASSOU, Ms Renée NICOUX, Messrs Jean-Marc PASTOR, François PATRIAT, Ms Gisèle PRINTZ, Messrs Marcel RAINAUD, Daniel RAOUL, Paul RAOULT, Daniel REINER, Thierry REPENTIN, Ms Patricia SCHILLINGER, Mr Jean-Pierre SUEUR, Ms Catherine TASCA, Messrs Michel TESTON, René TEULADE, Jean-Marc TODESCHINI, Richard YUNG, Jacques MÉZARD, Yvon COLLIN, Ms Françoise LABORDE, Ms Anne-Marie ESCOFFIER, Ms Nicole BORVO COHEN-SEAT, Ms Eliane ASSASSI, Ms Marie-France BEAUFILS, Ms Annie DAVID, Ms Michelle DEMESSINE, Ms Evelyne DIDIER, Messrs Guy FISCHER, Thierry FOUCAUD, Ms Brigitte GONTHIER-MAURIN, Mr Gérard LE CAM, Ms Josiane MATHON, and Messrs Jack RALITE, Ivan RENAR and Jean-François VOGUET, Senators.
 
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 Criminal Code;
 
Having regard to the Code of Criminal Procedure;
 
Having regard to Ordinance n° 45-174 of 2 February 1945 relating to juvenile delinquency; 
 
Having regard to Decision no. 2011-113/115 QPC of the Constitutional Council of 1 April 2011;
 
Having regard to Decision no. 2011-147 QPC of the Constitutional Council of 8 July 2011;
 
Having regard to the observations of the Government, registered on 25 July 2011;
 
Having heard the Rapporteur;
 

1. Considering that the applicant Members of Parliament and Senators have referred the Law on the participation of citizens in the functioning of criminal justice and the sentencing of minors to the Constitutional Council; that they object to the adoption procedure contained in Article 19; that they also object to the provisions contained in Title I, in particular insofar as they are to be applied on an experimental basis in accordance with Article 54; that they finally question the constitutionality of certain provisions contained in Articles 12 and 13 relating to the Assize Court, as well as Articles 33, 38, 49 and 50 concerning criminal justice for minors; that the applicant Senators moreover challenge the constitutionality of certain provisions of Articles 32 and 34;
    

• WITH RESPECT TO THE ADOPTION PROCEDURE UNDER ARTICLE 19:
   

2. Considering that Article 19 of the Law repeals Article 131-36-1 of the Criminal Code which provides that mobile electronic monitoring may be ordered either by a specifically motivated decision of a Correctional Court or, in cases before the Assize Court, by qualified majority;
    
3. Considering that, according to the applicants, this Article has been adopted in breach of Article 45 of the Constitution;
    
4. Considering that the second phrase of the first subparagraph of Article 45 of the Constitution provides: "Without prejudice to the application of Articles 40 and 41, all amendments which have a link, even an indirect one, with the text that was tabled or transmitted, shall be admissible on first reading";
    
5. Considering that the provisions of Article 19, which were incorporated into the draft bill during its first reading before the National Assembly, are linked with the provisions concerning the giving of reasons for decisions in criminal matters as well as with those relating to house arrest with electronic monitoring which are included in the draft bill initially tabled; that the objection alleging that this Article has been adopted according to an unconstitutional procedure must be dismissed; that this Article does not violate any other constitutional requirement; that it must accordingly be upheld as constitutional;
    

• WITH RESPECT TO THE PARTICIPATION OF CITIZENS IN THE FUNCTIONING OF CRIMINAL JUSTICE:
   
  . As far as the participation of citizen associate judges in judgments in criminal cases is concerned:
   

6. Considering that Chapter I of the Law is dedicated to citizen associate judges; that Article 1 thereof introduces Articles 10-1 to 10-14 into the Code of Criminal Procedure; that the three last subparagraphs of Article 10-1 provide that citizens may be appointed as citizen associate judges to complete the Correctional Court and the Correctional Appeals Chamber in the cases provided for under Articles 399-2 and 510-1 of the Code of Criminal Procedure, and to complete the Sentencing Court and the Sentencing Appeals Chamber at the Court of Appeal in the cases provided for under Articles 712-13-1, 720-4-1 and 730-1 of the Code;
    
