Decision no. 2015-527 QPC of 22 December 2015

On 11 December 2015 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received from the Conseil d'État (decision no. 395009 of the same day), an application for a priority preliminary ruling on the issue of constitutionality raised on behalf of Mr Cédric D. by the SCP Garreau Bauer-Violas Feschotte-Desbois, Attorney at the Conseil d'État and the Cour de Cassation, regarding the conformity of "Article 6 of the Law of 3 April 1955 on the state of emergency as in force following the enactment of Law of 20 November 2015" with the rights and freedoms guaranteed by the Constitution, registered with the general secretariat of the Constitutional Council as no. 2015-527 QPC.

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 Law no. 55-385 of 3 April 1955 on the state of emergency;

Having regard to Law no. 2015-1501 of 20 November 2015 extending the application of Law no. 55-385 of 3 April 1955 on the state of emergency and enhancing the efficacy of its provisions;

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 filed on behalf of the applicant by the SCP Garreau Bauer-Violas Feschotte-Desbois, registered on 15 December 2015;

Having regard to the observations of the Prime Minister, registered on 15 December 2015;

Having regard to the observations in intervention filed on behalf of Mr Pierre B., Ms Soizic C., Mr Luc G., Ms Marion S., Mr Corentin V., Mr Sid Ahmed G. and Mr Fabien K. by Maitre Marie Dosé, Attorney at the Paris bar, registered on 15 and 16 December 2015;

Having regard to the observations in intervention filed on behalf of Mr Joël D. by Maitre Muriel Ruef, Attorney at the Lille Bar, registered on 15 December 2015;

Having regard to the observations in intervention on behalf of the association Ligue des Droits de l'Homme [League for Human Rights] by the SCP Spinosi et Sureau, Attorney at the Conseil d'État and the Cour de Cassation, registered on 15 and 16 December 2015;

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

Having heard Maitre Denis Garreau and Maitre Alexandre Faro, Attorney at the Paris bar, on behalf of the applicant, Maitre Dosé and Maitre Raphaël Kempf, Attorney at the Paris bar on behalf of Mr Pierre B., Ms Soizic C., Mr Luc G., Ms Marion S., Mr Corentin V., Mr Sid Ahmed G. and Mr Fabien K., Maitre Ruef on behalf of Mr Joël D., Maitre Patrice Spinosi for the association Ligue des Droits de l'Homme and Mr Thierry-Xavier Girardot, designated by the Prime Minister, at the public hearing of 17 December 2015;

Having heard the Rapporteur;

1. Considering that pursuant to Article 6 of the aforementioned Law of 3 April 1955 as in force following the enactment of the aforementioned Law of 20 November 2015: "The Minister of the Interior may order the detention under house arrest, at a location designated by the Minister, of any person resident in the area specified by the decree referred to in Article 2 in respect of whom there are serious grounds to consider that his or her behaviour may constitute a threat for public security and order within the geographical districts referred to also in Article 2. The Minister of the Interior may instruct that the person be taken to the location of house arrest by the police services or the gendarmerie units.
   "The person referred to in the first subparagraph of this Article may also be required to remain in the place of residence determined by the Minister of the Interior during specific hours set by the latter, up to a maximum of twelve hours out of every twenty-four hours.
   "The placement under house arrest must enable those who are subject to the order to reside within a built-up area or in close proximity to a built-up area.
   "Placement under house arrest may not under any circumstances have the effect of creating camps at which the persons mentioned in the first subparagraph are detained.
   "The administrative authorities must take all steps in order to ensure the maintenance of the persons held under house arrest as well as that of their families.
   "The Minister of the Interior may impose on the person placed under house arrest:
   "1. The obligation to report regularly to the police services or gendarmerie units at intervals determined by the Minister, up to a limit of three times per day, and shall specify whether this obligation also applies on Sundays and public holidays or non-working days;
   "2. The surrender to these services of his or her passport or any document establishing his or her identity. The individual shall be provided in exchange with a receipt, which shall constitute a valid identity document for the purposes of Article 1 of Law no. 2012-410 of 27 March 2012 on the protection of identity, which shall mention the date of seizure and the arrangements governing the return of the document seized.
   "The person obliged to reside at the location specified for him or her in accordance with the first subparagraph of this Article may be prohibited by the Minister of the Interior from associating directly or indirectly with certain persons specified by name, in respect of whom there are serious grounds to consider that their behaviour may constitute a threat for public security and order. This prohibition shall be revoked in the event that it is no longer necessary.
   "If the person placed under house arrest has received a custodial sentence following conviction of a crime classified as an act of terrorism or of an offence classified in the same manner that is punished by ten years of imprisonment and enforcement of his or her sentence finished within the last eight years, the Minister of the Interior may also order that he or she be electronically tagged. Such a tagging order shall be issued with the agreement of the person concerned, which shall be received in writing. For the full duration of the tagging order, the person concerned shall be required to wear a technical device enabling his or her location to be determined remotely throughout the national territory at any time. He or she may not be subjected either to the obligation to report regularly to the police services or gendarmerie units or to the obligation to remain in the place of residence referred to in the second subparagraph. The Minister of the Interior may order the cessation of electronic tagging at any time, in particular in the event of the breach by the individual tagged of the conditions associated with his or her placing under house arrest or tagging or in the event of a technical malfunction of the remote tracking device";

