Decision no. 2017-624 QPC of 16 March 2017

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 20 January 2017 by the Conseil d'État (Decision no. 406614 of 16 January 2017), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for Mr. Sofiyan I. by Mr. Bruno Vinay, Esq., attorney admitted to the Seine-Saint-Denis bar. It was registered by the General Secretariat of the Constitutional Council under number 2017-624 QPC. It relates to compliance with the rights and freedoms that the Constitution guarantees in the eleventh through the fourteenth Subparagraphs of Article 6 of Law number 55-385 of 3 April 1955 relating to states of emergency, in its drafting resulting in Law number 2016-1767 of 19 December 2016, extending the enforcement of Law number 55-385 of 3 April 1955 relating to states of emergency and Paragraph II of Article 2 of the same Law of 19 December 2016.

In light of the following texts:

• the Constitution;
• Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Organic Law on the Constitutional Council;
• the Code of Administrative Justice;
• Law no. 55-385 of 3 April 1955 on states of emergency;
• 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;
• Law no. 2016-1767 of 19 December 2016 extending the application of Law no. 55-385 of 3 April 1955 on the state of emergency;
• Decision number 2015-527 QPC of the Constitutional Council of 22 December 2015;
• the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;

In light of the following items:

• the observations filed on behalf of the applicant by Mr. Vinay Esq., registered on 3 February and 10 February 2017;
• the observations presented by the Prime Minister, registered on 3 February 2017;
• the observations in response presented for the association the Ligue des Droits de l'Homme [League of Human Rights] by the firm Spinosi et Sureau, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 3 February and 10 February 2017;
• the letter of 22 February 2017 by which the Constitutional Council submitted to the parties an objection that it raised;
• the observations in response filed on behalf of the applicant by Mr. Vinay Esq., registered on 1 March 2017;
• the observations in response filed by the Prime Minister, registered on 1 March 2017;
• the observations in response presented for the association La Ligue des Droits de l'Homme by the firm Spinosi et Sureau, registered on 1 March 2017;
• the documents produced and attached to the case file;

Having heard Mr. Vinay, Esq. for the applicant, Mr. Patrice Spinosi, Esq., attorney at the Conseil d'État and the Cour de cassation, for the intervening party, and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 7 March 2017;

And having heard the Rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED ON THE FOLLOWING:

1. Article 6 of the Law of 3 April 1955 mentioned herein above, in its drafting resulting from the Law of 19 December 2016 mentioned herein above, determines the conditions under which the Minister of the Interior may keep individuals under house arrest during a state of emergency. The eleventh to the fourteenth Subparagraphs of this Article establish:
   "The decision regarding house arrest of an individual must be renewed after a state of emergency period is extended for it to continue to remain in effect.
   "From the time the state of emergency is declared and for its entire time span, the same individual may not be placed under house arrest for a total time period lasting over twelve months.
   "The Minister of the Interior may however request of the judge sitting for urgent matters for the Conseil d'État to authorise extending the house arrest beyond the time period mentioned in the twelfth Subparagraph. The request must be addressed at the earliest fifteen days before this time period expires. The judge sitting for urgent matters shall decide in the manner specified in Book V of the Code of Administrative Justice and within a time frame of forty-eight hours from the time the request is entered, in light of elements produced by the administrative authority showing serious reasons to think that the behaviour of the individual constitutes a threat to security and the public order. The extension authorised by this judge may not exceed a term a three months. The administrative authority may, at any time, put an end to the house arrest or reduce the obligations resulting from it under the provisions of this Article.
   "The request mentioned in the penultimate Subparagraph may be renewed under the same conditions".

2. Paragraph II of Article 2 of the Law of 19 December 2016 states:
   "By derogating from the four last Subparagraphs of Article 6 of Law number 55-385 of 3 April 1955 relating to states of emergency, any person who, within a time frame of ninety days from the date this Law entered into force, is placed under house arrest for longer than twelve months on the bases of the state of emergency declared by Decree number 2015-1475 of 14 November 2015 in application of Law number 55-385 of 3 April 1955 and Decree number 2015-1493 of 18 November 2015 in overseas application of Law number 55-385 of 3 April 1955, may be subject to this house arrest being renewed if there are serious reasons to think that his or her behaviour constitutes a threat to security and public order This new house arrest may not exceed a time period of ninety days. Within this time period, if the Minister of the Interior wishes to extend the house arrest, it must ask the Conseil d'État to decide on the basis of the last four Subparagraphs of Article 6 of the aforementioned Law number 55-385 of 3 April 1955".

3. The applicant and the intervening party claim that the contested provisions are contrary to the freedom to come and go. First of all, they allow house arrest issued under a state of emergency to be extended beyond twelve months. Secondly, they do not subject the extension of such house arrest to sufficiently restrictive conditions. These provisions also infringe on Article 66 of the Constitution in that they allow an administrative authority to place an individual under house arrest for longer than twelve months, which entails depriving this individual of freedom.

