THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 29 December 2017 by the Conseil d’État (decision no. 415434, 415697 of 28 December 2017), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for Mr. Rouchdi B. by Mr. Bruno Vinay, Esq., Attorney admitted to the Paris Bar and for the Ligue des droits de l’Homme [ Human Rights League] by the firm Spinosi et Sureau, Attorneys at the Conseil d’État and the Cour de cassation. It was registered by the General Secretariat of the Constitutional Council under number 2017-695 QPC. It concerns the conformity with the rights and freedoms guaranteed by the Constitution:
- of Article L. 226-1 of the Internal Security Code, in its wording resulting from Law no. 2017-1510 of 30 October 2017 reinforcing domestic security and the fight against terrorism, the words “or to those of the protection perimeters established pursuant to Article L. 226-1” stated in the sixth Subparagraph of Article L. 511-1 of the same Code, in its wording resulting from the same law, the words “including in the protection perimeters established pursuant to Article L. 226-1” stated in the first Subparagraph of Article L. 613-1 of the same Code, in the same wording, and the words “or when a protection perimeter is established pursuant to Article L. 226-1” mentioned in the first sentence of the second Subparagraph of Article L. 613-2 of the same Code, in the same wording;
- of Article L. 227-1 of this same Code, in its wording resulting from the same Law;
- of Articles L. 228-1, L. 228-2, L. 228-3, L. 228-4, L. 228-5 and L. 228-6 of the same Code, in the same wording;
- of Articles L. 229-1, L. 229-2, L. 229-4 and L. 229-5 of the same Code, in the same wording.
Having regard to the following texts:
- the Constitution;
- Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
- the Code of Administrative Justice;
- the Internal Security Code;
- Law no. 55-385 of 3 April 1955 regarding the state of emergency;
- Law no. 2017-1510 of 30 October 2017 reinforcing internal security and the fight against terrorism;
- Decision no. 2017-691 QPC of the Constitutional Council of 16 February 2018;
- the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;
Having regard to the following items:
- the observations on behalf of the applicant association by the firm Spinosi et Sureau, registered on 25 January and 9 February 2018;
- the observations of the Prime Minister, registered on 25 January 2018;
- the observations in intervention filed on behalf of Mr. Mohamed M. by Mr. Raphaël Kempf, Esq., Attorney admitted to the Paris Bar, registered on 25 January 2018;
- the letter of 15 March 2018 by which the Constitutional Council submitted to the parties the objections that it raised;
- the observations of the Prime Minister, registered on 19 March 2018;
- the documents produced and attached to the case file;
After having heard Mr. François Pinatel and Mr. Patrice Spinosi, Esqs., Attorneys at the Conseil d’État and the Cour de cassation, the first for the applicant, the second for the applicant association, Mr. Kempf for the intervening party, and Mr. Philippe Blanc, appointed by the Prime Minister, at the public hearing of 20 March 2018;
Having regard to the written comment from the Prime Minister, registered on 27 March 2018;
And having heard the Rapporteurs;
THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:
1. Article L. 226-1 of the Internal Security Code, in its wording resulting from the Law of 30 October 2017, mentioned above, establishes: “In order to ensure the security of a location or an event that may be exposed to a risk of acts of terrorism by its nature and the size of the participants, the State representative in the department or, in Paris, the Prefect may institute, by reasoned order, a protection perimeter in which access and the circulation of individuals shall be regulated.
“The order is immediately provided to the Public Prosecutor and communicated to the mayor of the municipality in question.
“The order defines this perimeter, limited to the area exposed to the threat and their surroundings, as well as the access points. Its scope and time frame are adapted and proportional to what is required according to the circumstances. The order establishes the rules of access and circulation of individuals within the perimeter, adapting them to what is required for their private, professional and family life, as well as search, among those mentioned in the fourth and sixth Subparagraph and to the exclusion of any others, to which they may be subject in order to have access or circulate there, and the categories of agents authorised to carry out the search.
“The decision may authorise the agents mentioned in Sections 2° to 4° of Article 16 of the Code of Criminal Procedure and, under the responsibility of these agents, those mentioned in Article 20 and in Sections 1°, 1° bis and 1° ter of Article 21 of the same Code to carry out, within the protection perimeter, with the consent of the individuals subject to these verifications, to security frisking as well as visual and bag inspection. Security frisking shall be carried out by an individual of the same gender as the individual subject to it. To carry out these operations, these agents may be assisted by agents carrying out the activities mentioned in Section 1° of Article L. 611-1 of this Code, placed under the supervision of a judicial police officer.
“Upon the mayor’s consent, the order may authorise the agents of the municipal police mentioned in Article L. 511-1 to participate in these operations under the supervision of a judicial police officer.
“When, taking into account the premises of the area, vehicles may enter this perimeter, the order may also include, upon access, vehicles being inspected, with the consent of the driver. These operations may only be carried out by the agents mentioned in Sections 2° to 4° of Article 16 of the Code of Criminal Procedure and, under the responsibility of these agents, by those mentioned in Article 20 and Sections 1°, 1° bis and 1° ter of Article 21 of the same Code.
“The persons who refuse to submit themselves, upon accessing or while circulating inside the perimeter, to security frisking, visual or bag inspections or the search of their vehicles will be denied access or will be escorted outside of the perimeter by the agents mentioned in the sixth Subparagraph of this Article.
“The term of validity of an order from the Prefect establishing a protection perimeter under this Article shall not exceed one month. The representative of the State in the department or, in Paris, the Prefect may renew the order beyond this time frame only where the conditions established in the first Subparagraph are still fulfilled”.
2. The sixth Subparagraph of Article L. 511-1 of the Internal Security Code, in its wording resulting from the Law of 30 October 2017, specifically establishes that the agents of the municipal police may be involved upon the mayor’s decision in the security of certain demonstrations “to those of the protection perimeters established pursuant to Article L. 226-1”.
3. The first Subparagraph of Article L. 613-1 of the Internal Security Code, in the same wording, specifically establishes that the agents carrying out private security activities may only carry out their activities inside buildings or within the limit of the area that they are protecting, “including in the protection perimeters established pursuant to Article L. 226-1”.
4. The first sentence of the second Subparagraph of Article L. 613-2 of the Internal Security Code, in the same wording, establishes the conditions under which agents carrying out private security activities may, with the express consent of individuals, carry out security frisking, in the event of specific circumstances related to the existence of serious threats to public security “or when a protection perimeter is established pursuant to Article L. 226-1”.
5. Article L. 227-1 of the Internal Security Code, in its wording resulting from the Law of 30 October 2017, establishes: “For the sole purposes of preventing acts of terrorism, the representative of the State in the department or, in Paris, the Prefect may order the closure of places of worship in which the words, the ideas or theories that are spread or the activities that occur incite violence, hatred or discrimination, endorse terrorism or support such activities.
“Such closure, which time limit is proportional to the circumstances that motivated it and that may not exceed six months, is ordered by an order stating the reasons thereof and preceded by an adversarial procedure under the conditions established in Chapter II of Title II of Book I of the Code on Relations Between the Public and the Administration.