7. Considering that pursuant to Article 10-2, a list of citizen associate judges is drawn up each year for each Regional Court; that Article 10-3 determines the prerequisites for inclusion in that list; that Article 10-4 provides that the citizen associate judges be appointed from the persons included in a preliminary list drawn by lots from the electoral rolls; that Article 10-5 determines the procedures according to which the list of citizen associate judges is drawn up by the committee provided for under Article 262 which examines the circumstances of the persons included in the preliminary list in an order determined by drawing lots; that it provides that the committee shall exclude any individuals who do not meet the prerequisites, those to whom an exemption is granted and those who "clearly do not appear to be capable of performing the functions of a citizen associate judge", in particular for reasons that raise doubts as to their impartiality, honourability or integrity; that Article 10-6 determines the grounds on which citizen associate judges may be withdrawn from the list by decision of the first president of the Court of Appeal; that Articles 10-7 to 10-9 determine the procedures according to which the service of citizen associate judges is defined; that Article 10-10 provides that each citizen associate judge may not in principle be called to sit for more than ten days of hearings each year; that Article 10-11 provides for the swearing in of citizen associate judges; that Article 10-12 determines the grounds on which they may be recused; that Article 10-13 provides that the exercise of the functions of a citizen associate judge amounts to a civic duty and punishes breaches of this duty; that finally, Article 10-14 authorises the Conseil d'État to issue a decree determining the procedures governing the application of the above provisions, including in particular "the procedures according to which citizen associate judges must receive training on the funtioning of criminal justice as well as the role of citizen associate judges before performing their functions";
    
8. Considering that, according to the applicants, these provisions violate the right to an independent and impartial court and the prerequisites of selection according to ability contained in Article 6 of the 1789 Declaration of the Rights of Man and the Citizen;
    

• With respect to the applicable rules on constitutionality:
   

9. Considering that Article 64 of the Constitution provides: "The President of the Republic shall be the guarantor of the independence of the Judicial Authority. - He shall be assisted by the High Council of the Judiciary. - An organic law shall determine the status of members of the Judiciary. - Judges shall be irremovable from office"; that pursuant to Article 66 of the Constitution: “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 pursuant to the Article 6 of the 1789 Declaration, all citizens are equally eligible to all dignities and to all public positions and occupations, "according to their abilities, and without distinction except that of their virtues and talents";
    
10. Considering that, on the one hand, although the office of judge must in principle be performed by individuals who intend to dedicate their professional life to the judiciary, the Constitution does not preclude the possibility that, on a limited scale, the functions normally reserved to career judges may be exercised on a temporary basis by individuals who do not however intend to embark on a career as a judge; that, on the other hand, although the provisions of Article 66 of the Constitution prevent the power to rule on measures involving the deprivation of liberty from being vested in a court that is only comprised of non-professional judges, they do not however prevent this power from being exercised by an ordinary criminal court on which these judges are sitting; that in such cases however, appropriate guarantees must be provided that make it possible to comply with the requirement of independence, which is inseparable from the exercise of judicial powers, as well as the requirements of selection according to ability resulting from Article 6 of the 1789 Declaration; that moreover, insofar as it relates to ordinary criminal courts, the proportion of lay judges must remain in a minority;
     
11. Considering that the prerequisites laid down by Articles 64 and 66 of the Constitution do not require that citizens drawn by lot to participate on an occasional basis as associate judges in the administration of criminal justice be subject to the same rights and obligations as are applicable to judges as a whole, subject to the sole reservation of the specific provisions which these duties performed on a temporary or partial basis require; that accordingly Article 1 of the Law must be upheld as constitutional;
     
12. Considering that the aforementioned provisions nonetheless do not subject the exercise of the duties of citizen associate judge to the requirement of judicial expertise or experience regarding matters liable to be placed before them for judgment; that accordingly Article 6 of the 1789 Declaration requires that the nature of the questions of law or of fact on which the citizen assessors are called to rule, as well as the procedures according to which they rule, be defined in such a way that they are enabled to rule in an informed manner on the matters placed before them for decision;
     

• With respect to the participation of citizens in the judgment of misdemeanours:
   

