Decision no. 2011-192 QPC of 10 November 2011

On 6 September 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 raised by the Cour de Cassation (Criminal Division, judgment no. 4683 of 31 August 2011) on behalf of Ms Ekaterina B., spouse of D., Messrs Andriy M. and Steven D., Ms Catherine D., Ms Laurie D., Ms Magali D., Ms Morgan D., Ms Romane D., Ms Claire−Andrée C., widow of L., Ms Émilie L., spouse of B., Mr Guillaume L., Ms Sandrine L., spouse of A., Ms Gisèle L., Ms Julie L. , spouse of S., Ms Sandrine L., Messrs Alois B. and Martin S., Ms Élodie L., Mr Éric L., Ms Sandrine N., spouse of L., Ms Évelyne L., Ms Mahona L., Ms Noa R., Ms Pauline L., Ms Caroline L., Mr Guillaume L., Ms Pascale L., Ms Sophie S., Ms Odile S., Ms Georgette P., Messrs Frédéric L., Christophe P., Pierre P., Gilles S., Antoine S., Gilbert E., Matthieu E. and Claude E., Ms Marine E., Ms Isabelle E., Messrs Jérôme E. and Édouard E. and Ms Pierrette E., raising the conformity of Articles 413−9 to 413−12 of the Criminal Code, L. 2311−1 to L. 2312−8 of the Defence Code and 56−4 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, containing the basic law on the Constitutional Council;

Having regard to the Defence Code;

Having regard to the Criminal Code;

Having regard to the Code of Criminal Procedure;

Having regard to Law no. 98−567 of 8 July 1998 establishing a Consultative Commission on national defence secrets;

Having regard to Law no. 2008-1425 of 27 December 2008 on finance, amended for 2009;

Having regard to Law no. 2009−928 of 29 July 2009 on military planning for the years 2009 to 2014 and laying down miscellaneous provisions relating to defence;

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 filed on behalf of Ms Ekaterina B., spouse of D., Messrs Andriy M. and Steven D., Ms Catherine D., Ms Laurie D., Ms Magali D., Ms Morgan D., Ms Romane D., Ms Claire−Andrée C., widow of L., Ms Émilie L., spouse of B., Mr Guillaume L., Ms Sandrine L., spouse of A., Ms Gisèle L., Ms Julie L., spouse of S., Ms Sandrine L., Messrs Alois B. and Martin S. by Esq. Olivier Morice, Attorney at the Paris bar, registered on 23 September and 11 October 2011;

Having regard to the observations filed on behalf of Ms Élodie L., Mr Éric L., Ms Sandrine N., spouse of L., Ms Évelyne L., Ms Mahona L., Ms Noa R., Ms Pauline L., Ms Caroline L., Mr Guillaume L. and Ms Pascale L. by the SCP Boré et Salvé de Bruneton, Attorney at the Conseil d'État and the Cour de Cassation, registered on 23 September and 11 October 2011;

Having regard to the observations filed on behalf of Ms Sophie S., Ms Odile S., Ms Georgette P. and Messrs Frédéric L., Christophe P., Pierre P., Gilles S. and Antoine S. by Esq. Thibault de Montbrial, Attorney at the Paris bar, registered on 28 September and 14 October 2011;

Having regard to the observations filed on behalf of Messrs Gilbert E., Matthieu E. and Claude E., Ms Marine E., Ms Isabelle E., Messrs Jérôme E. and Édouard E. and Ms Pierrette E. by Esq. Patrice Spinosi, Attorney at the Conseil d'État and the Cour de Cassation, registered on 28 September and 14 October 2011;

Having regard to the observations filed on behalf of SA DCN International by the SCP Waquet−Farge−Hazan registered on 29 September 2011;

Having regard to the observations filed on behalf of the Fédération des établissements et arsenaux de l'Etat FEAE CFDT [Federation of State Establishments and Munitions Facilities] by the SCP H. Masse−Dessen and G. Thouvenin, registered on 29 September 2011;