4. The Constitutional Council raises the claim that by establishing that the decision to extend house arrest beyond twelve months be made by authorisation of a judge sitting for urgent matters of the Conseil d'État, while contesting this decision is subject to legal evaluation by the Conseil d'État, the contested provisions infringe on Article 16 of the Declaration of the Rights of Man and the Citizen of 1789 which specifically guarantees the right to effective legal remedy.

. Regarding the claim of infringement on the rights guaranteed by Article 66 of the Constitution:

5. 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 by law”. Individual freedom, the protection of which is entrusted to the judicial authorities, cannot be impaired to an extent that is unnecessarily strict. Infringement on this freedom must be appropriate, necessary and proportionate to the objectives sought.

6. Pursuant to the nine first Subparagraphs of Article 6 of the Law of 3 April 1955, in its drafting resulting from the Law of 20 November 2015 mentioned herein above, the Minister of the Interior may, when a state of emergency has been declared, "declare house arrest, in a set location, of any individual residing in the set zone" by the Decree declaring the state of emergency. In the framework of this house arrest, 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." In its Decision number 2015-527 QPC of 22 December 2015 mentioned herein above, the Constitutional Council declared these nine Subparagraphs of Article 6 constitutional. It decided that both in their objective and in their scope, these provisions do not constitute a deprivation of individual freedom as described in Article 66 of the Constitution. However, it also decided that the specific maximum number of hours of the requirement to remain in the residence under a house arrest, set at twelve hours per day, may not be lengthened without the house arrest being seen as a measure of depriving one of his or her liberty, therefore subject to the requirements of Article 66 of the Constitution.

7. The contested provisions establish that the measure of house arrest issued under a state of emergency may, under certain conditions, be extended beyond the total time frame of twelve months, for a term of three months. No limit was placed on the number of renewals of this measure by the legislature. The act of prolonging the time of a house arrest issued under the conditions established by Article 6 of the Law of 3 April 1955 however does not have the effect of modifying its nature and of allowing it to be characterised as a measure to deprive liberty. The complaint pertaining to the violation of Article 66 of the Constitution should thus be set aside. . Regarding the claim of infringement of Article 16 of the 1789 Declaration:

8. 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”. This provision guarantees that the individual in question may exercise the right to effective legal remedy. The principles of independence and impartiality are not dissociable from the exercise of judicial roles.

9. The thirteenth Subparagraph of Article 6 of the Law of 3 June 1955 establishes that the Minister of the Interior may request of the judge sitting for urgent matters of the Conseil d'État the authorisation to extend a house arrest beyond the term of twelve months. The judge shall decide in the manner specified in Book V of the Code of Administrative Justice.

10. First of all, by applying these legal rules established by the Code of Administrative Justice, the decision to extend a house arrest measure taken by the Minister of the Interior may be subject to a legal remedy regarding misuse of powers before the administrative court or decision of the judge for urgent matters of this court. The decision or ordinance issued by this court may then, depending on the case, be the object of appeal before the administrative appeals court then before the Conseil d'État or, if it pertains to an emergency injunction, an appeal before the Conseil d'État.

11. Secondly, on the one hand, based on the contested provisions, the "judge sitting for urgent matters" of the Conseil d'État is asked by the administrative authority to determine if "the serious reasons to think that the behaviour of the individual constitutes a threat to security and public order" are of such a nature to justify authorisation to renew the house arrest. To grant or refuse this authorisation, the judge is asked to decide on the justification for extending the house arrest. Given the criteria set by the legislature and the control that it has to exercise on a policy measure of this nature, the judge's decision has an equivalent scope to that which may subsequently be taken by the judge regarding the misuse of powers and the legality of the house arrest measure. On the other hand, the decision to grant or refuse this authorisation by the "judge sitting for urgent matters" of the Conseil d'État when it rules on the grounds of the contested provisions is not of a provisional nature. It follows that, when it decides on the grounds of these provisions, the "judge sitting for urgent matters" of the Conseil d'État rules in the form of a decision that exceeds the authority granted by Article L. 511-1 of the Code of Administrative Justice, under which this judge may only decide on provisional measures and is not to decide on principal.

12. It follows from the foregoing that the contested provisions allow the Conseil d'État, when deciding on disputes, to authorise by a final ruling based on the merits a house arrest measure on the legality of which it may subsequently need to rule as an appeals authority. Based on this, these provisions infringe on the principle of impartiality and the right to exercise effective legal remedy. Also, the terms "request of the judge sitting for urgent matters of the Conseil d'État the authorisation to" as appearing in the first sentence of the thirteenth Subparagraph of Article 6 of the Law of 3 April 1955, the second and third sentences of the same Subparagraph as well as the words "authorised by the judge sitting for urgent matters" appearing in the fourth sentence of this Subparagraph should be declared unconstitutional. Consequently, the last sentence of Paragraph II of Article 2 of the Law of 19 December 2016 should also be declared unconstitutional.

. Regarding the claim of infringement on the freedom to come and go:

13. The Constitution does not exclude the possibility for the legislature to lay out a regime for states of emergency. In this framework, it is its responsibility to ensure harmonisation between, on the one hand, safeguarding against attacks on public safety, and on the other hand, respecting the rights and freedoms granted to all those who live on French soil. Among these rights and freedoms is the freedom to come and go, included in the personal freedoms protected by Articles 2 and 4 of the Declaration of 1789.