“The order of closure includes an execution delay which shall be no less than 48 hours, upon the expiry of which the measure may be immediately implemented However, if an interested party, has filed an application before the administrative judge within this time limit, on the basis of Article L. 521-2 of the Code of Administrative Justice, the measure shall not be immediately implemented before the provisional relief judge has informed the parties if a public hearing will be held or not, pursuant to the second Subparagraph of Article L. 522-1 of the same Code, if the parties have been informed of such a hearing, before the judge has ruled on the application”.
6. Article L. 228-1 of the Internal Security Code, in this same wording, establishes: “For the sole purposes of preventing the commission of acts of terrorism, any person in respect of whom there are serious reasons to believe that their behaviour constitutes a particularly serious threat to public security and to public order and who either enters into regular contact with individuals or organisations that incite, facilitate or participate in acts of terrorism, or supports, spreads, when they include a manifest interest in the ideology, or adheres to views that incite or support terrorism may be bound by the obligations set forth in this chapter by the Minister of Internal Affairs”.
7. Article L. 228-2 of the Internal Security Code, in the same wording, establishes: “the Minister of Internal Affairs, after informing the Paris Public Prosecutor and the Public Prosecutor of the competent territorial jurisdiction, may impose to the person referred to in Article L. 228-1:
“1° Does not go outside a determined geographic perimeter, which shall not be smaller than the territory of the municipality. Determining this perimeter allows the individual in question to live a family life and a professional life and extends, if necessary, to the territories of other municipalities or other departments than those of their habitual residence;
“2° Periodically report to police service or the gendarmerie, within a limit of once per day, specifying if this obligation applies to Sundays and holidays or days off;
“3° Declares their habitual residence and any change of address.
“The obligations established in Sections 1° to 3° of this Article are set forth for a maximum time frame of three months from the notification of the Minister’s decision. They may be renewed by motivated decision for a maximum time frame of three months, when the conditions established in Article L. 228-1 are still met. Beyond a cumulative time frame of six months, each renewal shall be subject to new or additional elements. The total cumulative time frame of the obligations established in Sections 1° to 3° of this Article shall not exceed 12 months. These measures shall no longer apply when the conditions established in Article L. 228-1 are no longer fulfilled.
“Any decision to renew the obligations established in Sections 1° to 3° of this Article shall be notified to the individual in question at the latest five days before coming into force. If the person in question files a request before the administrative judge t on the basis of Article L. 521-2 of the Code of Administrative Justice within a time frame of 48 hours from the time the decision is notified, the measure shall not enter into force before the judge has delivered a decision on the request.
“The person subject to the obligations established in Sections 1° to 3° of this Article, within a time frame of one month from the time the decision is notified or from the notification of each renewal, may request the administrative tribunal to cancel the decision. The administrative tribunal shall issue a decision within two months from the time it is seized Such applications shall be exercised without prejudice to the procedures established in Articles L. 521-1 and L. 521-2 of the Code of Administrative Justice”.
8. Article L. 228-3 of the Internal Security Code, in this same wording, establishes: “Instead of the obligation established in Section 2° of Article L. 228-2, the Minister of Internal Affairs may propose to the person subject to the measure established in Section 1° of the same Article L. 228-2 to be placed under mobile electronic surveillance, after having informed the Paris Public prosecutor and the prosecutor of the competent territorial jurisdiction. Such placing measure shall be subject to the written consent of the individual in question. In this case, the geographic perimeter imposed in application of the same Section 1° shall not be smaller than the territory of the department.
“Being placed under mobile electronic surveillance is decided for the term of the measure taken in application of said Section 1°. It is brought to an end in the event of a temporary failure of the device or upon request from the individual in question, who may then be subject to the obligation established in Section 2° of said Article L. 228-2.
“The individual in question, for the entire term of his placing, is required to wear a technical device allowing the administrative authority at all times to remotely ensure that he/she has not left the perimeter defined in application of Section 1° of the same Article L. 228-2. The technical device shall not be used by the administrative authority to locate the individual, unless the person has left this perimeter or in the event of an altered functioning of said technical device.
“A Decree in the Conseil d’État establishes the terms of implementation of this Article. It may determine the conditions under which the technical device shall be allowed remote oversight as established in the third Subparagraph, for which automatic processing of personal data may be carried out, or may be provided to a private individual authorised for this purpose”.
9. Article L. 228-4 of the Internal Security Code, in this same wording, establishes: “In case the Minister of Internal Affairs does not apply Articles L. 228-2 and L. 228-3, he may, after informing the Paris Public Prosecutor and the Public Prosecutor of the competent territorial jurisdiction, impose to the person mentioned in Article L. 228-1:
“1° to report his/her residence and any change of residence;
“2° to report his/her movements outside of a determined perimeter which shall no longer be restricted to the sole territory of the municipality of his/her residence;
“3° not to appear in a determined place, which cannot include the residence of the person in question. This obligation takes into account the family life and the professional life of the person in question.
“The obligations set forth in Sections 1° to 3° of this Article shall be issued for a maximum time frame of six months from the notification of the Minister’s decision. They may be renewed by motivated decision for a maximum time frame of six months, when the conditions established in Article L. 228-1 are still fulfilled. Beyond a cumulative time frame of six months, renewal is subject to new or additional elements. The total cumulative time frame of the obligations established in Sections 1° to 3° of this Article shall not exceed 12 months. These measures shall not apply when the conditions established in Article L. 228-1 are no longer fulfilled.
“Any decision to renew the obligations shall be notified to the person in question at the latest five days before its coming into force. If the person files an application before the administrative judge on the basis of Article L. 521-2 of the Code of Administrative Justice within a time frame of 48 hours from the notification of the decision, the measure shall not enter into force before the judge has ruled on the request.
“The person subject to the obligations established in Sections 1° to 3° of this Article may, within two months from the notification of the decision or from the notification of each renewal, request the cancellation of the such decision to the administrative tribunal The administrative tribunal shall issue a decision within four months from the filing of the application. This recourse may be exercised without prejudice to the procedures open in Articles L. 521-1 and L. 521-2 of the Code of Administrative Justice”.
10. Article L. 228-5 of the Internal Security Code, in this same wording, establishes: “The Minister of Internal Affairs, after informing the Paris Public Prosecutor and the Public Prosecutor of the competent territorial jurisdiction, may impose to any person mentioned in Article L. 228-1, including when Articles L. 228-2 to L. 228-4, are applied, not to have direct or indirect contact with certain named individuals, in respect of whom there are serious reasons to believe that their behaviour constitutes a threat to public security.
“The obligation established in the first Subparagraph of this Article is issued for a maximum time frame of six months from notification of the Minister’s decision. Beyond a cumulative time frame of six months, the renewal shall be subject to new or additional elements. The total cumulative time frame of the obligation set forth in the first Subparagraph of this Article shall not exceed 12 months. Such obligation shall no longer apply when the conditions established in Article L. 228-1 are no longer fulfilled.
