Decision n° 2016-543 priority matter of constitutionality, May 24, 2016 Section française de l'observatoire international des prisons (French Section of the International Prison Observatory)
- 2016
- France
Topics
Public securityLegal bases
France: Code of Criminal Procedure (Code de procédure pénale) France: Prisons Act No. 2009-1436 of 24 November 2009 (LOI n° 2009-1436 du 24 novembre 2009 pénitentiaire)Courts
Constitutional Council (Conseil constitutionnel), FranceLaws
Right to an effective remedy Right to respect for private and family lifeFacts
The Constitutional Council was seized on 24 February 2016 by the Conseil d'Etat (decision No. 395126 of the same day) of a priority constitutionality matter. This question was asked on behalf of the French section of the International Prison Observatory. The applicant association claimed that the provisions infringed the right to an effective judicial appeal, the right to have a normal family life and the right to respect for private life. It also submitted that, by failing to determine sufficiently the guarantees necessary for the protection of those same rights, they are vitiated by a negative incompetence.
Legal grounds
Article 35 of the Prisons Act of 24 November 2009 provides: "The right of detained persons to maintain relations with family members shall be exercised either through visits by family members or, in the case of convicted persons and if their criminal situation allows it, through permission to leave detention facilities”. Article 39 of the Prisons Act of 24 November 2009 provides: "Detainees have the right to call their family members. They may be allowed to call other people to prepare for reintegration. In all cases, defendants must obtain the authorization of the judicial authority”. Access to the telephone may be refused, suspended or pull out on grounds relating to the maintenance of good order, security or offenses prevention and, in the case of accused persons, to the requirements of judiciary process”. Article 145-4 of the Criminal Procedure Code, as amended by the Act of 15 June 2000, provides: "When an accused person is remanded in custody, the investigating judge may order that he or she be prohibited from communicating for a period of ten days. This measure may be renewed, but for a further ten days only. Under no circumstances does the communication ban apply to the accused's lawyer."
Findings
In order to enable the legislator to remedy the unconstitutionality found, the unconstitutionality declaration should be postponed since it should not affect the legislative amendments currently being adopted by Parliament. Consequently, the declaration of unconstitutionality of the words "and, as regards the accused, the information requirements" in the second paragraph of article 39 of the Act of 24 November 2009 and the third and fourth paragraphs of article 145-4 of the Code of Criminal Procedure is postponed until the entry into force of new legislative provisions or, at the latest, until 31 December 2016. Decisions taken under these provisions before that date may not be challenged on the basis of that unconstitutionality.