Decision no. 2011-160 QPC of 9 September 2011

On 15 June 2011 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 from the Cour de Cassation (criminal chamber, judgment no. 3455 of 7 June 2011), raised by Mr Hovanes A., regarding the compatibility of Article 175 of the Code of Criminal Procedure with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Code of Criminal Procedure;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations of the Prime Minister, registered on 7 July 2011;

Having regard to the documents produced and appended to the case files;

Having heard Mr Thierry-Xavier Girardot, appointed by the Prime Minister, at the public hearing on 2 August 2011;

Having heard the Rapporteur;

1. Considering that Article 175 of the Code of Criminal Procedure provides: "As soon as he considers that the investigation is complete, the investigating judge shall send the case file to the Public Prosecutor and shall at the same time inform the parties and their lawyers of this fact, either verbally accompanied by annotation of the case file or by registered letter. If the person is being held in custody this notice may also be served by the prison governor, who shall immediately send the original receipt or its copy signed by the person concerned to the investigating judge.
   "The Public Prosecutor shall present his requests for charges duly supported by reasons to the investigating judge within one month, if the person under investigation is in custody, or in other circumstances within three months. A copy of these requests for charges shall be sent to the parties' lawyers by registered letter.
   "The parties shall be granted the same time limit of one month or three months from the dispatch of the notice provided for under the first subparagraph to submit their written observations to the investigating judge in accordance with the procedures set forth in the second-last subparagraph of Article 81. A copy of these observations shall be sent at the same time to the Public Prosecutor.
   "Within the same time limit of one month or three months, the parties may formulate questions or present requests in accordance with Articles 81, subparagraph nine, 82-1, 156, subparagraph one, and 173, subparagraph three. Upon expiry of this time limit, they shall no longer be entitled to formulate such questions or present such requests.
   "Upon expiry of the time limit of one month or three months, the Public Prosecutor and the parties shall be allowed a time limit of ten days, if the person under investigation is in custody, or in other circumstances of one month, to present supplementary requests for charges or observations to the investigating judge, having regard to the observations or requests for charges which were notified to them.
   "Upon expiry of the time limit of ten days or one month provided for under the previous subparagraph, the investigating judge may adopt an order concluding the procedure, even if he has not received the requests for charges or observations within the requisite time limit.
   "The first, third and fifth subparagraphs and, in cases involving requests for annulment, the fourth subparagraph of this Article shall also apply to witnesses assisted by advisors.
   "The parties may waive their rights to benefit from the time limits provided for under this Article in the presence of their lawyer or such a lawyer as has been duly summoned";

2. Considering that, according to the applicant, in providing that the copy of the definitive requests for charges of the Public Prosecutor only be sent to the parties' lawyers, the second phrase of the second subparagraph of Article 175 of the Code of Criminal Procedure violates the right to a fair trial and the rights to a defence of parties who are not assisted or represented by a lawyer;

3. Considering that the application for a priority preliminary ruling on the issue of constitutionality concerns the second phrase of the second subparagraph of Article 175 of the Code of Criminal Procedure;

4. Considering that pursuant to Article 6 of the 1789 Declaration of the Rights of Man and the Citizen, the law "must be the same for all, whether it protects or punishes"; that Article 16 provides that: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; that whilst Parliament may provide for procedural rules which differ depending upon the circumstances, the situations and persons to which they apply, this is conditional upon the requirement that the differences not create any unjustified distinctions and that equal guarantees be afforded to the parties to the trial, in particular as regards the principle of the right to make representations and respect for the right to a defence;

5. Considering that Articles 80-2, 80-3 and 116 of the Code of Criminal Procedure guarantee the right of individuals under investigation and the civil claimants to be assisted by a lawyer during the preliminary investigation stage, as the case may be appointed ex officio; that however, since the parties are at liberty to choose whether they wish to be assisted by a lawyer or to defend themselves, the requirement to respect the right to make representations and the right to a defence prevent the investigating judge from concluding the investigation stage unless all of the parties have been informed of the requests made by the public prosecutor upon conclusion of the investigation; that, in the second phrase of the second subparagraph of Article 175 of the Code of Criminal Procedure, the words: "lawyers of" have the effect of reserving entitlement to receive notice of the definitive requests for charges of the public prosecutor to the lawyers assisting the parties; that accordingly, they must be ruled unconstitutional;

6. Considering that this declaration of unconstitutionality shall take effect from the date of publication of this decision; that it shall first apply to all proceedings in which requests for charges are issued by the Public Prosecutor after publication of this decision; that secondly, in proceedings which have not been definitively concluded on that date, it may only be relied on by parties who were not represented by a lawyer at the time the order concluding the investigation was issued, provided that the said order adversely affected them;

7. Considering that the remainder of the second phrase of the second subparagraph of Article 175 of the Code of Criminal Procedure does not violate any right or freedom guaranteed by the Constitution,

HELD :

Article 1.- In the second phrase of the second subparagraph of Article 175 of the Code of Criminal Procedure, the words: "lawyers of" are unconstitutional.

Article 2.- The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions set down by its recital 6.

Article 3.- The remainder of the second phrase of the second subparagraph of Article 175 of the Code of Criminal Procedure is constitutional.

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

Deliberated by the Constitutional Council in its session of 8 September 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 9 September 2011.