“Any decision to renew the obligations shall be notified to the person in question at the latest five days before its coming into force. If the person in question files a request before the administrative judge making a request in a time frame of 48 hours from the time the decision is notified, the measure shall not enter into force before the judge has delivered a decision on the request.
“The person subject to the obligation set forth in the first Subparagraph of this Article, in a time frame of two months from the time the decision is notified or from notification of each renewal, may request the cancellation of the decision to the administrative tribunal. The administrative tribunal shall issue a decision within four months from the time the application is filed. This recourse may be exercised without prejudice to the procedures open in Articles L. 521-1 and L. 521-2 of the Code of Administrative Justice”.
11. Article L. 228-6 of the Internal Security Code, in this same wording, establishes: “The decisions of the Minister of Internal Affairs on the basis of Articles L. 228-2 to L. 228-5 shall be in writing and motivated. With the exception of the measures adopted on the basis of Article L. 228-3, the Minister of Internal Affairs or his/her representative shall allow the person in question to present his/her observations within a maximum time frame of eight days from the notification of the decision ”.
12. Article L. 229-1 of the Internal Security Code, in the same wording, establishes: “upon the motivated application from the representative of the State in the department or, in Paris, from the Prefect, the Juge des Libertés et de la Détention [the judge supervising releases and detention] of the Paris First Instance Court may, by written and motivated order and after having heard the Paris Public Prosecutor, authorise the search of any place as well as to seize documents, objects or data that are found, only for the purposes of preventing the commission of acts of terrorism and when there exist serious reasons to believe that a place is being regularly visited by a person whose behaviour constitutes a particularly serious threat to security and public order and who either enters into regular contact with individuals or organisations that incite, facilitate or participate in acts of terrorism, or support, spread, when such communication includes a manifest interest in the ideology, or have a manifest interest in theories inciting the commission of acts of terrorism or endorsing such acts.
“These operations shall not apply to places used for the exercise of a parliamentary mandate or the professional activities of attorneys, magistrates or journalists as well as the residences of the individuals in question.
“Filing a request before the Juge des Libertés et de la Détention of the Paris First Instance Court is preceded by the investigation from the Paris Public Prosecutor and from the Public Prosecutor of the competent territorial jurisdiction, who shall receive all of the elements related to these operations. The order is communicated to the Paris Public prosecutor and to the Public Prosecutor of the competent territorial jurisdiction.
“The order shall state the address of the places where the search and seizure operations will be carried out, the service and the capacity of the agents authorised to carry it out, the administrative registration number of the head of the service who designates the police officer of the competent territorial jurisdiction, present on the spot , in charge of implementing these operations and keeping the Juge des Libertés et de la Détention informed of their progress, as well as the right of the occupants of the premises or their representative to the attorney of their choice, without this right leading to suspicion of the operations authorised on the basis of the first Subparagraph.
“The order shall be enforceable on presentation of a court order without prior notification”.
13. Article L. 229-2 of the Internal Security Code, in this same wording, establishes: “the order is notified on the spot to the occupant or his/her representative, at the time of the search of the location , he/she shall receive a full copy of the report of the search with signed proof of receipt. If there is no occupant or representative , the order shall be notified to them after the operations, by registered letter with acknowledgement of receipt. Notification is deemed to have been made at the date mentioned on the acknowledgment of receipt. In case the order was not received, the notification of the ordinance shall be carried out by a court officer.
“The act of notification includes the methods and time frames to appeal against the order authorising the search and against the carrying out of the search and seizure operations.
“The search is carried out in the presence of the occupant of the location or his/her representative, who may be assisted by the attorney of their choice. If the occupant is absent from the premises, the agent in charge of the search shall proceed only in the presence of two witnesses who are not placed under their supervision.
“The search shall neither begin before 6:00 AM nor after 9:00 PM, unless an express, written and motivated authorisation was granted by the Juge des Libertés et de la Détention of the Paris First Instance Court, on grounds of emergency or of the necessity of the operation.
“It shall be carried out under the authority and supervision of the Juge des Libertés et de la Détention who authorised it. To this end, the latter gives all instructions to the agents carrying out the operation. If the judge deems it necessary, he may be present in the premises during the operation and, at any time, upon request of the occupant of the place or their representative, or upon the judge’s own initiative, decide to suspend or stop the operation. In order to carry out this supervision, when the search occurs outside of the jurisdiction of the Paris First Instance Court, a rogatory commission may be sent for the Juge des Libertés et de la Détention of the First Instance Court of the jurisdiction where the search is carried out.
"If an offence is ascertained, the officer from the judicial police shall document it in a report, shall implement any seizure that is appropriate and give notice thereof to the Public Prosecutor of the competent territorial jurisdiction without delay.
“A report indicating the methods and undertakings of the operations and the observations made shall be carried out and drawn up at the location by the agents who have carried out the search. The report shall be signed by these agents and by the judicial police officer of the competent jurisdiction present in the places, who may be identified by the administrative registration number set forth in Article 15-4 of the Code of Criminal Procedure, their capacity and the service or unit that they belong to, as well as by the occupant of the place or, as the case may be, his/her representative or the witnesses. Should the interested parties refuse to sign, this shall be indicated in the report.
“The original report, once drafted, shall be sent to the judge who authorised the search. A copy of this document shall be given or sent by registered letter with acknowledgement of receipt to the occupant of the premises or to his/her representative.
“The report shall mention the delays and remedies
“If, at the time of the search, the agents carrying it out discover elements related to the existence of other places that fall under the conditions established in the first Subparagraph of Article L. 229-1, they may, upon authorisation of the judge who issued the order, issued in case of an emergency by any means, immediately carry out searches of these premises. Such authorisation shall be indicated in the report mentioned in the seventh Subparagraph of this Article.
“The judge who authorised the search and the jurisdictions of the decision to which applications were filed for this purpose shall have access to the first and last name of any individual identified by an administrative registration number in the report mentioned in the seventh Subparagraph”.
14. Article L. 229-4 of the Internal Security Code, in its same wording, establishes: “I.- When the individual in question may be able to provide indications on objects, documents and data present in the place of the search seeking to prevent the commission of acts of terrorism that led to the search, the person for whom there exists serious reasons to believe that his/her behaviour constitutes a particularly serious threat to security and public order may, after immediately informing the Juge des Libertés et de la Détention of the Paris First Instance Court, be held on the spot by the judicial police officer for the time strictly necessary to carry out the operations.
“This detention may not exceed four hours from the time the search began and the Juge des Libertés et de la Détention may end it any time.
“Regarding minors, they may be detained subject to the express consent of the Juge des Libertés et de la Détention. The minor must be assisted by his/her legal representative, except in the event of a duly justified impossibility to do so.
“Indication of the information or the express consent of the Juge des Libertés et de la Détention is indicated on the report mentioned in the first Subparagraph of Section III.