Having regard to the observations of the Prime Minister, registered on 29 September 2011;

Having regard to the supplementary observations of the Prime Minister upon request by the Constitutional Council for the purposes of investigation, registered on 14 October 2011;

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

Having heard Esq. Olivier Morice, Esq. Louis Boré, Esq. Spinosi and Esq. de Montbrial for the applicants, Esq. Claire Waquet for SA DCN International and Esq. Hélène Masse−Dessen for the Fédération des établissements et arsenaux de l'État FEAE CFDT, and Mr Thierry−Xavier Girardot, appointed by the Prime Minister, at the public hearing of 19 October 2011;

Having heard the Rapporteur;

1. Considering that Article L. 413-9 of the Criminal Code provides: "The quality of national defence secrets, for the purposes of this section, attaches to processes, objects, documents, information, computer networks, electronic data or files which are of importance to national defence and which are subject to protective orders intended to restrict their circulation or access.
   "The object of such orders may be processes, objects, documents, information, computer networks, electronic data or files the disclosure of or access to which is likely to prejudice the national defence or could lead to the disclosure of a national defence secret.
   "A decree of the Conseil d'Etat shall provide for the levels of classification of processes, objects, documents, information, computer networks, electronic data or files of a national defense secrets nature and the authority responsible for laying down the procedures according to which their protection shall be organised";

2. Considering that pursuant to Article 413−9−1 of the same Code: "Only such areas which cannot be accessed without such access resulting in the disclosure of a national defence secret due to the installations or the operations which they accommodate may be classified as a national defence secret.
   "The classification decision shall be adopted for a five years term by order of the Prime Minister, which shall be published in the Official Journal after obtaining the opinion of the Consultative Commission on national defence secrets.
   "The conditions for applying this Article, including the conditions governing areas classification, shall be determined by decree of the Conseil d'État";

3. Considering that pursuant to Article 430-10 of the same Code: "Any person who, because of his position or occupation or any permanent or temporary mission, holds a process, object, document, information, computer network, electronic data or file with the status of a national defence secret or destroys, misappropriates, steals or copies such materials, or grants access to an unauthorised person or brings it to the attention of the general public or an unauthorised person shall be punished by seven years' imprisonment and a fine of €100,000.
   "Any holder who permits such processes, objects, documents, information, computer networks, electronic data or files falling under the previous subparagraph to be accessed, destroyed, misappropriated, stolen, copied or disclosed shall be subject to the same punishment.
   "If the holder has behaved recklessly or negligently, the offence shall be punished by three years' imprisonment and a fine of € 45,000";

4. Considering that pursuant to Article 413−10−1 of the same Code: "Any person who, because of his position or occupation or any permanent or temporary mission, is responsible for an area classified as a national defence secret and has granted access to an unauthorised person shall be punished by seven years' imprisonment and a fine of €100,000.
   "Any authorised person who brings to the attention of the general public or an unauthorised person any information relating to the nature of the installations or the operations accommodated at such a place shall be subject to the same punishment.
   "If the responsible person has behaved recklessly or negligently, the offence shall be punished by three years' imprisonment and a fine of € 45,000";

5. Considering that Article L. 413-11 of the Criminal Code provides: " A punishment of five years' imprisonment and a fine of €75,000 shall apply to any person not covered by article 413-10 who:
   "1. acquires possession of or access to any process, object, document, information, computer network, electronic data or file of national defence secret nature;
   "2. destroys, misappropriates or copies in any manner whatsoever any such process, object, document, information, computer network, electronic data or file;
   "3. brings any such process, object, document, information, computer network, electronic data or file to the attention of the general public or an unauthorised person";

6. Considering that pursuant to Article 413−11−1 of the same Code: "A punishment of five years' imprisonment and a fine of €75,000 shall apply to any unauthorised person who:
   "1. gains access to an area classified as a national defence secret;
   "2. brings information relating to the nature of the installations or the operations accommodated at such a place to the attention of the general public or an unauthorised person";

