Decision no. 2018-744 QPC of 16 November 2018

On 11 September 2018, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (criminal division, case no. 2090 of the same date). This application was made on behalf of Murielle B. by SCP Piwnica et Molinié, Attorney for the Conseil d'État and for the Cour de Cassation. It was registered by the general secretariat of the Constitutional Council under no. 2018-744 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees in Articles 1, 5, 7, 8, 9 and 10 of Ordinance No. 45-174 of 2 February 1945 relating to juvenile delinquency “in their formulation in effect in 1984, the time of the events in question.”

Having regard to the following texts:

• the Constitution;
• Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• the Code of Criminal Procedure;
• Ordinance No. 45-174 of 2 February 1945, relating to juvenile delinquency;
• Act No. 51-687 of 24 May 1951, modifying the Ordinance of 2 February 1945, relating to juvenile delinquency;
• Act No. 74-631 of 5 July 1974 establishing the age of eighteen as the age of majority;
• the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;

Considering the following documents:

• the observations on behalf of the applicant by SCP Piwnica et Molinié, registered on 28 September and 17 October 2018;
• the observations on behalf of Jean-Marie V. and Christine B. née V., defendants, by SCP Waquet, Farge, Hazan, Attorney at the Conseil d'État and at the Cour de Cassation, registered on 3 October 2018;
• the observations of the Prime Minister, registered on 3 October 2018;
• the documents produced and appended to the case files;
  After having heard Emmanuel Piwnica, Attorney at the Conseil d'État and at the Cour de Cassation, on behalf of the applicant, Claire Waquet, Attorney at the Conseil d'État and at the Cour de Cassation, for the defendants, and Philippe Blanc, appointed by the Prime Minister, at the public hearing of 23 October 2018;

Having regard to the following documents:

• post-hearing submission [note en délibéré] of the Prime Minister, registered on 29 October 2018;
• post-hearing submission [note en délibéré] on behalf of the applicant by SCP Piwnica et Molinié, registered on 31 October 2018;