“II.- The person being detained is immediately informed by the judicial police officer or, under his supervision, by an agent of the judicial police, in a language that they understand:
“1° Of the legal basis for his/her detention;
“2° Of the maximum time frame of the measure;
“3° Of the fact that his/her detention shall not lead to a hearing and that he/she has the right to remain silent;
“4° Of the fact that he/she has the right to ask the judicial police officer to tell any individual of his/her choice as well as his/her employer.
“If the judicial police officer believes, based on the necessity related to the individual being detained, that he/she should not grant such request, he/she shall immediately notify this to the Juge des Libertés et de la Détention who will decide, as the case may be, to allow this.
“Except in the event of overwhelming circumstances, which must be indicated in the report, the actions from the judicial police officer under the first Subparagraph of this Section 4° must take place, at the latest, within two hours from the time that the individual filed his/her request.
“III.- The judicial police officer shall indicate, in a report, the reasons for the detention. The date and time from the start of the individual being detained and the date and time of the individual being released and the time frame for this shall be specified.
“This report is submitted to the signature by the individual in question. If the latter refuses to sign, such refusal and the reasons for the refusal shall be indicated.
“The report is sent to the Juge des Libertés et de la Détention, a copy of which is given to the individual in question.
“The term of the detention shall be deducted from the time held in police custody, as the case may be”.
15. Article L. 229-5 of the Internal Security Code, in the same wording, establishes: “I.- For the sole purpose of preventing acts of terrorism, if the search reveals the existence of documents, objects or data relating to a particularly serious threat to security and public order regarding the behaviour of the individual in question, they may be seized as well as the data contained on their computer or technical device present at the location of the search either by copying it, or by seizing the media it is on when a copy cannot be carried out or finished during the time of the search.
"Copying data or seizing computers or technical devices shall be carried out in the presence of a judicial police officer. The report mentioned in Article L. 229-2 shall indicate the grounds for the seizure and shall include an inventory of the objects, documents or the data seized. A copy of this is provided to the individual mentioned in the third Subparagraph of the same Article L. 229-2 as well as to the judge who allowed it. The elements seized shall be kept under the responsibility of the head of the department who carried out the search. As of the seizure, no one shall be granted access to it without the authorisation of the judge.
“II.- At the end of the search, the administrative authority may request from the Juge des Libertés et de la Détention of the Paris First Instance Court an authorisation to examine the data seized. Having regard to the elements resulting from the search, the judge will decide on the due process of the seizure and the administrative authority’s request, within 48 hours from the seizure. Elements that have no connection with the goal of preventing acts of terrorism that justified the search shall be excluded from the authorisation.
“The order shall be notified by registered letter with acknowledgement of receipt. Notification is deemed to have been made at the date mentioned on the acknowledgment of receipt. In case the order was not received, the notification of the order shall be carried out by a court officer.
“The act of notification shall mention the methods and the deadlines to appeal against the order authorising the use of the data seized.
“The order authorising the use of the data seized may, within a time frame of 48 hours, be subject to appeal before the presiding judge of the Paris Court of Appeals according to the methods mentioned in the first three Subparagraphs of Section I of Article L. 229-3. The presiding judge shall deliver a decision within 48 hours.
“The order of the presiding judge of the Paris Court of Appeals may be appealed according to the rules set forth in the Code of Criminal Procedure. The timeframe appeal is 15 days.
“In the event a decision of refusal is irrevocable, the copied data shall be destroyed and the media seized returned, in the state they were in when they were seized, to their owner.
"During the time that is strictly necessary for their use authorised according to the procedure set forth in this Article, the seized data and media shall be held under the responsibility of the head of the service having initiated the search and seizure. The computer systems or the technical devices shall be returned to their owner, as the case may be, once a copy of the data contained has been made, within a maximum time frame of fifteen days from the date of their seizure or the date when the judge, before which the application was filed within this time frame , authorised the use of the data it contains. The copied data shall be destroyed within a maximum time frame of three months from the date of the search or from the date when the judge, within the time frame set out, authorised the examination of the data.
"In the event there is difficulty in accessing the data contained on the seized media or in accessing the copied data, when it is necessary, the aforementioned deadlines in the penultimate Subparagraph of this Section II may be extended, for the same time frame, by the Juge des Libertés et de la Détention of the Paris First Instance Court within 48 hours of these deadlines expiring. The judge shall rule on the extension requested by the administrative authority within 48 hours. If assessment or examination of the seized data and media leads to findings of an infraction, these data and media shall be held according to the applicable regulations regarding criminal procedure”.
16. Firstly, the applicant association claims that Article L. 226-1 of the Internal Security Code does not define sufficiently enough the conditions under which protection perimeters shall be established. Furthermore, these provisions contain no appropriate legal guarantees allowing to frame the operations of controlling the access and movement of individuals, security frisking and the search of luggage and vehicles carried out within these perimeters. Such lack of legal guarantees would deprive the individuals subject to these measures of the possibility to benefit from effective judicial protection. This would result in a violation of the freedom to come and go, to the right to privacy l and the right to effective legal remedy, as well as an infringement by the legislature regarding their scope of jurisdiction insofar as it affects those same rights and liberties.
17. The Constitutional Council, on the one hand, immediately raised that, by failing to specify the criteria for which protection perimeters, operations to control of the access and the movement of individuals, security frisking, inspections and the search of bags and vehicles are implemented, the provisions of Article L. 226-1 of the Internal Security Code would infringe on the principle of equality before the law. On the other hand, it immediately raised that, by allowing agents to carry out private security activities implementing certain operations of control inside protection perimeters , these provisions would infringe on the requirements of Article 12 of the Declaration of the Rights of Man and the Citizen of 1789.
18. Secondly, the applicant association claims that by allowing the administrative authority to close places of worship, to prevent acts of terrorism, because of certain words, ideas or theories which are used or because of certain activities that occur, Article L. 227-1 of the Internal Security Code would infringe on religious freedom, the freedom of expression and communication, the right to the collective expression of ideas and opinions, the freedom of association and the right to effective legal remedy. In this regard, they claim that the lack of exactness of the notion of “ideas or theories” and the fact that incitement to "hatred or discrimination”, likely to justify the closure of a place of worship, does not necessarily show a connection with preventing terrorism. They also blame the legislature for not prohibiting indefinite renewal of the closure measure and by not establishing guarantees that would ensure compliance with the constitutional requirements mentioned hereinabove, which could be tarnished by negative incompetence [the legislature erroneously undermining and delegating its own powers to another].
