Decision no. 2016-536 QPC of 19 February 2016

On 18 January 2016 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received from the Conseil d'État (decision no. 395092 of 15 January 2016), an application for a priority preliminary ruling on the issue of constitutionality raised on behalf of the association Human Rights League by the SCP Spinosi et Sureau, Attorney at the Conseil d'État and the Cour de Cassation, regarding the conformity of paragraph I of Article 11 of Law no. 55-385 of 3 April 1955 on the state of emergency "as in force following the enactment of the 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. 2016-536 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 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 association by the SCP Spinosi et Sureau, registered on 26 January and 1 February 2016;

• Having regard to the observations of the Prime Minister, registered on 26 January and 1 February 2016;

• Having regard to the observations in intervention filed on behalf of Mr Julien G. by the SCP Xavier Iochum and Vincent Guiso Esq., Attorneys at the Metz bar, registered on 20 January and 1 February 2016;

Having regard to the observations in intervention filed on behalf of Ms Jeanne F., Mr Roch J., Ms Fantine V.-P., Ms Anna L., Mr Jamel L., Ms Laure P., Ms Héloïse C., Mr Renaud M. de B., Ms Cynthia Kolsin D., Mr Richard R., Mr José-Xavier M., Mr Pierre V., Mr Romain T. and Mr Mathieu B. by Alice Becker Esq., Raphaël Kempf Esq. and Marie Roch Esq., Attorneys at the Paris bar, registered on 26 January 2016;
Having regard to the documents produced and appended to the case file;

Having heard Patrice Spinosi Esq., Attorney at the Conseil d'Etat and the Cour de Cassation on behalf of the applicant association, Mr Guiso Esq. on behalf of Mr Julien G., Mr Becker Esq. and Mr Kempf Esq. on behalf of Ms Jeanne F. and others, and Mr Thierry-Xavier Girardot, appointed by the Prime Minister, at the public hearing of 11 February 2016;

Having heard the Rapporteur;

1. Considering that pursuant to paragraph I of Article 11 of the aforementioned Law of 3 April 1955 as in force following the enactment of the aforementioned Law of 20 November 2015: "A decree declaring or a law extending a state of emergency may by express provision vest the administrative authorities referred to in Article 8 with the power to order searches at any location, including a private residence, during daytime or night hours, except in a location dedicated to the exercise of a parliamentary mandate or the professional activity of a lawyer, judge or journalist if there is serious reason to believe that this location is frequented by a person whose conduct constitutes a threat for security and public order.
   "The decision ordering a search shall state the location and the time of the search. The Public Prosecutor with territorial jurisdiction shall be informed of this decision without delay. The search shall be carried out in the presence of an officer from the investigating police with territorial jurisdiction. It may only be carried out in the presence of the occupant or, in his or her absence, in the presence of his or her representative or of two witnesses.
   "Access may be gained using a computer system or terminal equipment present at the locations where the search is carried out to data stored on the said system or equipment or in another computer system or terminal equipment, provided that these data are accessible from the initial system or available to the initial system. The data that it is possible to access under the conditions specified in this Article may be copied onto any medium.
   "A record shall be made of the search, which shall be communicated to the Public Prosecutor without delay.
   "If an offence is ascertained, the officer from the investigating police shall document it in a report, shall implement any seizure that is appropriate and give notice thereof to the Public Prosecutor without delay.
   "This paragraph (I) shall only apply in the areas stipulated in the decree provided for under Article 2";

2. Considering that, according to the applicant association and the interveners, by permitting the administrative authority to carry out a search in a private residence during a state of emergency, the contested provisions violate the constitutional requirement of judicial control of measures affecting the inviolability of the home, which is protected by the requirement of individual freedom and the right to respect for private life; that they also assert that the contested provisions cause a disproportionate violation of individual freedom, the right to respect for private life and the right to effective judicial relief; that the legislator acted in excess of its competence under conditions that affect the rights and freedoms mentioned above; that finally, according to Mr Julien G., the contested provisions violate the principle of the separation of powers as they permit an administrative authority to carry out operations pertaining to the investigative police that may result in punitive measures;

• The provisions of subparagraphs one, two, four to six and the first phrase of subparagraph three of paragraph i of article 11:

. With regard to the objection asserting a violation of the requirements laid down in Article 66 of the Constitution:

3. Considering that pursuant to Article 66 of the Constitution: “No one shall be arbitrarily detained. - The Judicial Authority, guardian of individual freedom, 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;

4. Considering that the provisions of the first subparagraph of paragraph I of Article 11 of the Law of 3 April 1955 allow the administrative authority, following the declaration of a state of emergency and where the decree declaring or a law extending the state of emergency expressly so provides, "to order searches at any location, including a private residence, during daytime or night hours, except in a location dedicated to the exercise of a parliamentary mandate or the professional activity of a lawyer, judge or journalist if there is serious reason to believe that this location is frequented by a person whose conduct constitutes a threat for security and public order"; that the provisions of the first phrase of subparagraph three also enable the administrative authority, from the location of the search, to access data stored in a computer system; that on the other hand even if such searches, which may be carried out by the administrative police only, occur in a private residence, they cannot have any goal other than maintaining public order and preventing crime; that on the other hand, these measures do not affect individual freedom pursuant to Article 66 of the Constitution; that accordingly, these administrative searches need not be placed under the direction and control of the judicial authorities; that the objection alleging a violation of Article 66 of the Constitution must be rejected;