And after having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. The application for a priority preliminary ruling on constitutionality must be considered as relating to the provisions applicable to the legal dispute at the moment in which the application was made. Therefore, a referral to the Constitutional Council is made for Articles 1, 5, 7, 8 and 9 of the aforementioned Ordinance of 2 February 1945, in their formulation resulting from the aforementioned Act of 5 July 1974, and of Article 10 of the same Ordinance, in its formulation resulting from the aforementioned Act of 24 May 1951.
2. Article 1 of the Ordinance of 2 February 1945, in this formulation, provides that:
   “Minors accused of an offence qualified as a felony or a misdemeanour will not be referred to ordinary criminal courts, and can only be tried in juvenile courts or by the juvenile assize courts.
   “Those accused of a petty offence of the 5th class before a police court are referred to juvenile courts under the conditions provided for in Article 20-1.”
3. Article 5 of the Ordinance of 2 February 1945, in this same formulation, provides that:
   “No prosecution can be carried out, concerning a felony, against minors without prior notice.
   “In cases of misdemeanours, the district prosecutor will refer to either the investigating judge, or by motion to the juvenile court judge and, in Paris, the president of the juvenile court.
   “Under no circumstances can prosecutions via flagrante delicto procedures or via direct summons be carried out against the minor.”
4. Article 7 of the Ordinance of 2 February 1945, in this same formulation, provides that:
   “The district prosecutor for the seat of the juvenile court is charged with prosecuting felonies and misdemeanours committed by minors.
   “However, the district prosecutor, who has jurisdiction under Articles 43 and 696 of the Code of Criminal Procedure, and the investigating judge requested by said district prosecutor or acting ex officio in accordance with the provisions of Article 72 of the same Code, will carry out all urgent acts of prosecution and information, it being their responsibility to immediately notify the district prosecutor for the seat of the juvenile court and to decline jurisdiction for the case as soon as possible.
   “When the minor is involved in the same case as one or several adults, the minor will be tried according to the provisions of the preceding section concerning urgent acts of prosecution and information. If the district prosecutor prosecutes adults via flagrante delicto procedures or via direct summons, they will construct a special file concerning the minor and will transmit it to the district prosecutor for the seat of the juvenile court. If an investigation has been opened, the investigating judge will decline jurisdiction in the case as soon as possible, concerning both the minor and the accused adults, referring it to the investigating judge for the seat of the juvenile court.”
5. Article 8 of the Ordinance of 2 February 1945, in this same formulation, provides that:
   “The juvenile court judge will carry out all useful measures and investigations to ascertain the truth and know the personality of the minor, as well as the appropriate measures necessary for their rehabilitation.
   To that end the judge will carry out an inquiry, either unofficially, or as provided for in Chapter 1 of Title III of Book 1 of the Code of Criminal Procedure. In the latter case, the judge will not be obliged to observe the provisions of Articles 114, 116 (section 1) and 118 of said Code.
   “The judge may award any required mandates or order judicial supervision in compliance with ordinary law, subject to the provisions of Article 11.
   “The judge will collect, via an inquiry into the minor's welfare, information on the material and moral situation of the family, on the character of the minor's past, on their school attendance, their attitude at school, and the conditions under which they lived or were raised.
   “The juvenile court judge will order a medical examination and, if necessary, a medical-psychological examination. The judge will decide, if necessary, on placing the minor in a reception centre or a juvenile observation centre.
   “However, the judge can, in the interests of the minor, choose not to order any of these measures or to order only one of the two. In this case, the judge will provide justification for the order.
   “With these measures completed, the juvenile court judge can either systematically, or on a motion from the public prosecutor, transfer the file to the latter.
   “The judge may then:
   “1° By order, refer the minor to the juvenile court or, as required, to the investigating judge;
   “2° By a ruling issued in chambers, either to drop the proceedings against the minor, if the judge esteems that the commission of the offence has not been established, or admonish the minor, or return the minor to their parents, guardian, the person having custody of them, or to a responsible person by recommending, if applicable, that the minor be placed under supervision [a special juvenile form of probation, liberté surveillée] until an age that will not exceed their age of majority.