19. Thirdly, according to the applicant association, the provisions related to individual measures for administrative control and surveillance established in Articles L. 228-1 to L. 228-6 of the Internal Security Code infringe on the freedom to come and go, the right to privacy and the right to a family life and the right to effective legal remedy, and such provisions could therefore be tarnished by negative incompetence according to the conditions that affect these same rights and liberties. They blame the legislature for not defining specifically enough , in Article L. 228-1, the conditions to implement these measures as well as, in Article L. 228-5, the scope of the prohibition of “being in direct or indirect contact with certain individuals”. Furthermore, the applicant association argues that the legislature should have established temporary provisions in favour of individuals that may be placed under house arrest pursuant to Article L. 228-2 of the Internal Security Code, after they have been, in the framework of the state of emergency, on the basis of Article 6 of the Law of 3 April 1955 mentioned hereinabove. The applicant argues that, by establishing such measure of house arrest, the legislature infringed on the principle of the separation of powers since overseeing such a measure should have fallen within the jurisdiction of the judicial judge. They also claim that by allowing a house arrest measure due to an adherence to a terrorist ideology, the legislature disregarded the freedom of opinion, the freedom to come and go and, given the lack of exactness of the terms used, the constitutional objective of accessibility and intelligibility of the law as well as its own competence.
20. Lastly, according to the applicant association and the intervening party, the provisions related to search and seizures are not necessary, do not define specifically enough the conditions for initiating and carrying out these measures and do not establish sufficient legal guarantees, in particular when the search occurs outside of the presence of the occupant of the premises or when it is followed in other premises. The applicant association also claims that these provisions allow the detention of an occupant of the premises without prior authorisation of a judge. This would result in a violation of the right to privacy and the inviolability of the domicile and the right to effective legal remedy, as well as negative incompetence likely to affect those same rights. According to the intervening party, these provisions also infringe on the right to a fair trial and the rights of defence, because the procedure carried out before the Juge des Libertés et de la Détention, in order to authorise the evaluation of the data seized during a home search, is neither public nor adversarial.
21. The Constitutional Council has immediately raised that, during a search as established in Article L. 229-1 of the Internal Security Code, allowing “documents” and “objects” to be seized, without previously establishing the rules framing how they will be assessed, how they will be kept and how they will be returned, the provisions of Article L. 229-5 of the same Code infringe on the right to property.
22. Consequently, the priority matter of constitutionality refers to the provisions of the Internal Security Code:- Article L. 226-1 the words “or to those of the protection perimeters instituted in application of Article L. 226-1” appearing in the sixth Subparagraph of Article L. 511-1, the words “including in the protection perimeters instituted in application of Article L. 226-1” appearing in the first Subparagraph of Article L. 613-1, and the words “or when a protection perimeter is instituted in application of Article L. 226-1” appearing in the first sentence of the second Subparagraph of Article L. 613-2;
- Article L. 227-1;
- Articles L. 228-1, L. 228-2 and L. 228-5;
- Article L. 229-1, the third and tenth Subparagraph of Article L. 229-2, the first Subparagraph of Paragraph I of Article L. 229-4 and Article L. 229-5.
23. Pursuant to the combined provisions of the third Subparagraph of Article 23-2 and the third Subparagraph of Article 23-5 of the Ordinance of 7 November 1958 mentioned hereinabove, the Constitutional Council shall not decide on a priority preliminary ruling on a provision already declared constitutional on the grounds and procedures of a decision of the Constitutional Council, except due to a change in circumstances.
24. In its decision of 16 February 2018 mentioned hereinabove, the Constitutional Council specifically examined the provisions of Article L. 228-2 of the Internal Security Code. It decided to censor three provisions of this article and declared the rest of the Article constitutional on the grounds and the procedures of this decision. Therefore, the Constitutional Council is not required to decide on the provisions of this article that have already been censored or, in the absence of a change of circumstances, to re-examine the provisions already declared constitutional.
- On the merits:
. Regarding Article L. 226-1 of the Internal Security Code and the contested provisions of the sixth Subparagraph of Article L. 511-1, the first Subparagraph of Article L. 613-1 and the first sentence of the second Subparagraph of Article L. 613-2 of the same Code:
25. Article L. 226-1 of the Internal Security Code allows the representative of the State in the department or the Prefect, in Paris, to establish a protection perimeter within which the access and movement of individuals shall be regulated for the purposes of securing an area or an event exposed to the risk of terrorism. The access and movement in this perimeter may be subject to the necessity for individuals to submit to security frisking, visual inspections and luggage and vehicle search.
- On the claim alleging that the requirements from Article 12 of the 1789 Declaration have been infringed:
26. According to Article 12 of the 1789 Declaration: "Guaranteeing the rights of Man and the Citizen requires law enforcement: therefore, this enforcement is enacted for the benefit of all, and not for the personal benefit of those to whom it is entrusted." It follows from this that it is prohibited to delegate to private individuals the competence of the administrative policing powers inherent in the exercising of “law enforcement” necessary to guarantee these rights.
27. The contested provisions entrust to law enforcement the possibility of being assisted, to implement security frisking and inspections and luggage search, by authorised agents carrying out private security activities. In this regard, the legislature has allowed private individuals to be involved in the exercise of general surveillance missions in the public sphere. It follows from the contested provisions that these individuals may only assist agents of the judicial police and are placed “under the supervision of a judicial police officer”. It is the public authorities’ responsibility to take measures to ensure that the effectiveness of checks over these individuals shall be ensured by judicial police officers. Subject to this, these provisions do not infringe on the requirements resulting from Article 12 of the Declaration of 1789.
- Regarding the claims of infringement on the freedom to come and go, on the right of respect to privacy and on the principle of equality before the law:
28. Pursuant to Article 34 of the Constitution, the law shall determine the rules concerning the fundamental guarantees granted to citizens for the exercise of their civil liberties. Within this framework, it is the legislature’s responsibility to ensure harmonisation between, on the one hand, safeguarding against attacks on public order, 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 privacy, protected by the same Article 2.
29. According to Article 6 of the 1789 Declaration, the law "must be the same for all, whether it protects or punishes". The principle of equality does not prevent the legislature from regulating different situations in different ways, nor does it depart from equality in the public interest, provided that in both cases the resulting difference in treatment is directly related to the subject matter of the law providing for such different treatment.
30. By allowing the Prefect to establish perimeters within which the access and the movement of individuals are regulated and to implement control measures , the contested provisions infringe on the freedom to come and go and to freedom of privacy.
31. Firstly, a protection perimeter may only be established by the Prefect, by a reasoned decision, for the purpose of ensuring safety in an area or of an event that may be exposed to the risk of acts of terrorism by its nature and the size of the participants. Furthermore, this perimeter must be limited to the area exposed to the threat and their surroundings. Finally, its scope and time frame must be adapted and in proportion to what is required according to the circumstances. By adopting the contested provisions, the legislature thus sought the aim of fighting against terrorism, which is part of the constitutional objective aiming at preventing attacks to public order. It also specifically defined the conditions for implementing a protection perimeter in place and limited the scope of application of such a measure.
32. Secondly, the rules for access and movement within the perimeter, defined by a decision from the Prefect, must be adapted to the requirements of the private, professional and family life of individuals. Such order also determines the verification measures, defined in a limited capacity by the contested provisions, to which individuals may be subject to access or circulate in the perimeter. These measures correspond to security frisking, visual bag inspections and search and vehicle inspections. They shall only be carried out by judicial police authorities or, in their presence and under their effective supervision, by agents of the municipal police or authorised agents carrying out private security activities, with the consent of the individual subject to these verifications.