14. The twelfth Subparagraph of Article 6 of the Law of 3 April 1955 establishes that a house arrest authorised by an administrative authority in the context of a state of emergency may be of a term of twelve months. It follows from the provisions not declared unconstitutional of the thirteenth and fourteenth Subparagraphs that, beyond this time frame, it may be extended for three months as a renewal by this same authority. The two first sentences of Paragraph II of Article 2 of the Law of 19 December 2016 authorise, as a transitional measure, the pronouncement of a new house arrest measure for a maximum time frame of ninety days. These provisions infringe on the liberty to come and go.

15. First of all, house arrest may not be issued or renewed unless a state of emergency is declared. This state of emergency may only be declared, pursuant to Article 1 of the Law of 3 April 1955, "in the case of imminent peril resulting from a serious attack on public safety" or "in the case of events that, by their nature or gravity, constitute a public disaster". Only an individual who resides in the zone covered by the state of emergency may be subject to such house arrest and when "there are serious reasons to think that his or her behaviour constitutes a threat to security and public order".

16. Secondly, pursuant to Article 14 of the Law of 3 April 1955, the house arrest issued under this Law shall end at the latest at the same time that the state of emergency ends. The state of emergency, declared by decree in the Council of Ministers, should, beyond a time frame of twelve days, be extended by a law that sets the time frame of it. This time frame should not be excessive in regard to any imminent peril or public disaster leading to the declaration of the state of emergency. Finally, in application of the eleventh Subparagraph of Article 6 of the Law of 3 April 1955, upon the extension of the state of emergency, the house arrest measure taken prior to this must be renewed to continue to have effect.

17. Thirdly, the time frame of a house arrest measure cannot, in principle, exceed twelve months, consecutive or not. Beyond this term, such a measure can only be renewed by time periods of three months. Furthermore, beyond twelve months, a house arrest measure cannot, without excessively infringing on the liberty to come and go, be renewed unless: first of all, the behaviour of the individual in question constitutes a particularly serious threat to security and public order; secondly, that the administrative authority produces new or complementary elements; and finally, that in examining the situation of the individual in question, the total length of time of his or her placement under house arrest, the conditions of this placement and the complementary obligations under which this measure is issued are taken into account.

18. Fourthly, the term of the house arrest measure must be justified and proportional to the reasons that motivated this measure under the particular circumstances that led to the declaration of a state of emergency. The administrative court is in charge of ensuring that this measure is appropriate, necessary and proportionate to the objectives sought.

19. Subject to the restrictions established in Paragraph 17, the contested provisions, other than those declared unconstitutional in Paragraph 12, are not contrary to the freedom to come and go. These provisions, which do not infringe on any other right or freedom guaranteed by the Constitution, should, subject to these same restrictions, be upheld as constitutional;

• On the effects of the ruling of unconstitutionality:

20. According to the second paragraph of Article 62 of the Constitution: “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 according to which the effects produced by the provision shall be liable to be challenged". In principle, the declaration of unconstitutionality should benefit the individual who brought up this priority matter, and the provision declared unconstitutional may not be applied in proceedings pending on the date of publication of the decision of the Constitutional Council. However, the provisions of Article 62 of the Constitution provide the Constitutional Council with the power 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.

21. In this case, no motive should justify a delay of its effects of unconstitutionality. This should take effect from the date of the publication of this decision.

THE CONSTITUTIONAL COUNCIL RULES:

Article 1. - The following are unconstitutional:

• the terms "request of the judge sitting for urgent matters of the Conseil d'État the authorisation to" as appearing in the first sentence of the thirteenth Subparagraph of Article 6 of Law number 55-385 of 3 April 1955 relating to states of emergency in its drafting resulting from Law number 2016-1767 of 19 December 2016, extending the enforcement of Law number 55-385 of 3 April 1955 relating to states of emergency, the second and third sentences of the same Subparagraph as well as the words "authorised by the judge sitting for urgent matters" appearing in the fourth sentence of this Subparagraph;
• the last sentence of Paragraph II of Article 2 of the Law of 19 December 2016.

Article 2. - The declaration of unconstitutionality of this Article 1 shall take effect under the conditions set out in Paragraph 21 of this Decision.

Article 3. - Subject to the restrictions established in Paragraph 17, the following are constitutional:

• the eleventh, twelfth, fourteenth Subparagraph and the other provisions of the thirteenth Subparagraph of Article 6 of Law number 55-385 of 3 April 1955 relating to states of emergency, in its drafting resulting in Law number 2016-1767 of 19 December 2016, extending the enforcement of Law number 55-385 of 3 April 1955 relating to states of emergency.
• the other provisions of Paragraph II of Article 2 of the Law of 19 December 2016.

Article 4. - This decision shall be published in the Journal official of the French Republic and notified under the conditions provided for in Article 23-11 of the Ordinance of 7 November 1958 referred to herein above.

Deliberated by the Constitutional Council in its session of 16 March 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 16 March 2017.