7. Considering that pursuant to Article 430-12 of the same Code: "Any attempts to commit the offences provided for under the first subparagraph of Article 413−10 and Article 413−11 shall be subject to the same punishment";

8. Considering that pursuant to Article L. 2311−1 of the Defence Code: "The rules applicable to the definition of the information falling under the provisions of this chapter shall be determined by Article 413−9 of the Criminal Code";

9. Considering that pursuant to Article L. 2312−1 of that Code: "The Consultative Commission on national defence secrets is an independent administrative authority. It is responsible for providing an opinion on the declassification and disclosure of information which has previously been classified pursuant to the provisions of Article 413−9 of the Criminal Code, except in relation to information which has not been classified solely in accordance with rules for classification issued by the French authorities.
   "An opinion shall be provided by the Consultative Commission on national defence secrets if requested by a French court.
   "The Chairman of the Consultative Commission on national defence secrets or his representative, who must be a member of the Commission, shall be responsible for issuing an opinion concerning temporary declassification following a request by a magistrate to search areas which have been classified";

10. Considering that pursuant to Article L. 2312-2 of that Code: "The Consultative Commission on national defence secrets is comprised of five members:
    "1. A chairman, a vice-chairman who replaces the former in cases involving absence or impediment and a member chosen by the President of the Republic from a list of six members of the Conseil d'État, the Cour de Cassation or the Cour des Comptes [Court of Accounts], drawn up jointly by the vice-president of the Conseil d'État, the first president of the Cour de Cassation and the first president of the Cour des Comptes;
    "2. A deputy, appointed for the term of the legislature by the president of the National Assembly;
    "3. A senator, appointed after each partial renewal of the Senate by the President of the Senate.
    "The mandate of the Commission members is non-renewable.
    "The mandate of the non-parliamentary members of the commission shall last for six years.
    "Except in the event of resignation, the appointment of a member of the Commission cannot be ended other than in cases involving an impediment as determined by the Commission. The members of the Commission appointed as replacements for those whose mandate has ended prior to its natural expiry shall be appointed for the remaining term of the said mandate. Notwithstanding subparagraph five, if they were appointed less than two years prior to the natural expiry of their predecessor's mandate, they may be re-appointed as members of the Commission";

11. Considering that pursuant to Article L. 2312-3 of that Code: "The funds necessary for the Commission in order to accomplish its mission shall be registered under the programme for the mission 'Direction of government action' relating to the protection of fundamental rights and freedoms.
    "The Chairman shall oversee the Commission's expenses. He shall appoint the Commission's agents";

12. Considering that pursuant to Article L. 2312-4 of that Code: "A French court may request the administrative authority responsible for classification to declassify and disclose information which is protected as a national defence secret in relation to proceedings initiated before it.
    "Such requests shall be supported by reasons.
    "The administrative authority shall refer the matter without delay to the Consultative Commission on national defence secrets.
    "For purposes of search, a magistrate may request the chairman of the Commission to temporarily declassify areas protected as a national defence secret in relation to proceedings initiated before him.
    The Chairman shall be apprised of the matter and shall provide his opinion to the administrative authority responsible for declassification subject to the conditions provided for under Article 56−4 of the Code of Criminal Procedure";

13. Considering that pursuant to Article L. 2312-5 of that Code: "The Chairman of the Commission may carry out any investigations which may be useful.
    "The members of the Commission are authorised to receive any classified information and to gain access to any classified area in relation to their mission.
    "They shall be bound by a duty to uphold national defence secrets protected pursuant to Articles 413−9 et seq of the Criminal Code in relation to the facts, acts or information which may come to their attention when performing their duties.
    "Notwithstanding the provisions of Articles 56 and 97 of the Code of Criminal Procedure, when fulfilling its mission, the Commission or the Chairman if appointed by the former shall be authorised to remove seals on the classified materials which are submitted to him. The Commission shall refer to this in the minutes of its sessions. The documents shall be returned by the Commission to the administrative authorities along with its opinion.
    "The Commission shall determine its internal regulations";