   “The judge may, prior to ruling on the substance of the case, order that the minor be placed under provisional supervision in order to make a decision after one or several trial periods, for which the judge will establish the duration.”
6. Article 9 of the Ordinance of 2 February 1945, in this same formulation, provides that:
   “The investigating judge will act for the minor as provided for in Chapter 1 of Title III of Book 1 of the Code of Criminal Procedure, and will order the measures provided for in sections 4, 5, and 6 of Article 8 of this ordinance.
   “Once the investigation is completed, the investigating judge, on referral of the district prosecutor, will make one of the following orders.
   “1° Either a discharge order;
   “2° Or, if the judge esteems that the evidence constitutes a petty offence, a referral order to the police court or, if it is a petty offence of the 5th class, to the juvenile court judge or to the juvenile court;
   “3° Or, if the judge esteems that the evidence constitutes a misdemeanour, a referral order to the juvenile court judge or to the juvenile court;
   “4° In the case of a felony, either a referral order to the juvenile court if the minor is sixteen years of age, or, in the case provided for in Article 20, the order of transmission of evidence to the public prosecutor, as provided for in Article 181 of the Code of Criminal Procedure.
   “If the minor has adult co-offenders or accomplices, the latter will be, in the case of criminal prosecutions for misdemeanours, referred to the competent jurisdiction according to ordinary law; the case concerning the minor will be severed to be judged according to the provisions of this ordinance. In the case of prosecution for offences that qualify as felonies, actions for all accused parties will be according to the provisions of Article 181 of the Code of Criminal Procedure; the indictments division can either refer all of the accused parties at least sixteen years of age to the juvenile assize court, or sever the prosecutions concerning the adults and refer those to the general assize court; the minors of less than sixteen years of age will be referred to the juvenile court.
   “The decision will be formulated as provided for in ordinary law.
   “If referred to the juvenile assize court, the indictments division may issue an arrest warrant against the accused minors.”
7. Article 10 of the Ordinance of 2 February 1945, in this same formulation, provides that:
   “The juvenile court judge and the investigating judge will inform the parents, guardian or known person having custody of the minor of the prosecution. In the absence of a choice of a defender by the minor or their legal representative, the judges will designate a defender or have one designated by the president of the bar. If the child was adopted as a ward of the State or if they have a right to such an adoption according to applicable legislation, the judges will immediately advise the president of the permanent section of the departmental office of wards of the State.
   “They may delegate the inquiry into the minor's welfare to social services or individuals that have a social service diploma that are qualified for such missions.
   “The juvenile court judge and the investigating judge may temporarily place the minor:
   “1° With their parents, guardian, or the person who had custody of them, or a responsible person;
   “2° In a reception centre;
   “3° In a section of a public or private institution designed to receive minors;
   “4° With child welfare services or to a hospital facility;
   “5° To a qualified establishment or institution providing education, professional training or care, whether run by the State or by a public administration.
   “If they esteem that the physical or psychological state of the minor justifies close observation, they can order that the minor be temporarily placed in an observational centre that is established or approved by the Ministry of Justice.
   “The temporary detention can, if necessary, be carried out under the supervision system [régime de liberté surveillée].
   “The detention measure is always revocable.”
8. The applicant maintains that the aforementioned provisions violate the presumption of innocence and the defendant's rights guaranteed by Articles 9 and 16 of the Declaration of Human and Civic Rights of 1789, as well as the fundamental principle upheld by the laws of the Republic in terms of justice for minors, since they allow, in an investigation, for a minor to be placed in police detention without the minor benefiting from the necessary guarantees in terms of respect of their rights, specifically the right to the assistance of an attorney, the notification of the right to remain silent, and the right to inform their legal representative.
9. Consequently, the application for a priority preliminary ruling on the issue of constitutionality is focused on the words “or as provided for in Chapter 1 of Title III of Book 1 of the Code of Criminal Procedure” located in the first sentence of the second section of Article 8 of the Ordinance of 2 February 1945, and on the words “will act for the minor as provided for in Chapter 1 of Title III of Book 1 of the Code of Criminal Procedure, and” located in the first section of Article 9 of this same Ordinance.