33. However, if it is permissible for the legislature to not establish the criteria for which, within protection perimeters, operations to control the access and circulation, security frisking, bag inspections and search and the search of vehicles are carried out, implementing these verifications thus conferred by law to judicial police authorities or under their responsibility shall only occur, in compliance with the rights and liberties mentioned above, on the basis of criteria that exclude any discrimination whatsoever between individuals.
34. Lastly, the contested provisions limit the validity period of the prefectoral order to one month. This may be renewed only if the conditions that justify establishing a protection perimeter are still fulfilled. This renewal is thus subject to the requirement of assuring the security of an area or an event and on the condition that a risk of acts of terrorism remains valid, due to its nature and the size of the participants. However, given the strictness of the measures established in the contested provisions, such a renewal, without infringing on the freedom to come and go and the right to privacy, cannot be decided by the Prefect unless the latter establishes that the risk still remains.
35. It follows from the foregoing that, subject to the reservations established in Paragraphs 33 and 34, by adopting the contested provisions, the legislature, which both strictly limited the scope of application of the measure that he/she establishes and included the necessary guarantees, ensured a harmonisation that is not manifestly unequal between, on the one hand, the constitutional value of preventing attacks on public safety, and on the other hand, the freedom to come and go and the right to privacy. Additionally, subject to the reservations established in Paragraph 33, the contested provisions do not infringe either the principle of equality before the law.
36. It follows from the foregoing that, subject to the reservations established in Paragraphs 27, 33 and 34, the provisions of Article L. 226-1 the words “or to those of the protection perimeters instituted in application of Article L. 226-1” set forth in the sixth Subparagraph of Article L. 511-1, the words “including in the protection perimeters instituted in application of Article L. 226-1” set forth in the first Subparagraph of Article L. 613-1, and the words “or when a protection perimeter is instituted in application of Article L. 226-1” appearing in the first sentence of the second Subparagraph of Article L. 613-2 of the Internal Security Code, which do not infringe on the right to effective legal recourse, or any other right or freedom that the Constitution guarantees and is not tarnished by negative incompetence, should be declared constitutional.
. Regarding Article L. 227-1 of the Internal Security Code:
37. Pursuant to Article 10 of the 1789 Declaration: “No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.”. The freedom of conscience results therefrom. Article 1 of the Constitution provides that “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs”. It follows from this Article and Article 10 of the Declaration of 1789 that the principle of secularism specifically requires the Republic to guarantee the free practice of religion.
38. Article L. 227-1 of the Internal Security Code authorises the Prefect, in order to prevent from acts of terrorism, to temporarily close places of worship under certain conditions. This provision therefore infringes on the freedom of conscience and on the free practice of religion.
39. Firstly, measures for closing a place of worship may only be carried out for the purposes of preventing the commission of an act of terrorism. Furthermore, a second condition must be fulfilled: the views that are held, the ideas or theories that are spread or the activities that occur must either incite violence, hate or discrimination, or incite acts of terrorism or endorse such activities. It follows from the combination of these two conditions, that, when justification for this measure relies on the incitement to violence, hate or discrimination, it is the Prefect’s responsibility to establish that this provocation is in line with the risk of acts of terrorism. By authorising the adoption of such a measure on the temporary closure of places of worship, the legislature thus sought the objective of the fight against terrorism, which is part of the objective of the constitutional value aiming at preventing attacks to public order.
40. Secondly, the legislature limited the term of the measure established in Article L. 227-1 of the Internal Security Code to six months and did not plan its possible renewal. Later adoption of a new measure dealing with the closure of places of worships may only be based on facts that occur after reopening the place of worship.
41. Thirdly, the measure consisting in closing a place of worship must be justified and proportionate, specifically regarding its time frame, to the reasons motivating it. In this regard, the Prefect must take into account the consequences of such a measure for the individuals who regularly attend the place of worship and the possibility or not for them to practice their religion in another area. The administrative judge is in charge of ensuring that this measure is appropriate, necessary and proportionate to the objectives sought.
42. Lastly, the measure consisting in closing a place of worship may be subject to an application for interim measures on the basis of Articles L. 521-1 and L. 521-2 of the Code of Administrative Justice. It shall then be suspended until the judge decides to hold a public hearing or not. Should the judge decide to hold a public hearing, the suspension of operation of the measure shall be extended until the ruling on interim measures takes place, which must be delivered within 48 hours.
43. It follows from the foregoing that the legislature, which did not infringe on the scope of its authority, ensured a harmonisation that is not manifestly unequal between, on the one hand, the constitutional value of safeguarding against attacks on public order, and on the other hand, the freedom of conscience and the free practice of religion. Article L. 227-1 of the Internal Security Code, that also does not infringe on the freedom of expression and communication, the right to the collective expression of ideas and opinions, the liberty of association and the right to effective legal remedy, or on any other right or liberty that the Constitution guarantees, should be declared constitutional.
. Regarding Articles L. 228-1 and L. 228-5 of the Internal Security Code:
44. It is the legislature’s responsibility to ensure harmonisation between, on the one hand, safeguarding against attacks on public order, 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 live a normal family life, which results from the tenth Subparagraph of the Preamble to the Constitution of 27 October 1946, and the right to privacy and the freedom to come and go.
45. 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 an effective legal remedy.
- Regarding Article L. 228-1 of the Internal Security Code:
46. Under Article L. 228-1 of the Internal Security Code, an individual measure of administrative control and surveillance may only be issued for the purposes of preventing the commission of an act of terrorism. Furthermore, two additional conditions must be fulfilled. On the one hand, it is the responsibility of the Minister of Internal Affairs to establish if there are serious reasons to believe that the behaviour of a person subject to the measure constitutes a particularly serious threat to public safety and to public order. This threat must necessarily be related to the risk of the commission of an act of terrorism. On the other hand, it is also their responsibility to prove either that this person has “ regular contacts with individuals or organisations that incite, facilitate or participate in acts of terrorism”, or they “support, spread, or that include a manifest interest in the ideology, or have a manifest interest in ideas inciting the commission of acts of terrorism or supporting such acts”. By adopting the contested provisions, the legislature precisely defined the conditions related to administrative control or surveillance measures.
47. Article 228-1, which is not tarnished by negative incompetence under the conditions likely to affect the constitutional requirements mentioned hereinabove and which do not infringe on any right or freedom that the Constitution guarantees, should be declared constitutional.
- Regarding Article L. 228-5 of the Internal Security Code:
48. Article L. 228-5 of the Internal Security Code allows the Minister of Internal Affairs to prohibit any individual mentioned under Article L. 228-1 from being in direct or indirect relation with certain individuals, designated, when there exist serious reasons to believe that their behaviour constitutes a threat to public security. Thus, these provisions infringe on the right to lead a normal family life, the right to privacy and the freedom to come and go.
49. Firstly, however, the measure established in Article L. 228-5 shall only apply if the conditions under Article L. 228-1 are fulfilled. By adopting these provisions, the legislature sought the objective of the fight against terrorism, which includes the constitutional objective of preventing attacks on public order, and to limit the scope of application of this measure to individuals suspected of presenting a particularly serious threat to public order.