13. Considering that Article 5 of the Law completes Section 2 of Chapter I of Title II of Book II of the Code of Criminal Procedure with paragraph 2 entitled: "The Correctional Court comprised of citizens" and including Articles 399-1 to 399-11; that Article 399-1 provides that, with respect cases involving the misdemeanours listed in Article 399-2, the Correctional Court shall be comprised of three judges from the Regional Court and two citizen associate judges; that pursuant to Article 399-2: "Pursuant to Article 399-1, the following misdemeanours shall be judged by the Correctional Court including citizen associate judges:
    "1. Assault liable to a term of imprisonment equal to or greater than five years provided for under Title II of Book II of the Criminal Code;
    "2. Robbery as provided for under the second subparagraph of Article 311-4, the first and last subparagraph of Article 311-5 and Article 311-6 of the Criminal Code, as well as extortion as provided for under Articles 312-1 and 312-2 of the Code;
    "3. The destruction, degradation or deterioration of property that is dangerous for persons liable to a term of imprisonment equal to or greater than five years provided for under Section 2 of Chapter II of Title II of Book III of the Criminal Code;
    "4. Identity theft provided for under Article 434-23 of the Criminal Code;
    "5. The misdemeanours provided for under the Environmental Code liable to a term of imprisonment equal to or greater than five years.
    "However, the Correctional Court including citizen associate judges shall not have jurisdiction to try the misdemeanours specified under this Article if the relevant misdemeanour is referred to under Articles 706-73 and 706-74 or, without prejudice to the provisions of Article 399-3, referred to under Article 398-1 of this Code";
     
14. Considering that Article 399-4 of the Code of Criminal Procedure provides that citizen associate judges may only participate in the decisions of the Correctional Court as regards the determination of questions of fact, the guilt of the accused and the sentence, and that all other questions are to be decided by the judges alone; that the legislator accordingly enacted legislation precisely in order to guarantee that the judgment of misdemeanours under general criminal law by persons drawn by lots should not be incompatible with the requirements of Article 6 of the 1789 Declaration; that, nonetheless, the offences provided for under Book IV of the Criminal Code and those provided for under the Environmental Code are of such a nature that their examination requires specialist legal expertise which precludes individuals selected by drawing lots from participation; that accordingly, subparagraphs 4 and 5 of Article 399-2 must be ruled unconstitutional;
     

• With respect to the participation of citizens in decisions relating to sentencing:
   

15. Considering that Article 15 of the Law referred provides that the citizen associate judges shall participate in decisions relating to sentencing when ruling on the reduction of the minimum sentence, release on parole for custodial sentences exceeding five years and, in this case, when ruling that the sentence is to be enforced under a regime of semi-liberty and subject to electronic monitoring, when these measures are implemented on a trial basis prior to release on parole; that this Article also provides that they shall participate in the examination on appeal of all decisions issued by the Sentencing Court on the basis of Article 712-7 of the Code of Criminal Procedure;
     
16. Considering that the participation by citizen associate judges in the assessment by the Sentencing Courts of the basic prerequisites that result in the review of sentences does not in itself breach the requirements of Article 6 of the 1789 Declaration; that nonetheless, even absent an express provision limiting this participation solely to such basic questions, the legal complexity of the sentencing regime would not permit citizen associate judges to participate in the judgment of any other question on which the Sentencing Court or the Sentencing Chamber may be called to rule, such as the assessment of the prerequisites for the admissibility of the claims or the examination of procedural questions; that, subject to this reservation, Article 15 is not unconstitutional;
     
    . With respect to application on an experimental basis:
     
17. Considering that the first subparagraph of Article 54(2) provides: "Articles 10-1 to 10-14, 258-2, 264-1, 399-1 to 399-11, 461-1 to 461-4, 486-1 to 486-5, 510-1, 512-1, 712-13-1, 720-4-1 and 730-1 of the Code of Criminal Procedure and Article 24-4 of aforementioned Ordinance no. 45-174 of 2 February 1945, as resulting from this Law, shall be applicable on an experimental basis with effect from 1 January 2012 in at least two courts of appeal and until 1 January 2014 in at most ten courts of appeal. The courts of appeal concerned shall be determined by decision of the Justice Minister"; that accordingly, this legislation provides for the addition of citizen associate judges on an experimental basis to the Correctional Courts, the Correctional Appeals Chambers, the Sentencing Courts and Chambers, and the Correctional Courts for Minors;
     
18. Considering that, according to the applicants, these provisions violate the principle of equality before the law as well as the limited and reversible nature that the experiment must have and exceed the legislator's jurisdiction;
     