2. Considering that, according to the applicant, the association Ligue des Droits de l'Homme and Mr Joël D., by imposing an obligation to refrain from leaving a specific location and, as the case may be, by requiring the individual thereby placed under house arrest to remain in a place of residence and to report several times each day to the police or gendarmerie services, the contested provisions encroach in a manner that is unconstitutional on freedom of movement, the right to lead a normal private and family life as well as freedom of assembly and demonstration; that in failing to define the regime of house arrest with sufficient precision, the legislator acted in excess of its competence in a manner that affected these rights and freedoms guaranteed under the Constitution; that, since placing under house arrest is not subject to review by the courts, the contested provisions violate the requirements laid down in Article 66 of the Constitution; that according to Mr Pierre B., Ms Soizic C., Mr Luc G., Ms Marion S., Mr Corentin V., Mr Sid Ahmed G. and Mr Fabien K., the contested provisions violate the right to a fair trial, the rights of the defence and the principle of a fair hearing;

3. Considering that the application for a priority preliminary ruling on the issue of constitutionality concerns the first nine subparagraphs of Article 6 of the Law of 3 April 1955;

• THE OBJECTION ALLEGING THE VIOLATION OF THE RIGHTS GUARANTEED BY ARTICLE 66 OF THE CONSTITUTION:

4. Considering 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 under the conditions laid down in law"; that individual freedom, the protection of which is a matter for the judicial authority, may not be restricted to an unnecessary extent; that the restrictions imposed on the exercise of this freedom must be necessary, appropriate and proportional having regard to the objective pursued;

5. Considering in the first place that the contested provisions enable the Minister of the Interior, in the event that a state of emergency has been declared, to "order the detention under house arrest, at a location designated by the Minister, of any person resident in the area specified" by the decree declaring the state of emergency; that such placement under house arrest, which can only be ordered in relation to a person for whom "there are serious grounds to consider that his or her behaviour may constitute a threat for public security and order", is a measure relating solely to the matter of administrative policing, the sole aim of which must be to preserve public order and to prevent the commission of crime; that such placing under house arrest "must enable those who are subject to order to reside within a built-up area or in close proximity to a built-up area"; that it may not under any circumstances "have the effect of creating camps at which the persons ... [placed under house arrest] are detained"; that, both due to their object and due to their scope, these provisions do not entail a deprivation of individual freedom that is relevant for Article 66 of the Constitution;

6. Considering secondly that, in relation to a house arrest order issued by the Minister of the Interior, the individual "may also be required to remain in the place of residence determined by the Minister of the Interior during specific hours set by the latter, up to a maximum of twelve hours out of every twenty-four hours"; that the maximum period of time during which an individual placed under house arrest is required to remain at home, which is set at twelve hours per day, cannot be extended, otherwise the placing under house arrest would then be regarded as a measure restricting freedom, and accordingly subject to the requirements laid down by Article 66 of the Constitution;

7. Considering that it results from the above that the objection alleging the violation of Article 66 of the Constitution must be rejected;

• THE OBJECTIONS ALLEGING THE VIOLATION OF THE RIGHTS AND FREEDOMS GUARANTEED BY ARTICLES 2 AND 4 OF THE 1789 DECLARATION AND ARTICLE 34 OF THE CONSTITUTION:

8. Considering that the Constitution does not exclude the possibility that the legislator may establish a regime to govern the state of emergency; that within this context, it falls to it to ensure that a balance is struck between, on the one hand, the prevention of public order offences and, on the other hand, the respect for the rights and freedoms granted to all persons resident in the Republic; that these rights and freedoms include the freedom of movement, comprised of the individual freedom protected by Articles 2 and 4 of the 1789 Declaration of the Rights of Man and the Citizen;

9. Considering that the fact that the legislator acted in excess of its own powers may only be invoked in relation to an application for a priority preliminary ruling on the issue of constitutionality in the event that this breach itself impinges upon a right or freedom guaranteed by the Constitution; that pursuant to Article 34 of the Constitution: "Statutes shall determine the rules concerning ... the fundamental guarantees granted to citizens for the exercise of their civil liberties";

10. Considering that the contested provisions enable the administrative authorities, when ordering that a person be placed under house arrest, to associate that measure with a requirement to remain within a specific place of residence during specific hours that may not exceed twelve hours out of every twenty-four hours, to require the person placed under house arrest to report to the police services or gendarmerie units up to three times per day, to require him or her to surrender his or her passport or any other identity document to these services, to prevent him or her from associating directly or indirectly with certain persons, in respect of whom there are serious grounds to consider that their behaviour may constitute a threat for public security and order; that these provisions thus violate freedom of movement;

11. Considering in the first place that placement under house arrest can only be ordered if a state of emergency has been declared; that pursuant to Article 1 of the Law of 3 April 1955, this can only be declared "in situations involving imminent danger resulting from serious breaches of public order" or "in circumstances which, due to their nature and seriousness, have the character of public disaster"; that only a person resident in the area covered by the state of emergency in relation to whom "there are serious grounds to consider that his or her behaviour may constitute a threat for public security and order" may be placed under house arrest;

12. Considering secondly that the order placing a person under house arrest, its duration, the conditions governing its application and the supplementary obligations with which it may be associated must be justified by and proportionate with the reasons that motivated the measure under the particular circumstances that led to the declaration of a state of emergency; that the administrative courts are charged with ensuring that such a measure is suitable, necessary and proportionate with the goal pursued;

13. Considering thirdly that, pursuant to Article 14 of the Law of 3 April 1955, an order placing a person under house arrest adopted in accordance with this Law will cease to have effect at the latest at the time when the state of emergency ends; that a state of emergency, which may be declared by decree adopted in the Council of Ministers, must after a period of twelve days be extended by a Law which sets its duration; that the duration must not be excessive having regard to the imminent danger or to the public disaster that led to the declaration of a state of emergency; that if the legislator extends the state of emergency by a new Law, any measures placing persons under house arrest taken previously cannot be extended without being renewed;

14. Considering that it follows from the above that the contested provisions, which are not unconstitutional on the grounds that they involve a failure to exercise powers, do not cause a disproportionate violation to the freedom of movement;

• THE OTHER OBJECTIONS:

15. Considering that the contested provisions do not deprive the individuals placed under house arrest of the right to dispute this measure before the administrative courts, including by referral; that it falls to the administrative courts to assess, having regard to the matters debated by the parties before it, whether there are serious reasons enabling it to be concluded that the conduct of the person placed under house arrest constitutes a threat for public security and order; that, accordingly, the requirements of Article 16 of the 1789 Declaration have not been violated;

16. Considering that, for the reasons mentioned in recitals 11 to 13, the contested provisions do not violate either the right to respect for private life or the right to lead a normal family life;

17. Considering that the provisions of the first nine subparagraphs of Article 6 of the Law of 3 April 1955, which do not violate freedom of expression and communication or any other right or freedom guaranteed under the Constitution, must be ruled constitutional,

HELD:

Article 1.- The first nine subparagraphs of Article 6 of Law no. 55-385 of 3 April 1955 on the state of emergency are constitutional.

Article 2.- 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 22 December 2015, sat on by: Mr Jean-Louis DEBRÉ, President, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Renaud DENOIX de SAINT MARC, Mr Jean-Jacques HYEST, Mr Lionel JOSPIN and Ms Nicole MAESTRACCI.