• In substance:

10. According to Article 7 of the Declaration of Human and Civic Rights of 1789: “No man may be accused, arrested or detained except in the cases determined by the Law, and following the procedure that it has prescribed. Those who solicit, expedite, carry out, or cause to be carried out arbitrary orders must be punished; but any citizen summoned or apprehended by virtue of the Law, must give instant obedience; resistance makes him guilty.” According to its Article 9: “As every man is presumed innocent until he has been declared guilty, if it should be considered necessary to arrest him, any undue harshness that is not required to secure his person must be severely curbed by Law.” Its Article 16 provides that: “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.”
11. It is the legislator's responsibility to ensure the reconciliation between detecting offenders, which is necessary for preserving rights and principles of constitutional value, and the exercise of freedoms guaranteed by the Constitution. These include respecting the defendant's rights, from Article 16 of the Declaration of Human and Civic Rights of 1789, and the constitutional requirements protected by Article 9 of that same Declaration.
12. Attenuating the criminal responsibility of minors according to their age, as well as the need to aim to rehabilitate juvenile delinquents in terms of education and morality using measures that are appropriate to their age and their personality, decided by a specialised jurisdiction or using appropriate procedures, were aims that have been consistently acknowledged by the laws of the Republic since the beginning of the twentieth century. These principles are embodied in the Act of 12 April 1906 on criminal majority of minors, the Act of 22 July 1912 on the juvenile courts, and the Ordinance of 2 February 1945 on juvenile delinquency. However, legislation of the Republic prior to the Constitution of 1946 coming into effect does not provide a rule by which coercive measures or penalties should always be avoided in favour of purely educational measures. Specifically, the original provisions of the Ordinance of 2 February 1945 did not rule out criminal responsibility of minors and did not exclude, if deemed necessary, that minors be subject to measures such as placement, monitoring, restraint or, for minors over the age of thirteen, detention. Such is the scope of the fundamental principle recognised by the laws of the Republic in terms of justice for minors.
13. According to the disputed provisions of Article 8 of the Ordinance of 2 February 1945, when the juvenile court judge receives a referral from the district prosecutor to investigate the wrongful acts committed by a minor, the judge carries out an inquiry as provided for in Chapter 1 of Title III of Book 1 of the Code of Criminal Procedure. According to the disputed provisions of Article 9 of the same Ordinance, the investigating judge acts in the same manner when receiving a referral of criminal or wrongful acts committed by a minor.
14. Pursuant to the then applicable Article 154 of the Code of Criminal Procedure, which is located in Chapter 1 of Title III of Book 1 of this Code, a judicial police officer may, as part of an investigative procedure, hold a person for twenty-four hours, after which the person must be brought before the investigating judge. Police detention may be extended, as decided by this judge, for a period of twenty-four hours. Pursuant to Article 64, which refers to Article 154, the person detained in police custody has the right to a medical exam should the detention be extended.
15. However, on the one hand, the rule of law then applicable did not provide for any other legal guarantee to ensure that the rights of the person in police detention, specifically defendant's rights, are respected, whether that person is an adult or not. On the other hand, no legislative provision provided for an age under which a minor may not be placed in police detention.
16. It follows from the foregoing that the disputed provisions allowed for any minor to be placed in police detention for a period of twenty-four hours, with an option for renewal of that period, with only the right to a medical exam if the measure was extended. Therefore, on the one hand, the legislator, who did not ensure a balanced reconciliation between detecting offenders and the exercise of freedoms guaranteed by the Constitution, has violated Articles 9 and 16 of the Declaration of Human and Civic Rights of 1789. On the other hand, the legislator then violated the fundamental principle recognised by the laws of the Republic in terms of justice for minors.
17. Consequently, the words “or as provided for in Chapter 1 of Title III of Book 1 of the Code of Criminal Procedure” located in the first sentence of the second section of Article 8 of the Ordinance of 2 February 1945, and the words “will act for the minor as provided for in Chapter 1 of Title III of Book 1 of the Code of Criminal Procedure, and” located in the first section of Article 9 of this same Ordinance must be declared unconstitutional.

• Concerning the effects of the declaration of unconstitutionality:

18. According to the second section of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of Article 61-1 shall be repealed as of the publication of the said decision of the Constitutional Council or as of a subsequent date determined by said decision. The Constitutional Council shall determine the conditions and the limits according to which the effects produced by the provision shall be liable to challenge.” In principle, the declaration of unconstitutionality must benefit the person who brought the application for a priority preliminary ruling on the issue of constitutionality, and the provision declared unconstitutional may not be applied in the proceedings under way on the date of the publication of the decision of the Constitutional Council. However, the provisions of Article 62 of the Constitution maintain the right for the latter both to set the date of the repeal and to postpone its effects, and allowing for challenging the effects that the provision produced before the declaration was made.
19. In this case, no motive justifies postponing the entry into effect of the declaration of unconstitutionality. The declaration will therefore take effect on the date of publication of this decision. It is applicable to all cases not definitively decided on that date.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. The words “or as provided for in Chapter 1 of Title III of Book 1 of the Code of Criminal Procedure” located in the first sentence of the second section of Article 8, and the words “will act for the minor as provided for in Chapter 1 of Title III of Book 1 of the Code of Criminal Procedure, and” located in the first section of Article 9 of Ordinance No. 45-174 of 2 February 1945 relating to juvenile delinquency, in their formulation resulting from Act No. 74-631 of 5 July 1974 establishing the age of eighteen as the age of majority, are unconstitutional.

Article 2. - The declaration of unconstitutionality of Article 1 becomes effective according to the conditions of paragraph 19 of this decision.

Article 3. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned Ordinance of 7 November 1958.

Ruled by the Constitutional Council in its 15 November 2018 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Jean-Jacques HYEST, Lionel JOSPIN, Dominique LOTTIN, Nicole MAESTRACCI and Michel PINAULT.

Published on 16 November 2018.