19. Considering Article 37-1 of the Constitution provides: "Statutes and regulations may contain provisions enacted on an experimental basis for limited purposes and duration"; that whilst on the basis of this provision Parliament may authorise experiments departing from the principle of equality before the law in respect of a limited object and for a limited period with a view to their subsequent general application, it must determine the object and conditions thereof in a sufficiently precise manner and may not breach other requirements of constitutional status;
     
20. Considering that in enacting the aforementioned provisions contained in Article 54, the legislator has defined the object and conditions of the experiment concerned in a sufficiently precise manner; that it has not exceeded its jurisdiction by delegating the duty to determine the courts of appeal in which this experiment will occur to a decision of the Justice Minister; that it has set a time limit on the experiment which it has authorised; that accordingly Article 54 of the law referred is constitutional;
     
    . With respect to the Assize Court:
     
21. Considering that Articles 10 to 14 of the law amend the provisions of the Code of Criminal Procedure concerning the Assize Court; that in particular, these provisions reduce the number of jurors sitting in the Assize Court at first instance from nine to six and the number of those sitting on the Assize Court of Appeal from twelve to nine; that they amend the provisions of Article 359 of the Code of Criminal Procedure concerning the majority of votes necessary in order to adopt a decision that is unfavourable to the accused; that they moreover introduce into the Code Article 365-1 on the giving of reasons for the judgments of the Assize Court;
     
22. Considering that it follows from Articles 7, 8 and 9 of the 1789 Declaration that it is for the legislator, when exercising its powers, to determine the rules of criminal law and the law of criminal procedure in such a manner as to exclude arbitrariness in the search for the authors of misdemeanours, the judgment of those who are prosecuted as well as in the issue and enforcement of sentences; that the obligation to give reasons for judgments and convictions constitutes a legal guarantee of this constitutional requirement;
     

• With respect to Article 359 of the Code of Criminal Procedure:
   

23. Considering that paragraph XII of Article 13 amends Article 359 of the Code of Criminal Procedure on the rules governing the majority applicable to decisions of the Assize Court; that pursuant to this Article: "Any decision unfavourable to the accused is taken by a majority of at least six votes where the assize court rules in the first instance, and by a majority of at least eight votes where the assize court rules on appeal";
     
24. Considering that, according to the applicants, in permitting that a decision unfavourable to the accused be adopted solely with the agreement of three jurors and three judges, these provisions violate "the fundamental principle recognised by the Law of the Republic according to which the existence of a popular jury is premised on the requirement that its decisions may only be taken by an absolute majority of the jurors"; that they misconstrue the sense of the decision of 1 April 2011 on the giving of reasons for the judgments of the Assize Courts and in any case breach the requirements resulting from Articles 7, 8 and 9 of the 1789 Declaration;
     
25. Considering, in the first place, that a republican tradition could not be validly invoked in support of the view that a legislative text in contradiction with it was unconstitutional where it engendered a fundamental principle recognised under the laws of the Republic; that in this case, no law of the Republic prior to the 1946 Constitution has determined the principle whereby the decisions of the Assize Court that are unfavourable to the accused may only be adopted by an absolute majority of the jurors when the jurors and judges are ruling together;
     
26. Considering secondly that in the aforementioned decision no. 2011-113/115 QPC of 1 April 2011, the Constitutional Council held that Article 359 of the Code of Criminal Procedure requires that all decisions of the Assize Court that are unfavourable to the accused must be adopted by at least the absolute majority of jurors; that it referred to this rule as one of the legal guarantees applicable to the procedures and decisions of the Assize Court, in finding that the failure to give reasons for the judgments of the Assize Court is not deemed to be a violation of the requirements laid down by Articles 7, 8 and 9 of the 1789 Declaration; that the law referred provides that reasons be given for the judgments of the Assize Court; that it follows that the objection alleging that the amendment of Article 359 of the Code of Criminal Procedure misconstrue the sense of the aforementioned decision of 1 April 2011 must be dismissed;
     
27. Considering, thirdly, that the new Article 359 requires that all decisions that are unfavourable to the accused be reached by a majority of at least six out of nine votes when the Assize Court is ruling at first instance and of eight votes out of twelve when it is ruling on appeal; that such a rule concerning the majority does not violate any principle of constitutional law;
     
28. Considering, accordingly, that Article 359 of the Code of Criminal Procedure must be upheld as constitutional;
     

• With respect to Article 365-1 of the Code of Criminal Procedure:
   