14. Considering that pursuant to Article L. 2312-6 of that Code: "Ministers, public authorities and public officials may not oppose the Commission's actions on any grounds whatsoever and shall take all action in order to facilitate its work";

15. Considering that pursuant to Article L. 2312-7 of that Code: "The Commission shall issue an opinion within two months from the time it is apprised of the matter. This opinion shall take into account the judicial system's duty of public service, the respect for the presumption of innocence and the rights of the defence, the respect for France's international commitments as well as the need to maintain defence capabilities and staff security.
    "If there is a tie, the Chairman shall have the casting vote.
    "The opinion may recommend full declassification, partial declassification or may refuse the request.
    "The Commission's opinion shall be transmitted to the administrative authority which classified the material";

16. Considering that pursuant to Article L. 2312−7−1 of that Code: "The opinion issued by the Chairman of the Consultative Commission on national defence secrets regarding the declassification of an area for the purposes of a search, which may recommend full declassification, partial declassification or refuse the request, shall take into account the elements referred to in the first subparagraph of Article L. 2312−7";

17. Considering that pursuant to Article L. 2312-8 of that Code: "The administrative authority shall serve its decision, adopted in accordance with the opinion, on the magistrate who requested declassification along with the classified information within a period of fifteen full days from receipt of the Commission's opinion, or upon expiry of a period of two months pursuant to Article L. 2312−7.
    "The position adopted in the Commission's opinion shall be published in Journal Officiel of the French Republic";

18. Considering that Article 56−4 of the Criminal Procedure Code provides: "I. If it is intended to carry out a search in a clearly identified area accommodating materials classified as national defence secrets, the search may only be carried out by a magistrate in the presence of the Chairman of the Consultative Commission on national defence secrets. The Chairman may be represented by a member of the Commission or by delegates duly granted clearance relating to national defence secrets, as appointed by him in accordance with the procedures to be determined by decree of the Conseil d'État. The Chairman or his representative may be assisted by any person with clearance to that effect.
    "The list of the areas falling under the first subparagraph shall be drawn up in a precise and limited manner by decision of the Prime Minister.
    This list, which shall be regularly updated, shall be communicated to the Consultative Commission on national defence secrets as well as to the Minister of Justice, who shall make it available to magistrates in a secure manner. The magistrate shall ascertain whether the place in which he wishes to carry out a search is included in this list.
    "The conditions governing the delimitation of places accommodating materials covered by national defence secrets shall be determined by decree of the Conseil d'État.
    "Any concealment in the areas falling under the previous subparagraph of non-classified processes, objects, documents, information, computer networks, electronic data or files resulting from an attempt to subject them to the protection associated with national security secrets shall expose the person taking such action to the punishments provided for under Article 434−4 of the Criminal Code.
    "The search may only be carried out in accordance with a written decision by a magistrate which provides the Chairman of the Consultative Commission on national defence secrets with useful information in order to accomplish its mission.
    The Chairman of the Commission or his representative shall visit the areas without delay. At the start of the search, the magistrate shall inform the Chairman of the Commission or his representative as well as the head of the establishment or his appointee, or the person responsible for the area, of the nature of the offence or offences to which the investigations relate, the reasons justifying the search and the areas affected by the search.
    "Only the Chairman of the Consultative Commission on national defence secrets, his representative or, if appropriate, the persons accompanying him may gain access to the classified materials discovered at those places. Out of the classified materials, the magistrate may only gain access to the materials relating to the offences to which the investigations relate. If investigative requirements justify consultation of the original versions of the classified materials, copies shall be provided to their holder.
    "After an inventory has been taken by the Chairman of the Consultative Commission, each item of classified material shall be placed under seal. The sealed items shall be handed over to the Chairman of the Consultative Commission on national defence secrets, who shall be responsible for safeguarding them. The operations relating to the seized classified material as well as the inventory of these items shall be detailed in a report which is not appended to the case file and shall be kept by the Chairman of the Consultative Commission.
    "The declassification and disclosure of the materials specified in the inventory shall be subject to the procedure provided for under Articles L. 2312−4 et seq of the Defence Code.

