On 20 June 2018, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Cour de cassation (criminal division, case no. 1780 of 19 June 2018). This application was made on behalf of Medhi K. by SCP Célice, Soltner, Texidor, Périer, Attorney for the Conseil d’État and for the Cour de Cassation. It was registered by the general secretariat of the Constitutional Council under no. 2018-730 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees in Article 706-113 of the Code of Criminal Procedure.
Having regard to the following texts:
- the Constitution;
- Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
- the Code of Criminal Procedure;
- Act No. 2008-174 of 25 February 2008 relating to preventive detention and the declaration of exemption from criminal responsibility for reason of mental disorder;
- the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
Having regard to the following documents:
- the observations on behalf of the applicant by SCP Célice, Soltner, Texidor, Périer, registered on 13 July 2018;
- the observations of the Prime Minister, registered on 13 July 2018;
- the documents produced and appended to the case files;
After having heard Bertrand Périer, Attorney for the Conseil d’État and the Cour de Cassation, on behalf of the applicant, and Philippe Blanc, appointed by the Prime Minister, at the public hearing of 4 September 2018;
And after having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDED THAT:
1. The application for a priority preliminary ruling on constitutionality must be considered as relating to the provisions applicable to the legal dispute at the moment in which the application was made. Therefore, a referral to the Constitutional Council is made as provided for in Article 706-113 of the Code of Criminal Procedure, in its formulation resulting from the aforementioned Act of 25 February 2008.
2. Article 706-113 of the Code of Criminal Procedure, in this formulation, provides that:
“The district prosecutor or the investigating judge advises the guardian, as well as the guardianship judge, of the prosecution of the person in question. The same applies if the person is the subject of an alternative proceeding to a prosecution that consists of paying for the damage caused or of a mediation, a settlement or an appearance on prior admission of guilt, or if the person is heard as an assisted witness.
“The guardian can examine the documents related to the proceedings under the same conditions as provided for the person being prosecuted.
“If the person is placed in pre-trial detention, the guardian automatically has a visiting permit.
The district prosecutor or the investigating judge advises the guardian as to decisions of discharge, dropping proceedings or acquittal, exemption from criminal responsibility for reason of mental disorder, or relating to the conviction of the person concerned.
“The guardian is informed of the date of the hearing. When they are present at the hearing, they are heard by the court as a witness.”
3. According to the applicant, these provisions violate the defendant’s rights on the grounds that, in the event of police detention of an adult placed under a guardianship order, they do not oblige the judicial police officer to inform that person’s guardian, as well as the guardianship judge. The person placed under a guardianship order does not always have the discernment necessary to exercise their rights; the absence of this guarantee cannot be replaced, when they are taken into police custody, by only notifying them of their right to inform their guardian.
4. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the first section of Article 706-113 of the Code of Criminal Procedure.
- In substance:
5. As stated in Article 16 of the Declaration of Human and Civic Rights of 1789: “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.” As a result of these provisions, the respect of the defendant’s rights is guaranteed.
6. In accordance with the disputed provisions, when criminal prosecution proceedings take place against an adult placed under a guardianship order, the district prosecutor or the investigating judge must inform that person’s guardian, as well as the guardianship judge. The same applies if that adult placed under a guardianship order is the subject of an alternative proceeding to a prosecution that consists of paying for the damage caused or of a mediation, a settlement or an appearance on prior admission of guilt, or if that person is heard as an assisted witness. The guardian is then authorised to examine the documents related to the proceedings and benefits from several prerogatives that serve to help them preserve the rights of the adult placed under a guardianship order. These provisions do not apply to police detention.
7. In the event of police detention, it follows however that 3° of Article 63-1 of the Code of Criminal Procedure provides that the adult placed under a guardianship order is, like any other adult suspect, immediately informed, by a judicial police officer or, under the control of said officer, by a judicial police agent, of their right to the assistance of an attorney, their right to inform certain persons close to them and, according to the conditions of Article 63-2 of the same Code, their right to communicate with those persons. The adult placed under a guardianship order may, in this case, ask for their guardian to be informed. The investigators must then, barring insurmountable circumstances or refusal related to the requirements of the investigation, establish contact with the guardian within the three hours following the request. In this case, the third section of Article 63-3-1 of the same Code provides for the guardian to be able to designate an attorney to assist the adult placed under a guardianship order during the police detention, subject to confirmation by the latter.
8. However, neither the disputed provisions nor any other legislative provision require the police or judicial authorities to find out, at the start of police detention, if the person is under a guardianship order, and to then inform their representative of the measure to which this person is subject. As such, in the case of the adult placed under a guardianship order not asking for their guardian to be informed, that person may be unable to exercise their rights, lacking sufficient discernment or the ability to express their wishes due to mental or physical difficulty. The person may then make choices that are contrary to their interests, specifically concerning exercising their right to consult with an attorney and to be assisted by that attorney during their hearings and interactions.
9. Therefore, not providing for this, when the elements collected during a person’s police detention show that said person is under legal protection, the judicial police officer or the judicial authority under which the police detention is carried out is, in principle, obliged to notify that person’s guardian in order that the person can be assisted in the exercise of their rights, since the disputed provisions violate the defendant’s rights.
10. As a result, the first section of Article 706-113 of the Code of Criminal Procedure must be declared unconstitutional.
- Concerning the effects of the declaration of unconstitutionality:
11. According to the second section of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of Article 61-1 shall be repealed as of the publication of the said decision of the Constitutional Council or as of a subsequent date determined by said decision. The Constitutional Council shall determine the conditions and the limits according to which the effects produced by the provision shall be liable to challenge.” In principle, the declaration of unconstitutionality must benefit the person who brought the application for a priority preliminary ruling on the issue of constitutionality, and the provision declared unconstitutional may not be applied in the proceedings under way on the date of the publication of the decision of the Constitutional Council. However, the provisions of Article 62 of the Constitution maintain the right for the latter both to set the date of the repeal and to postpone its effects, and providing for challenges to the effects that the provision produced before the declaration was made.
12. The Constitutional Council does not have a general mandate for judgements in a manner similar to that of Parliament. It is not its role to indicate the modifications that must be carried out to remedy the stated unconstitutionality. In this case, the immediate repeal of the disputed provisions would include the effect of eliminating the obligation of the district prosecutor and the investigating judge to inform the guardian, as well as the guardianship judge, in case of criminal prosecution of an adult placed under a guardianship order. It would as such result in clearly excessive consequences. As a result, the date of repeal of the disputed provisions should be postponed to 1 October 2019. The measures taken having resulted in, prior to this date, the application of provisions declared unconstitutional and the measures of police detention taken prior to this date cannot be challenged based on this unconstitutionality.
THE CONSTITUTIONAL COUNCIL DECIDES:
Article 1. - The first section of Article 706-113 of the Code of Criminal Procedure, in its formulation resulting from Act No. 2008-174 of 25 February 2008 relating to preventive detention and the declaration of exemption from criminal responsibility for reason of mental disorder, is unconstitutional.
Article 2. - The declaration of unconstitutionality of Article 1 becomes effective according to the conditions of paragraph 12 of this decision.
Article 3. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned Ordinance of 7 November 1958.
Ruled by the Constitutional Council in its 13 September 2018 session, with the following members present: Lionel JOSPIN, acting as President, Jean-Jacques HYEST, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI and Michel PINAULT.
Published on 14 September 2018.