29. Considering that paragraph II of Article 12 completes Section 1 of Chapter VII of Title I of Book II of the Code of Criminal Procedure by Article 365-1 which requires that the judgments of the Assize Court be supported by reasons; that this Article provides that these reasons be drafted by one of the judges sitting on the court and be annexed to the sheet of questions, which is signed "immediately" by the president and by the foreman; that nonetheless, the last subparagraph of Article 365-1 provides: "Where due to the particular complexity of the case, associated with the number of accused or of the offences with which they are charged, it is not possible to draft the document containing reasons immediately, it shall be drafted, placed on the case file and filed in the registry of the Assize Court no later than three days after the judgment is issued";
     
30. Considering that, according to the applicants, in permitting the drafting of the reasons to be postponed by three days and in thereby granting the jurors the possibility to check that they comply with the terms of the main incriminating evidence which convinced the Assize Court, the legislator left the requirement of constitutional law prohibiting arbitrariness in sentencing without legal guarantees;
     
31. Considering that, on the one hand, it follows from Articles 380-1 and 380-9 of the Code of Criminal Procedure that convictions issued by the Court of Assize at first instance may be subject to appeal within ten days of their issue; that pursuant to Article 568 of the Code, the parties are granted five calendar days starting from the issue of the judgment of the Assize Court of Appeal to appeal to the Cour de Cassation; that, on the other hand, the possibility granted due to the particular complexity of the case, associated with the number of accused or of the offences with which they are charged, that the reasons may be drafted at the latest three days after the issue of the judgment by one of the judges from the court does not release the latter from the obligation to specify in the reasons "the terms of the main incriminating evidence which, for each of the offences with which the accused was charged, convinced the Assize Court"; that it does not introduce an unfavourable exception to the rule whereby the documents containing reasons must be signed by the president and the foreman; that, under these circumstances, the contested provision does not violate the aforementioned requirements under constitutional law; that accordingly, Article 365-1 of the Code of Criminal Procedure must be upheld as constitutional;
     

• WITH RESPECT TO JUDGMENTS CONCERNING MINORS:
   

32. Considering that Title II of the Law on judgments concerning minors contains Articles 24 to 52 amending the Ordinance of 2 February 1945 on juvenile delinquency; that the applicants dispute the provisions of Article 38 on house arrest with electronic monitoring, Articles 32 to 34 and 50 on referrals to the Juvenile Court or the Correctional Court for Minors, and Article 49 on the Correctional Court for Minors;
33. Considering 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; 
     
34. Considering moreover that it follows from Articles 8 and 9 of the 1789 Declaration that the principles of the presumption of innocence, the necessity and proportionality of sentences and the right to a defence must be respected in relation to minors as well as in relation to adults; that the protection of individual freedom guaranteed under Article 66 of the Constitution must also be respected;
     
35. Considering finally that when determining the rules relating to the criminal law applicable to minors, the legislator must ensure the reconciliation of the constitutional requirements specified above with the need to identify the authors of misdemeanours and prevent breaches of public order, including in particular the safety of persons and property which are necessary in order to safeguard rights with constitutional standing;
     
    . With respect to the placing under house arrest of a minor with electronic monitoring:
     
36. Considering that Article 38 of the Law introduces Article 10-3 into the aforementioned Ordinance of 2 February 1945 according to which: "Minors of between sixteen and eighteen years of age may be placed under house arrest with electronic monitoring subject to the conditions and according to the procedures provided for under Articles 142-5 to 142-13 of the Code of Criminal Procedure if they receive a custodial sentence of at least two years. Minors of between thirteen and sixteen years of age may only be placed under house arrest with electronic monitoring, subject to the same conditions and according to the same procedures, if they may be placed under judicial control in accordance with this Ordinance. If a minor is placed under house arrest with electronic monitoring at the home of the minor's legal guardian, their written consent shall be obtained in advance by the court with jurisdiction to order the measure. The provisions relating to mobile electronic monitoring shall not however apply to minors";
     
37. Considering that, according to the applicants, in permitting minors of between thirteen and sixteen years of age to be placed under house arrest with electronic monitoring in cases in which they may be placed under judicial control, although Article 142-11 of the Code of Criminal Procedure treats house arrest with electronic monitoring as equivalent to a provisional detentive measure, these provisions involve a rigour that is not necessary, particularly since Article 37 of the Law moreover relaxes the conditions under which a minor may be placed under judicial control;
     