" II. If it emerges, during a search, that an area accommodates materials covered by national defence secret, the magistrate at the scene, or who has been informed immediately by an investigating police officer, shall inform the Chairman of the Consultative Commission on national defence secrets. The classified materials shall be placed under seal, may not be consulted by the magistrate or the investigating police officer who discovered them, and shall be handed over or transmitted by any means to the Chairman of the Commission, in accordance with the regulations applicable to national defence secrets, in order that he may ensure their safeguarding. The operations relating to classified materials shall be detailed in a report which is not appended to the case file. "The declassification and disclosure of the materials thereby placed under seal shall be subject to the procedure provided for under Articles L. 2312−4 et seq of the Defence Code.

" III. If it is intended to carry out a search in an area classified as a national defence secret pursuant to the conditions specified under Article 413−9−1 of the Criminal Code, it may only be carried out by a magistrate in the presence of the Chairman of the Consultative Commission on national defence secrets. The latter may be represented by a member of the Commission and may be assisted by any person with clearance to that effect.
"The magistrate shall verify with the Consultative Commission on national defence secrets whether the areas in which he intends to carry out a search have been classified.
"The search may only be carried out in accordance with a written decision supported by reasons specifying the nature of the offence or offences to which the investigations relate, the reasons justifying the search and the areas affected by the search. The magistrate shall transmit that decision to the Chairman of the Consultative Commission on national defence secrets. At the start of the search, he shall show the report to the head of the establishment or his appointee, or the person responsible for the area.
"The search must be preceded by a decision to declassify the areas temporarily for the purposes of the search and may only be carried out subject to the limits of the declassificaiton thus ordered. To this effect, after the Chairman of the Consultative Commission on national defence secrets has been apprised of the decision taken by the magistrate referred to in the previous subparagraph, he shall provide his opinion regarding full or partial temporary declassification of the areas for the purposes of the search to the competent administrative authority without delay. The administrative authority shall announce its decision without delay. The declassification ordered by the administrative authority shall only apply for the duration of the operations. In the event that partial declassification is ordered, the search may only be carried out in the part of the areas covered by the declassification order of the administrative authority.
"The search shall be carried out subject to the conditions provided for under subparagraph six et seq of paragraph I.

" IV. The provisions of this Article shall be decreed as a prerequisite for the validity of any measure";

19. Considering that, according to the applicants, these provisions which relate both to information as well as areas classified on the grounds that they are national defence secrets violate the right to a fair trial and the principle of the separation of powers set forth under Article 16 of the 1789 Declaration of the Rights of Man and the Citizen;

• WITH RESPECT TO THE APPLICABLE PROVISIONS OF THE CONSTITUTION:

20. Considering, on the one hand, that Article 16 of the Declaration of Man and the Citizen of 1789 provides: "A society in which the guarantee of rights is not assured, nor the separation of powers defined, has no constitution at all"; that according to Article 5 of the Constitution, the President of the Republic is the guarantor of national independence and territorial integrity; that according to the first subparagraph of Article 20: "The Government shall determine and conduct the policy of the Nation"; that the principle of the separation of powers applies to the President of the Republic and the Government; that the existence of national defence secrets contributes to safeguarding the fundamental interests of the Nation, reasserted by the Environmental Charter, which include the independence of the Nation and its territorial integrity;

21. Considering on the other hand that Article 16 of the 1789 Declaration implies the requirement to respect the specific nature of the judiciary's functions which may not be encroached upon either by Parliament or the Government, as well as the right of the concerned individuals who apply for judicial legal remedy and the right to a fair trial; that moreover the search for the authors of offences amounts to a constitutional objective which is necessary in order to safeguard rights and principles of constitutional standing;