. The objections alleging a violation of the requirements resulting from Articles 2 and 16 of the 1789 Declaration and Article 34 of the Constitution:

5. 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 right to respect for private life, including in particular the inviolability of the home, protected under Article 2 of the 1789 Declaration of the Rights of Man and the Citizen;

6. Considering that pursuant to Article 16 of the 1789 Declaration: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; that according to this provision no substantial breaches may be made of the right of interested parties to secure effective relief before a court;

7. 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";

8. Considering in the first place that the measures provided for under the first subparagraph and the first phrase of the third subparagraph of paragraph I of Article 11 of the Law of 3 April 1955 can only be ordered if a state of emergency has been declared and only for the locations situated in the area covered by the state of emergency; that pursuant to Article 1 of the Law of 3 April 1955, a state of emergency may 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";

9. Considering secondly that a decision ordering a search on the basis of the contested provisions must specify the location and time; that the Public Prosecutor is informed of this decision without delay; that the search is carried out in the presence of an officer from the investigating police; that it may only be carried out in the presence of the occupant or, in his or her absence, in the presence of his or her representative or of two witnesses; that a record is made of the search, which must be communicated to the Public Prosecutor without delay;

10. Considering thirdly that a decision ordering a search on the basis of the contested provision and the conditions governing its implementation must be justified by and proportionate with the reasons that gave cause for the measure within the specific circumstances that resulted in the declaration of a state of emergency; that in particular, a search carried out during the night in a private residence must be justified on the grounds of urgency or that it is impossible to carry it out during the daytime; that the administrative courts are responsible for ensuring that this measure, which must be supported by reasons, is suited to, necessary for and proportionate with the aim pursued by it;

11. Considering fourthly that whilst the forms of appeal provided for against a decision ordering a search on the basis of the contested provisions can only be activated after the measure has been implemented, they enable the interested party to bring a liability claim against the state; that accordingly the persons affected are not deprived of forms of appeal, which enable the implementation of the measure under appropriate conditions to be controlled, having regard to the specific circumstances that led to the declaration of a state of emergency;

12. Considering that it follows from the above that the provisions of subparagraphs one, two and four to six and of the first phrase of subparagraph three of paragraph I of Article 11 of the Law of 3 April 1955, which are not unconstitutional on the grounds that they involve a failure to exercise powers, constituting a regime of exceptional powers the effects of which must be limited in time and space and which contribute to preventing the imminent danger or consequences with the character of a public disaster to which the country is exposed, strike a balance that is not manifestly unreasonable between the requirements of Article 2 of the 1789 Declaration and the objective of constitutional standing of safeguarding public order; that the requirements of Article 16 of the 1789 Declaration have not been violated;

13. Considering that according to all of the above, the provisions of subparagraphs one, two and four to six and of the first phrase of subparagraph three of paragraph I of Article 11 of the Law of 3 April 1955, which do not violate any other right or freedom guaranteed under the Constitution, must be ruled constitutional;

• The second phrase of the third subparagraph of paragraph i of article 11:

14. Considering that the provisions of the second phrase of the third subparagraph of paragraph I of Article 11 of the Law of 3 April 1955 enable the administrative authority to copy all computer data that it may have the possibility to access during the course of the search; that this measure is equivalent to a seizure; that neither this seizure nor the exploitation of the data thereby collected has been authorised by a court, even if the occupant of the location searched or the owner of the data objects and even though no offence has been established; that in addition data may be copied that has no link with the person whose conduct constitutes a threat for security and public order and who has frequented the location at which the search has been ordered; that in doing so, the legislator did not put in place legal guarantees capable of ensuring a reasonable balance between the objective of constitutional standing of safeguarding public order and the right to respect for private life; that accordingly, without any requirement to examine the other objections, the provisions of the second phrase of the third subparagraph of paragraph I of Article 11 of the Law of 3 April 1955, which violate Article 2 of the 1789 Declaration, must be declared unconstitutional;

15. 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;

16. Considering that the declaration that the second phrase of the third subparagraph of paragraph I of Article 11 of the Law of 3 April 1955 is unconstitutional shall take effect from the date of publication of this decision; that it may be invoked in all proceedings pending on that date that have not been definitively resolved,

HELD:

Article 1.- The provisions of the second phrase of the third subparagraph of paragraph I of Article 11 of the Law of 3 April 1955 are unconstitutional.

Article 2.- The remaining part of paragraph I of this Article is constitutional.

Article 3.- The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions set down by recital 16.

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 Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 18 February 2016, 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.

Announced on 19 February 2016.