38. Considering that pursuant to Article 10-2 of the Ordinance of 2 February 1945, judicial control over a minor of between thirteen and sixteen years of age is permitted in cases falling under the criminal law; that in matters relating to correction, this control is possible where the sentence imposed exceeds seven years or, in certain cases due to the minor's past conduct or to the nature of the offence with which he is charged, where it exceeds five years; that the placing under house arrest may be ordered at a location different from the home of the minor's legal guardian and does not require their consent; that accordingly, in permitting minors of between thirteen and sixteen years of age to be placed under house arrest with electronic monitoring as an alternative to judicial control in cases in which the minor may not be subject to a provisional detentive measure, the contested provisions have established a rigour that violates the aforementioned constitutional requirements; that the second sentence of Article 10-3 of the Ordinance of 2 February 1945 must be ruled unconstitutional;
     
    . With respect to the seizing of the Juvenile Court:
     
39. Considering that Article 33 introduces Article 8-3 into the Ordinance of 2 February 1945 according to which: "The Public Prosecutor may prosecute before the Juvenile Court according to the procedures specified under Article 390-1 of the Code of Criminal Procedure both minors of at least thirteen years of age if charged with having committed a misdemeanour punishable by a term of imprisonment of at least five years as well as minors of at least sixteen years of age if charged with having committed a misdemeanour punished by a term of imprisonment of at least three years.
    "The procedure provided for under the first subparagraph may only be implemented if the minor is or has already been subject to one or more procedures applied pursuant to this ordinance.
    "The summons to appear may only be issued if investigations regarding the events are not necessary and if investigations concerning the minor's personality have been completed during the previous twelve months on the basis of Article 8; however, if due to the absence of the minor during the course of previous investigations more detailed information has not been obtained regarding his personality under previous procedures pursuant to Article 8, investigations carried out pursuant to Article 12 may be taken into account.
    "The summons to appear shall specify that the minor must be accompanied by a lawyer and that, should the minor or his legal guardians fail to choose a lawyer, the Public Prosecutor or the Juvenile Court shall arrange for the president of the bar association to appoint a lawyer ex officio.
    "The summons shall also be served as quickly as possible on the parents, guardian or the person or service under whose care the minor has been placed.
    "It shall be confirmed by an official record signed by the minor and the person upon whom it has been served, who shall receive a copy.
    "The hearing shall be held no sooner than ten days and no later than two months";
     
40. Considering that, according to the applicants, these provisions which permit a minor to be summoned to appear before the Juvenile Court according to the law of criminal procedure applicable to adults violate the fundamental principle recognised under the laws of the Republic in relation to criminal justice for minors;
     
41. Considering that the contested provisions authorise the Public Prosecutor to arrange for the minor to be summoned to appear before the Juvenile Court by an officer of the court without preliminary inquiries; that this procedure is applicable to minors of more than sixteen years of age who are prosecuted for a misdemeanour punished by a term of imprisonment of at least three years and to minors of more than thirteen years of age who are prosecuted for a misdemeanour punished by a term of imprisonment of at least five years; that, in these two cases, it may only be implemented if the minor has previously been prosecuted pursuant to the Ordinance of 2 February 1945; that it may only be initiated if investigations regarding the events are not necessary and if investigations regarding the minor's personality have been carried out during the twelve months prior to the summons to appear; that there is no exception to the special provisions requiring that the minor be accompanied by a lawyer and that his legal guardians be summoned; that these provisions take account of the minor's age, the seriousness of the conduct with which he is charged and his past conduct; that, accordingly, they do not violate the requirements under constitutional law in relation to criminal justice for minors; that Article 33 must be upheld as constitutional;
     
    . With respect to the obligation to refer cases to the Juvenile Court or the Correctional Court for Minors:
     
42. Considering that Article 32 of the law referred completes Article 8 of the Ordinance of 2 February 1945, on the Juvenile Court, with a subparagraph according to which: "If the misdemeanour is punished by a term of imprisonment equal to or greater than three years and has been committed by a reoffending minor of more than sixteen years of age, judgment may not be issued in chambers and the minor shall be referred to the Correctional Court for Minors"; that Article 34 completes the third subparagraph of Article 9 of the same Ordinance, on the investigating judge, by a phrase which provides: "If the misdemeanour is punished by a term of imprisonment equal to or greater than three years and has been committed by a reoffending minor of more than sixteen years of age, the reference to the Correctional Court for Minors shall be mandatory";
     