22. Considering that pursuant to Article 34 of the Constitution, Parliament is competent to determine the rules governing the fundamental guarantees granted to citizens when exercising public freedoms, the constraints imposed on citizens and their property by national defence, the determination of all types of offences as well as the penalties applicable to them and criminal procedure; that both the principle of the separation of powers as well as the existence of other constitutional demands require that he strikes a reasonable balance between the rights of the individuals involved to apply for judicial legal remedy and the right to a fair trial as well as the search for the authors of offences against the constitutional requirements inherent to safeguarding the fundamental interests of the Nation;

• WITH RESPECT TO INFORMATION CLASSIFIED AS NATIONAL DEFENCE SECRET:

23. Considering that Article 413−9 of the Criminal Code defines the information which may be classified as national defence secret; that Articles 413−10, 413−11 and 413−12 of that Code punish breaches of this secret; that Articles L. 2311−1, L. 2312−1, subparagraphs 1 and 2, L. 2312−2, L. 2312−3, L. 2312−4, subparagraphs 1 and 3, L. 2312−5, L. 2312−6, L. 2312−7 and L. 2312−8 of the Defence Code determine the role of the Consultative Commission on national defence secrets in procedures relating to the declassification and disclosure of classified information; that paragraphs I and II of Article 56−4 of the Code of Criminal Procedure lay down the conditions governing access to classified information during searches in areas precisely identified as accommodating materials covered by national defence secret and in areas which are discovered to accommodate materials covered by this secret;

24. Considering that, according to the applicants, by depriving the court of the power and means to make a full assessment of the elements which are decisive for the outcome of the trial and by not providing for judicial legal remedy in order to enable the courts to assess the nature of the classified information, Parliament violated Article 16 of the 1789 Declaration;

As far as the procedure governing the declassification and disclosure of classified information is concerned:

25. Considering that pursuant to Article 413−9 of the Criminal Code, processes, objects, documents, information, computer networks, electronic data or files the disclosure of or access to which is of such a nature as to prejudice national defence or may lead to the discovery of a national defence secret may be subject to a classification order; that the levels of classification and the authorities responsible for defining the procedures according to which the protection of the said information is organised are determined by order of the Conseil d'État; that moreover, Articles 413−10, 413−11 and 413−12 of that Code punish the breach of national security secrets;

26. Considering in the first place that when a court submits a request supported by reasons seeking the declassification and disclosure of protected information from the administrative authority responsible for classification, the latter must appraise without delay the Consultative Commission on national defence secrets; that this Commission issues an opinion within two months starting from the time it was apprised, which takes into account the judicial system's duty of public service, the respect for the presumption of innocence and the rights of the defence, the respect for France's international commitments as well as the need to maintain defence capabilities and staff security; that to this effect, the Chairman of the Commission may carry out any investigations that may be useful and the members of that Commission may gain access to all of the classified information; that the opinion which may recommend full declassification, partial declassification or refuse the request is to be addressed to the administrative authority; that the administrative authority shall serve its decision, adopted in accordance with the opinion, on the court concerned within a period of fifteen full days from receipt of the opinion, or upon expiry of a period of two months after it was apprised of the matter; that moreover, the essential position adopted in this opinion shall be published in the Journal Officiel of the French Republic;

27. Considering secondly that pursuant to Article L. 2312−1 of the Defence Code, the Consultative Commission on national defence secrets is an "independent administrative authority"; that it is comprised of five members, including a chairman, a vice-chairman and a member, all three chosen by the President of the Republic from a list of six members of the Conseil d'État, the Cour de Cassation or the Cour des Comptes, drawn up jointly by the vice-president of the Conseil d'État, the first president of the Cour de Cassation and the first president of the Cour des Comptes, a deputy appointed for the term of the legislature by the president of the National Assembly and a senator appointed by the President of the Senate after each partial renewal of that body; that the term of the mandate of the non-parliamentary members is set at six years; that their mandates are non-renewable; that their appointment can only be ended in cases involving impediment as determined by the Commission; that its autonomy in relation to administrative and financial management is guaranteed; that ministers, public authorities and public officials may not oppose the Commission's actions on any grounds whatsoever and shall take all action in order to facilitate its work;