50. Secondly, given the conditions that the legislature placed, the threat presented by these designated individuals , with whom regular contacts are prohibited, must be connected to the risk of the commission of acts of terrorism.
51. Thirdly, it is the responsibility of the Minister of Internal Affairs, when determining the individuals with whom regular contacts are prohibited, to take into account the family ties of the individual in question and to ensure in particular that the measure prohibiting regular contacts with them does not disproportionately infringe on his/her right to have a normal family life.
52. Fourthly, the legislature determined the time frame of the measure established in Article L. 228-5. It may be initially pronounced or renewed only for a maximum time frame of six months. Beyond a cumulative time frame of six months, its renewal shall be subject to new or additional elements provided by the Minister of Internal Affairs. The total cumulative time frame for a prohibition from meeting shall not exceed 12 months. Given its strictness, this measure shall not, without infringing on the above-mentioned constitutional requirements, exceed, whether continuously or not, a total time frame of 12 months.
53. Finally, on the one hand, the measure established in Article 228-5, which may be subject to an application for interim measures on the basis of Articles L. 521-1 and L. 521-2 of the Code of Administrative Justice, may be contested by these proceedings on the grounds of abuse of power, in a time frame of two months after its notification or notification of its renewal, before the administrative tribunal. The latter must rule within a time frame of four months. However, given the infringements such a measure has for the individual in question, by allowing a judge a time frame of four months to rule, the legislature carried out a manifestly unbalanced situation between the above-stated constitutional requirements and the constitutional objective of preventing attacks on public order. Consequently, the second sentence of the last Subparagraph of Article 228-5 of the Internal Security Code should be declared unconstitutional. Furthermore, the right to effective legal remedy requires that the administrative judge be required to rule on the application for the cancellation of the measure as soon as possible.
54. On the other hand, any decision to renew the measure notified to the person in question at the latest five days before its coming into force, this individual may, within forty eight hours, go before the judge sitting for interim measures of the administrative tribunal, based on Article L. 521-2 of the Code of Administrative Justice, requesting to take all necessary measures to protect his/her rights and freedoms. This remedy has suspensive effect. Under the terms of the same Article L. 521-2, the control undertaken by the Interim Relief Judge shall be limited to serious and manifestly illegal violations. By allowing the contested measure to be renewed beyond six months without having a judge decide beforehand, upon request of the person in question, on the legality and well-founded motives regarding the decision to renew it, the legislature enacted a manifestly unbalanced situation between the above-mentioned constitutional requirements and the constitutional objective of preventing attacks on public order. Therefore, the words “based on Article L. 521-2 of the Code of Administrative Justice” appearing in the second sentence of the penultimate Subparagraph of Article L. 228-5 of the Internal Security Code should be declared unconstitutional.
55. It follows from the foregoing that, subject to the reservations established in Paragraphs 51, 52 and 53, by adopting the contested provisions, the legislature, which both strictly limited the scope of application of set forth and included the necessary guarantees, ensured a harmonisation that is not manifestly unbalanced between, on the one hand, the constitutional value of safeguarding against attacks on public order, and on the other hand, the freedom to come and go and the right to privacy. Nor has it infringed on the right to effective legal remedy.
56. Subject to the reservations established in Paragraphs 51, 52 and 53, the remainder of Article L. 228-5 of the Internal Security Code, which does not violate any right or freedom guaranteed under the Constitution, should be ruled constitutional.
. On Article L. 229-1, the third and tenth Subparagraph of Article L. 229-2, the first Subparagraph of Paragraph I of Article L. 229-4 and Article L. 229-5 of the Internal Security Code:
- Regarding the claims of infringement on the right to respect for privacy, the inviolability of the home, the freedom to come and go and the right to effective legal remedy:
57. It is the legislature’s responsibility to ensure harmonisation between, on the one hand, safeguarding against attacks on public order, 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 inviolability of the home, protected under Article 2 of the Declaration of 1789, and the right to privacy and the freedom to come and go.
58. Articles L. 229-1, L. 229-2, L. 229-4 and L. 229-5 of the Internal Security Code establish the conditions for search and seizure for the purposes of preventing terrorism. Article L. 229-1 defines the conditions under which such search and seizure may be authorised by the Juge des Libertés et de la Détention of the Paris First Instance Court, asked to decide by the representative of the State in the department or, in Paris, the Prefect. Article L. 229-2 defines the terms for carrying out the search. Article L. 229-4 allows the person in question to be detained on the spot, during the operations. Article 229-5 establishes the conditions under which the administrative authority may, during the visit, seize documents, objects and data found there, as well as evaluate them.
59. First of all, under Article L. 229-1 of the Internal Security Code, visits and seizures may only be authorised for the sole purposes of preventing the commission of acts of terrorism. Furthermore, two cumulative conditions must be met. On the one hand, it is the responsibility of the Prefect to establish if there exist serious reasons to believe that a place is regularly visited by a person whose behaviour constitutes a particularly serious threat to security and public order. This threat must be related to the risk of the commission of an act of terrorism. On the other hand, it is also their responsibility to prove that this person either is in regular contact with individuals or organisations that incite, facilitate or participate in acts of terrorism, or they support, spread, or that include a clear interest in the ideology, or have a clear interest in ideas inciting the commission of acts of terrorism or supporting such acts. By adopting the contested provisions, the legislature thus sought the objective of the fight against terrorism, which is part of the objective of the constitutional value of preventing attacks to public order. It also precisely defined the conditions under which search and seizures shall be carried out and limited their scope of application to individuals suspected of presenting a particularly serious threat to public order.
60. Secondly, on the one hand, the legislature ensured that any search and seizure shall be authorised beforehand by the Juge des Libertés et de la Détention, who must be requested to do so by a motivated decision of the commissioner and ordered by written and motivated order, after receiving the Public Prosecutor’s opinion. On the other hand, visits and seizures may not relate to areas affected by a parliamentary mandate being exercised or the professional activities of attorneys, magistrates or journalists, or to the residences of the individuals in question.
61. Thirdly, under the third Subparagraph of Article 229-2 of the Internal Security Code, the visit must be carried out in the presence of the occupant of the place or their representatives and they may be allowed to be assisted by the attorney of their choice. If the occupant is absent from the premises, the agents may only proceed in the presence of two witnesses who are not placed under their authority.
62. Fourthly, if the tenth Subparagraph of Article 229-2 allows the agents in charge of a search, in the event that elements related to the existence of other locations under the conditions established in the first Subparagraph of Article L. 229-1 are discovered, to immediately search these premises upon authorisation of the Juge des Libertés et de la Détention, these provisions do not exempt the agent from complying with the other conditions established in Article L. 229-2. The options for remedy established in Article L. 229-3 shall also apply.