43. Considering that, according to the applicant Senators, the obligation on the Juvenile Court or on the examining judge to refer to the trial court violates the fundamental principle recognised under the laws of the Republic in relation to criminal justice for minors;
     
44. Considering that the contested provisions are only applicable to minors of more than sixteen years of age who have been examined by the Juvenile Court or the investigating judge in relation to an offence punished by a term of imprisonment of at least three years committed by a reoffender; that, under these conditions, the court's obligation to refer to the trial court with jurisdiction to issue the sentences if it considers, following the examination stage, that the relevant conduct amounts to a misdemeanour that meets these prerequisites does not violate the aforementioned requirements under constitutional law;
     
    . With respect to the "interruption in the criminal trial":
     
45. Considering that Article 50 of the Law introduces Chapter IIIb into the Ordinance of 2 February 1945, entitled: "The interruption in the criminal trial of minors", and includes Articles 24-5 to 24-8; that in order to permit the separation in prosecutions involving minors between discussions regarding guilt and discussions regarding measures, penalties or sentencing, these articles expressly apply to prosecutions involving minors the provisions of Articles 132-58 to 132-65 of the Criminal Code relating to exemption from sentencing, simple adjournment and adjournment with probation; that they also permit the exemption from or deferral of educational measures and educational penalties and specify the supplementary cases in which an adjournment may be ordered;
     
46. Considering that pursuant to Article L. 24-7 of the Ordinance of 2 February 1945: "Notwithstanding the third subparagraph of Article 8-3 and Article 14-2(2), the Public Prosecutor may apply the procedures provided for under these articles against a minor for whom no investigation has been ordered pursuant to Article 8 and where there is not sufficient evidence within the case file regarding his personality in order to permit the court to make a ruling when requesting in its reference to the court that this chapter be applied.
    "The Juvenile Court or the Correctional Court for Minors shall therefore be required to defer the issue on the educational measure, the educational penalty or the sentence issued in accordance with Articles 24-5 and 24
     
47. Considering that, according to the applicants, these provisions enable the Public Prosecutor to ignore the conditions required in order to make a summons by officer of the court and the immediate presentation procedure on the sole grounds that he intends to request an interruption; that, accordingly, they violate the fundamental principle recognised under the laws of the Republic in relation to criminal justice for minors;
     
48. Considering that Article 24-7 authorises the Public Prosecutor, when requesting an interruption, to arrange for the summons or appearance of a minor before the Juvenile Court or the Correctional Court for Minors according to the procedures provided for under Articles 8-3 and 14-2 of the Ordinance of 2 February 1945 notwithstanding the insufficient nature of the information concerning the minor's personality; that in such cases, the trial court is required to defer the issue of the measure, penalty or sentence, in particular in order to enable supplementary investigations concerning the minor's personality to be carried out; that the contested provisions do not constitute an exception to the conditions which permit the procedures provided for under Articles 8-3 and 14-2 to be applied; that, under these circumstances, there is no violation of the fundamental principle in relation to criminal justice for minors; that, accordingly, Article 24-7 of the Ordinance of 2 February 1945 must be upheld as constitutional;
     
    . With respect to the Correctional Court for Minors:
     
49. Considering that Article 49 of the Law introduces Chapter IIIa into the Ordinance of 2 February 1945, entitled: "The Correctional Court for Minors"; that this court has jurisdiction to try minors of more than sixteen years of age who are prosecuted for one or more misdemeanours that is committed by a reoffending minor punished by a term of imprisonment equal to or greater than three years; that it also has jurisdiction to try the co-authors and accomplices of these minors if they are adults; that it is comprised of three judges and chaired by a judge from the Juvenile Court; that it rules according to the procedure provided for the Juvenile Courts; that pursuant to Article 24-2, the Correctional Court for Minors may be seized:
    "1. By referral order from the Juvenile Court or the examining judge pursuant to Articles 8 and 9;
    "2. Subject to the conditions and according to the procedures provided for under Article 8-3;
    "3. Subject to the conditions and according to the procedures provided for under Article 14-2, except subparagraph VI";
     
50. Considering that, according to the applicants, the establishment of this jurisdiction violates the fundamental principle recognised under the Law of the Republic in relation to criminal justice for minors;
     