28. Considering that due to the guarantees of independence of the Commission as well as the conditions and procedures applicable to the declassification and disclosure of classified information, Parliament struck a balance between the aforementioned constitutional requirements which is not unreasonable; that accordingly, the provisions of Article L. 2311−1, the first and second subparagraphs of Article L. 2312−1, Articles L. 2312−2 and L. 2312−3, the first and third subparagraphs of Article L. 2312−4, Article L. 2312−5 and Articles L. 2312−6, L. 2312 7 and L. 2312−8 of the Defence Code, as well as the provisions of Articles 413−9, 413−10, 413−11 and 413−12 of the Criminal Code are not unconstitutional;

With respect to access to classified information during searches:

• With regard to searches in areas clearly identified as accommodating materials covered by national defence secret:

29. Considering that the provisions of paragraph I of Article 56−4 of the Code of Criminal Procedure provide that the Prime Minister shall determine in a limited manner the areas clearly identified as accommodating materials covered by national defence secret; that this list, which is regularly updated, is provided to the Consultative Commission on national defence secrets as well as the Minister of Justice; that it is made available in a secure manner to all the concerned magistrates; that it is clear from the parliamentary business that, in using the expression "clearly identified area", Parliament intended that a building not be designated as a whole or with respect to a category of rooms, but rather a clearly determined part; that a search which is intended to be carried out in a clearly identified area accommodating materials covered by national defence secret does not require any advance authorisation; that the concealment of non-classified information in an attempt to subject it to the protection associated with national security secrets is punished under criminal law;

30. Considering that, under these conditions, whilst Parliament has subjected searches by a magistrate in a clearly identified area as accommodating materials covered by national defence secret to the requirement that the Chairman of the Commission or a representative be present and rejected the possibility of allowing this magistrate to consult classified materials discovered in these areas, he subjected the search procedure to guarantees of such a nature as to ensure that a balance was struck between the aforementioned constitutional requirements which is not unreasonable; that accordingly, the provisions of paragraph I of Article 56−4 of the Code of Criminal Procedure are constitutional;

• With regard to searches in areas found to accommodate materials covered by national defence secret:

31. Considering that the provisions of paragraph II of Article 56−4 of the Code of Criminal Procedure set forth the legal regime applicable to searches during the course of which materials protected by national defence secret are discovered by chance; that should this occur, the magistrate who is present or has been immediately notified by the investigating police officer shall inform the Chairman of the Commission; that such classified material may not be consulted and the magistrate or investigating police officer who discovered them shall place them under seal and hand them over or transfer them by any means to the Chairman of the Commission in order that he may ensure their safeguarding; that a report is drawn up of the operations relating to the classified materials, which is not appended to the case file; that only the Commission or the Chairman if appointed by the former is authorised to open the seals on the classified materials which are submitted to it; that in such a case the Commission shall refer to it in the minutes of its sessions; that finally, the documents shall be returned by the Commission to the administrative authorities along with its opinion;

32. Considering that it follows from these provisions as a whole that searches in areas which are found to accommodate materials covered by national defence secret are afforded appropriate guarantees which make it possible to ensure that a balance is struck between the aforementioned constitutional requirements which is not unreasonable; that accordingly, the provisions of paragraph II of Article 56−4 of the Code of Criminal Procedure are constitutional;

• WITH RESPECT TO AREAS CLASSIFIED AS NATIONAL DEFENCE SECRET:

33. Considering on the one hand that Article 413−9−1 of the Criminal Code authorises the classification of areas which, due to the installations or activities which they accommodate, cannot be accessed without such access resulting in the disclosure of a national defence secret; that it provides that the decision to classify is adopted for a period of five years by order of the Prime Minister published in the Journal Officiel, after obtaining the opinion of the Consultative Commission on national defence secrets; that moreover, Articles 413−10−1 and 413−11−1 of the Criminal Code punish the violation of these provisions relating to classified areas;

