Decision no. 2017-635 QPC of 9 June 2017

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 29 March 2017 by the Conseil d'État (Decision no. 407230 of that same date), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for Mr. Émile L. by Mr. Raphaël Kempf, Esq. and Ms. Aïnoha Pascual, Esq., attorneys admitted to the Paris bar. It was recorded by the General Secretariat of the Constitutional Council under number 2017-635 QPC. It concerns the conformity of the rights and freedoms guaranteed by the Constitution under Section 3° of Article 5 of Law no. 55-385 of 3 April 1955 relating to states of emergency.

In light of the following texts:

• the Constitution;
• Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
• Law no. 55-385 of 3 April 1955 on states of emergency;
• 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 put forth for the applicant by Mr. Kempf and Ms. Pascual, registered on 20 April 2017;
• the observations of the Prime Minister, registered on 20 April 2017;
• the observations in response presented for the association the Ligue des Droits de l'Homme [League of Human Rights] by the firm Spinosi and Sureau, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 20 April and 5 May 2017;
• the documents produced and appended to the case file;

Having heard Mr. Kempf and Ms. Pascual, Esqs., for the applicant, Mr. François Sureau, 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 30 May 2017;

And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:

1. Article 5 of the Law of 3 April 1955 mentioned herein above establishes that declaring a state of emergency grants certain powers to the prefects of the departments in which the state of emergency is declared. According to Section 3° of this Article 5, the prefect has the power:
   “To refuse entry or stay in all or part of the department to any person seeking to obstruct, in any manner whatsoever, public policy”.

2. The applicant and the intervening association contest these contested provisions insofar as they infringe on the freedom to come and go as well as the freedom of expression and communication and the right of collective expression of ideas and opinions, from which comes the liberty of demonstration. According to them, firstly, there is infringement on these freedoms by the measure of refusing entry or stay, insofar as an “obstruction of public policy” does not necessarily constitute a threat to public policy, justified by the constitutional objective of safeguarding against attacks on public safety. Secondly, implementing these refusals does not include sufficient guarantees, insofar as the legislature has not set a time frame for this and has not excluded the residence of the person in question in the territory that falls within the scope of the refusal. According to the applicant, the contested provisions also infringe on the right of respect for private life and, according to the intervening association, on the “freedom to work” and the right to live a normal family life.

• On the merits:

3. 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 right to come and go, making up the personal freedoms protected under Articles 2 and 4 of the Declaration of the Rights of Man and the Citizen of 1789 and the right to lead a normal family life established in the tenth Subparagraph of the Preamble to the Constitution of 27 October 1946.

4. The measure refusing entry and stay, as established in the contested provisions, may not be ordered by the prefect of the department unless a state of emergency has been declared and only for the areas located in the zones that it covers. This state of emergency may 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, present a public disaster".

5. However, firstly, by establishing that a refusal of entry and stay may be ordered against any person “seeking to obstruct, in any manner whatsoever, public policy” the legislature allowed such a measure to be enacted without it being necessarily justified under the goal of the prevention of an attack on public safety.

6. Secondly, the legislature did not submit this refusal of entry and stay, the scope of which could include the residence or workplace of the person in question, to any condition and did not include any guarantee.

7. Therefore, the legislature did not ensure harmonisation between, on the one hand, the constitutional objective of safeguarding against attacks on public safety, and on the other, the freedom to come and go and to lead a normal family life. As a result, without the need to examine other grievances, Section 3° of Article 5 of the Law of 3 April 1955 should be declared unconstitutional.

• On the Effects of the Ruling of Unconstitutionality:

8. According to the second Subparagraph 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 reserve for the latter the power both to set the date of repeal and to postpone its effects as well as to reconsider the effects that the provision may produce before this declaration takes effect.

9. The immediate repeal of Section 3° of Article 5 of the Law of 3 April 1955 would lead to obviously excessive consequences. In order to allow the legislature to rectify this unconstitutionality, the date of this repeal should be deferred to 15 July 2017.

THE CONSTITUTIONAL COUNCIL RULES:

Article 1. Article 1.- Section 3° of Article 5 of Law no. 55-385 of 3 April 1955 on the state of emergency is unconstitutional.

Article 2. - The declaration of unconstitutionality of Article 1 shall take effect under the conditions set out in paragraph 9 of this decision.

Article 3. - 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 08 June 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 9 June 2017.