51. Considering, first, that the Correctional Court for Minors is composed of three judges from the Regional Court as well as, in relation to the misdemeanours referred to under Article 399-2 of the Code of Criminal Procedure, of two citizen associate judges; that, whilst it is chaired by a judge from the Juvenile Court, it is comprised of a majority of persons who do not have any special expertise over questions relating to juveniles; that the fundamental principle recognised under the laws of the Republic in relation to criminal justice for minors does not in itself preclude the prosecution of minors from being limited to a court comprised of three judges or three judges and two associate judges in which only the president is a judge with specialist expertise in questions relating to juveniles; that however, such a court cannot be regarded as a specialist court for the purposes of this fundamental principle; that, accordingly, this principle requires that the Correctional Court for Minors be seized according to procedures that are appropriate to seek the educational and moral recovery of minors;
     
52. Considering that subparagraphs 2 and 3 of Article 24-2 provide that the Correctional Court for Minors may be seized according to the procedures provided for under Articles 8-3 and 14-2 of the Ordinance of 2 February 1945 which enable the summons or appearance of the minor before the trial court to be arranged without prior investigation; that, in breaching the requirements contained in the fundamental principles in relation to criminal justice for minors, these provisions result in a situation in which the minors are not tried either by a specialist court or according to appropriate procedures; that, accordingly, subparagraphs 2 and 3 of Article 24-2 must be ruled unconstitutional;
     
53. Considering, secondly, that the Constitutional Council stated in recital 11 in the preamble to the aforementioned decision no. 2011-147 QPC of 8 July 2011 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 contested provisions violate the principle of impartiality of the courts in a manner that is unconstitutional; that, therefore, Article L. 251-3 of the Code of Judicial Organisation is unconstitutional"; that, for the same reasons, there are grounds to rule unconstitutional the second subparagraph of Article 24-1 of the Ordinance of 2 February 1945 which provides that the Correctional Court for Minors shall be chaired by a judge from the Juvenile Court; that, for the same reasons as those specified in recital 12 of the preamble to the decision of 8 July 2011, there are grounds to defer the date from which this ruling of unconstitutionality shall take effect until 1 January 2013;
     
54. Considering that there are no grounds for the Constitutional Council to raise any question of compatibility with the Constitution ex officio,
     
    HELD:
     
    Article 1 - The following provisions of the Law on the participation of citizens in the functioning of criminal justice and the sentencing of minors are hereby ruled unconstitutional:

• in Article 5, the fourth and fifth subparagraphs of Article 399-2 of the Code of Criminal Procedure;
• in Article 38, the second sentence of Article 10-3 of Ordinance no. 45-174 of 2 February 1945 on juvenile delinquency;
• in Article 49, the second and third subparagraphs of Article 24-2 of Ordinance no. 45-174 of 2 February 1945 on juvenile delinquency.
   
  Article 2.- In Article 49 of the same Law, the second subparagraph of Article 24-1 of Ordinance no. 45-174 of 2 February 1945 on juvenile delinquency is ruled unconstitutional with effect from 1 January 2013, and subject to the conditions specified under recital 53.
   
  Article 3.- Subject to the reservation specified in recital 16, Article 15 of the same Law is ruled constitutional.
   
  Article 4.- The following provisions of the same Law are hereby upheld as constitutional:
• Article 1;
• in Article 5, the remainder of Article 399-2 of the Code of Criminal Procedure;
• in Article 12, Article 365-1 of the Code of Criminal Procedure;
• in Article 13, Article 359 of the Code of Criminal Procedure;
• Article 19;
• in Article 32, the last subparagraph of Article 8 of Ordinance no. 45-174 of 2 February 1945 on juvenile delinquency;
• in Article 33, Article 8-3 of Ordinance no. 45-174 of 2 February 1945 on juvenile delinquency;
• in Article 34, the last sentence of the third subparagraph of Article 9 of Ordinance no. 45-174 of 2 February 1945 on juvenile delinquency;
• in Article 49, the remainder of Article 24-2 of Ordinance no. 45-174 of 2 February 1945 on juvenile delinquency;
• in Article 50, Article 24-7 of Ordinance no. 45-174 of 2 February 1945 on juvenile delinquency;
• Article 54.
   
  Article 5.- 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 Ordinance of 7 November 1958 referred to hereinabove.
   
  Deliberated by the Constitutional Council in its session of 04 August 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Valéry GISCARD d'ESTAING, Mrs Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.