34. Considering on the other hand that it follows from the provisions of paragraph III of Article 56−4 of the Code of Criminal Procedure that a search in a classified area may only be carried out by a magistrate in the presence of the Chairman of the Commission; that the latter may be represented by a member of the Commission and assisted by any person with clearance to that effect; that the magistrate shall verify with the Commission whether the place in which he intends to carry out a search has been classified; that should this be the case, this magistrate shall specify in writing in a document supported by reasons the nature of the offence or offences to which the investigations relate, the reasons justifying the search and the areas affected by the search;

35. Considering that searches in a classified area are subject to a decision to declassify the area on a temporary basis; that, if he has been apprised by a magistrate of a request for temporary declassification, the Chairman of the Commission shall provide the competent administrative authority with an opinion relating to this request; that the latter shall deliver his decision without delay; that the declassification ordered by that authority is only valid for the duration of the operations; that in the event that partial declassification is ordered, the search may only be carried out in the part of the areas which is covered by the declassificaiton order of the administrative authorities;

36. Considering that, according to the applicants, in accepting that all evidence located in the classified areas benefits from protection as national defence secrets and in subjecting searches in these areas to the requirement of authorisation by the administrative authority with no provision for judicial review of any decision refusing the magistrate access to these areas, Parliament violated Article 16 of the 1789 Declaration;

37. Considering that the classification of an area has the effect of removing a defined geographical space from the investigative powers of the judicial authority; that it subjects the exercise of these investigative powers to an administrative decision; that all evidence of any kind contained in these areas is not accessible to the courts until that authorisation has been issued; that accordingly, in authorising the classification of certain areas as national defence secrets and subjecting access by a magistrate for the purposes of a search of these areas to the requirement of temporary declassification, Parliament struck a balance between the aforementioned constitutional requirements which is not reasonable; that accordingly, the provisions of paragraph III of Article 56−4 of the Code of Criminal Procedure, Articles 413−9−1, 413−10−1 and 413−11−1 of the Criminal Code, the third subparagraph of Article L. 2312−1, the fourth subparagraph of Article L. 2312−4, Article L. 2312−7−1 of the Defence Code and, consequently, the words: "and to gain access to any classified area" included in the second subparagraph of Article L. 2312−5 of that Code must be ruled unconstitutional;

38. Considering that the second paragraph of Article 62 of the Constitution provides: “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 at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits according to which the effects produced by the provision are subject to revision"; whilst, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect; that in order to enable the administrative authorities to infer the consequences of this unconstitutionality, there are grounds to defer the date of this declaration of unconstitutionality until 1 December 2011

HELD:

Article 1. - The following provisions are unconstitutional:

• paragraph III of Article 56−4 of the Code of Criminal Procedure;
• Articles L. 2312−1, subparagraph 3, L. 2312−4, subparagraph 4, and Article L. 2312−7−1 of the Defence Code;
• in the second subparagraph of Article L. 2312−5 of the Defence Code, the words: "and to gain access to any classified area";
• Articles 413−9−1, 413−10−1 and 413−11−1 of the Criminal Code.

Article 2. - The declaration of unconstitutionality contained in Article 1 shall take effect on 1 December 2011 in the conditions specified in recital 38.

Article 3. - The following provisions are constitutional:

• paragraphs I and II of Article 56−4 of the Code of Criminal Procedure;
• Articles 413−9, 413−10, 413−11 and 413−12 of the Criminal Code;
• the remainder of Articles L. 2312−1, L. 2312−4 and L. 2312−5 of the Defence Code;
• Articles L. 2311−1, L. 2312−2, L. 2312−3, L. 2312−6, L. 2312−7 and L. 2312−8 of the Defence Code.

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

Deliberated by the Constitutional Council in its session on 10 November 2011, sat on by: Mr. Jean−Louis DEBRÉ, President, Mr. Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 10 November 2011.

Journal officiel of 11 November 2011, p 19005 (@ 76)