Decision no. 2017-645 QPC of 21 July 2017

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 17 May 2017 by the Cour de Cassation (Criminal Division, Decision no. 1457 of 11 May 2017), under the conditions set out in Article 61-1 of the Constitution. This question was raised on behalf of Mr. Gérard B. by Mr. Didier Bouthors, Esq. Attorney at the Conseil d'État and the Cour de Cassation. It was registered by the General Secretariat of the Constitutional Council under number 2017-645 QPC. It relates to compliance with the rights and freedoms that the Constitution guarantees of the third Subparagraph of Article 306 of the Code of Criminal Procedure in its drafting resulting in Law number 2016-444 of 13 April 2016 relating to the fight against prostitution and support for prostituted persons.

In light of the following texts:

• the Constitution;
• Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
• the Code of Criminal Procedure;
• Law no. 2016-444 of 13 April 2016 seeking to reinforce the fight against prostitution and to support prostituted persons.
• 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. Bouthors, registered on 6 February and 23 June 2017;

• the observations of the Prime Minister, registered on 08 June 2017;

• the documents produced and appended to the case file;

Having heard Mr. Bouthors on behalf of the applicant and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 4 July 2017;
And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:

1. The second paragraph of Article 306 of the Code of Criminal Procedure, in its drafting resulting in the Law of 13 April 2016 mentioned herein above, states:
   “During prosecution for charges of rape or torture and barbarous acts carried out during sexual assault, trafficking in persons, or aggravated pimping offences, punishable under Articles 225-7 to 225-9 of the Criminal Code, closed-door proceedings are authorised if the civil party victim or one of the civil party victims requests it; in other cases, closed-door proceedings may only be ordered if the civil party victim or one of the civil party victims is not opposed to it”.

2. According to the applicant, these provisions infringe on the right to a fair trial. In fact, they allow the civil party to obtain, legally and no matter the circumstances, closed-door proceedings for the judgement of certain crimes before the Criminal Court, the legislature having infringed on the principle of the public nature of proceedings. Furthermore, the applicant claims that these provisions are contrary to the principle of equality before the law, insofar as they upset the balance between the civil party, the accused, and the public prosecutor. Finally, the applicant claims that the contested provisions, which characterise the civil party as a “victim” before any final judgement of the accused, runs counter to the presumption of innocence.

3. Consequently, the priority matter of constitutionality focuses on the terms “closed-door proceedings are authorised if the civil party victim or one of the civil party victims requests it; in other cases,” as established in the third Subparagraph of Article 306 of the Code of Criminal Procedure.

4. Firstly, it follows from Articles 6, 8, 9, and 16 of the Declaration of the Rights of Man and the Citizen of 1789 that the judgement of a criminal case must be carried out before a public audience unless specific circumstances, for the reason of public interest, necessitate closed-door proceedings.

5. The contested provisions allow a “civil party victim” to obtain the right of closed-door proceedings before the Criminal Court for the judgement of the crimes of rape or torture and barbarous acts carried out during sexual assault, trafficking in persons, or aggravated pimping offences. On the one hand, by reserving this option to only one civil party, the legislature sought to ensure protection of the private life of the victims of certain criminal acts and avoid, because this protection may be lacking, this party failing to report these acts. In so doing, it sought the goal of the public interest. On the other hand, this derogation from the principle of the public nature of proceedings only applies to acts of particular seriousness, the disclosure of which during public proceedings would affect the most intimate parts of the private life of the victim. The legislature also defined the specific circumstances justifying this derogation. It follows from the foregoing that the claim of infringement on the principle of the public nature of criminal proceedings should be set aside.

6. Secondly, according to Article 6 of the 1789 Declaration, the law "must be the same for all, whether it protects or punishes". Its Article 16 establishes: “A society in which the observance of the law is not assured, nor the separation of powers defined, has no Constitution at all”. If the legislature is entitled to establish rules of procedure that differ depending on the facts, situations and persons to which they apply, it is only provided that these differences are not unjustifiably discriminatory and that equal guarantees are assured to the parties, in particular, regarding the requirement that the rights of defence be respected.

7. On the one hand, the difference in treatment instituted by the contested provisions is justified by the objective sought by the legislature established in Paragraph 5. On the other, this difference in treatment does not change the balance of the parties' rights during the hearing and does not infringe upon the respect for the rights of defence. Thus, the claim of infringement on the principle of equality before the law should be set aside.

8. Thirdly, pursuant to Article 9 of the Declaration of 1789, everyone is presumed innocent until they are declared guilty. It follows thereof that, in principle, the legislature did not seek to repressively institute the presumption of guilt.

9. The contested provisions, by referring to the “civil party victim”, indicate the civil party that declared having been subject to the acts being prosecuted. It does not deduce from this the presumption of guilt of the accused. Thus, the claim of infringement on the presumption of innocence should be set aside.

10. Consequently, the terms “closed-door proceedings are authorised if the civil party victim or one of the civil party victims requests it; in other cases,” as established in the third Subparagraph of Article 306 of the Code of Criminal Procedure, which do not infringe upon any other right or freedom that the Constitution guarantees, should be declared constitutional.

THE CONSTITUTIONAL COUNCIL RULES:

Article 1. - the terms “closed-door proceedings are authorised if the civil party victim or one of the civil party victims requests it; in other cases,” as established in the third Subparagraph of Article 306 of the Code of Criminal Procedure, in its drafting resulting in Law number 2016-444 of 13 April 2016 relating to the fight against prostitution and support for prostituted persons, is constitutional.

Article 2. - 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 20 July 2017, in attendance: Mr. Lionel JOSPIN, exercising the role of Chairman, Ms. Claire BAZY MALAURIE, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Ms. Corinne LUQUIENS, and Ms. Nicole MAESTRACCI et Mr. Michel PINAULT.

Made public on 21 July 2017.