63. Fifthly, detention on the spot established by the first Subparagraph of Article 229-4 may only apply to the person for whom there exist serious reasons to believe that their behaviour constitutes a particularly serious threat and under the condition that they are able to provide indications on objects, documents and data present in the location of the search that have the goal of preventing the commission of acts of terrorism that justified the visit. This detention, the time frame of which is limited to four hours and which must only relate to the individual who regularly visits the visited place , is preceded by an immediate notification to the Juge des Libertés et de la Détention, who may end it at any time. Regarding minors, they may be detained subject to the express authorisation from the Juge des Libertés et de la Détention.
64. Finally, on the one hand, copying the technical data permitted under Article 229-5 is only possible when the search reveals the existence of data relating to a particularly serious threat to security and to public order related to the behaviour of the individual in question. Carried out in the presence of a judicial police officer, copying data shall not be allowed without a report indicating the reasons and establishing an inventory of the data seized, and without a copy of which being provided to the occupant of the location, their representative or two witnesses as well as the judge who authorised it.
65. On the other hand, the examination of the seized data requires prior authorisation from the Juge des Libertés et de la Détention, who is asked for authorisation for this purpose after the search. This authorisation shall not deal with elements that have no connection to the goal of preventing the commission of acts of terrorism that justified the search. While awaiting the judge’s decision, the data shall be placed under the responsibility of the official having initiated the search and no one may have access to it. If the order authorising the examination of the seized data is made by the Juge des Libertés et de la Détention without adversarial debate or public audience, it is subject to appeal, without suspensive effect, before the presiding judge of the court of appeals, who shall deliver a decision within 48 hours.
66. It follows from the foregoing that the legislature, which both strictly limited the scope of application of the measure that it instilled and included the necessary guarantees, ensured a harmonisation that is not clearly unequal between, on the one hand, the constitutional value of safeguarding against attacks on public safety, and on the other hand, the right to privacy, the inviolability of the home and the freedom to come and go. Nor has it infringed on the right to effective legal remedy.
- Regarding the claim of infringement on the right to property.
67. Property is part of the human rights established by Articles 2 and 17 of the 1789 Declaration. Pursuant to Article 17: "Since the right to Property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it, and just and prior indemnity has been paid". In the absence of depriving the right to property under this Article, Article 2 of the 1789 Declaration states nevertheless that infringement of this right must be justified by public interest and proportional to the objective sought.
68. The contested provisions allow the seizure, during a search, not only of data and computer systems and device media that they are on, but also “documents” and “objects”. However, different from the legislation that it defined for data and media, the legislature did not establish any rule framing how documents and objects seized during a search shall be examined, kept and returned. Consequently, the contested provisions infringe on the right to property.
69. Therefore, the words “documents, object or” appearing in the first Subparagraph of Article L. 229-1, the words “objects, documents and” appearing in the first Subparagraph of Paragraph I of Article L. 229-4 and the words “documents, objects or” and “objects, documents or” appearing respectively in the first and second Subparagraphs of Paragraph I of Article L. 229-5 of the Internal Security Code should be declared unconstitutional.
70. It follows from the foregoing the rest of Article 229-1, the third and tenth Subparagraph of Article 229-2, the rest of the first Subparagraph of Paragraph I of Article 229-4 and the rest of Article 229-5 of the Internal Security Code, which is not tarnished with negative incompetence and does not infringe on the rights of defence, or the right to a fair trial, or any other right or freedom that the Constitution guarantees, should be declared constitutional.
- On the Effects of the Ruling of Unconstitutionality:
71. According to the second subparagraph of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of Article 61−1 is repealed as from the publication of the 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 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 Constitutional Council’s Decision. 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.
72. Firstly, the immediate repeal of the words “based on Article L. 521-2 of the Code of Administrative Justice” appearing in the second sentence of the penultimate Subparagraph of Article L. 228-5 of the Internal Security Code, would have clearly excessive consequences. Indeed, the combination of the suspensive character of recourse with the fact that no time frame is established for the judge to deliver a decision may have the consequence of prohibiting carrying out in due time the decision to renew the prohibition to regularly attend a place. Therefore, in order to enable the legislature to remedy the unconstitutional situation ascertained, it is appropriate to postpone the date of repealing these words until 1 October 2018.
73. Secondly, there are no grounds that justify delaying the effects of the unconstitutional declarations mentioned in Paragraphs 53 and 69. They should take effect from the date of the publication of this decision.
THE CONSTITUTIONAL COUNCIL DECIDES:
Article 1. - There is no reason to decide on the priority matter of constitutionality regarding Article L. 228-2 of the Internal Security Code, in its wording from the Law no. 2017 reinforcing the provisions related to the fight against terrorism;
Article 2. - The following are declared unconstitutional:
- the words ““based on Article L. 521-2 of the Code of Administrative Justice” appearing in the second sentence of the penultimate Subparagraph of Article L. 228-5 and the second sentence of the last Subparagraph of the same Article L. 228-5 of the Internal Security Code, in its wording from the Law no. 2017-1510 of 30 October 2017 reinforcing the provisions related to the fight against terrorism;
- the words “documents, object or” appearing in the first Subparagraph of Article L. 229-1, the words “objects, documents and” appearing in the first Subparagraph of Paragraph I of Article L. 229-4 and the words “documents, objects or” and “objects, documents or” appearing respectively in the first and second Subparagraphs of Paragraph I of Article L. 229-5 of the Internal Security Code, in its same wording.
Article 3. – The following provisions are declared constitutional:
- subject to the reservations established in Paragraphs 27, 33 and 34, the provisions of Article L. 226-1 of the Internal Security Code, in its wording from Law no. 2017-1510 of 30 October 2017 strengthening national security and the fight against terrorism, the words “or to those of the protection perimeters instituted in application of Article L. 226-1” appearing in the sixth Subparagraph of Article L. 511-1, the words “including in the protection perimeters instituted in application of Article L. 226-1” appearing in the first Subparagraph of Article L. 613-1 and the words “or when a protection is instituted in application of Article L. 226-1” appearing in the first sentence of the second Subparagraph of Article L. 613-2 of the same Code, in the same wording of the same Law;
- subject to the reservations established in Paragraphs 51, 52 and 53, the rest of Article L. 228-5 of the Internal Security Code, in its wording from the same Law.
Article 4. – The following provisions are declared constitutional:
- Article L. 227-1 of the Internal Security Code, in its wording resulting from Law no. 2017-1510 of 30 October 2017 reinforcing domestic security and the fight against terrorism;
- Article L. 228-1 of the Internal Security Code, in this same wording;
- the rest of Article L. 229-1, the third and tenth Subparagraph of Article L. 229-2, the rest of the first Subparagraph of Paragraph I of Article L. 229-4 and the rest of Article L. 229-5 of the Internal Security Code:
Article 5. – The declaration of unconstitutionality of Article 2 shall take effect under the conditions set out in Paragraphs 72 to 73 of this decision.
Article 6. – This decision shall be published in the Journal officiel 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 29 March 2018, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Dominique LOTTIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.
Made public on 29 March 2018.
JORF no. 0075 of 30 March 2018 text no. 111