France: Constitutional Council Strikes Part of Recent Security Law

On May 20, 2021, France’s Conseil constitutionnel (Constitutional Council) struck parts of a domestic security bill that had recently been adopted by the French Parliament.

While the council’s decision upheld most of the bill as constitutional, one of the provisions struck down was a section of the controversial article 52 (formerly referred to as article 24 before some of the provisions were renumbered while the bill was still being discussed by Parliament). Paragraph I of article 52 of the bill would have made it a criminal offense, punishable by up to five years’ imprisonment and a fine of up to 75,000 euros (approximately US$90,900), to provoke a gendarme or police officer participating in a law enforcement operation to identify himself/herself “with the evident goal of causing harm to his/her physical or psychological integrity.” The same punishment would have applied to the act of provoking close family members of a gendarme or police officer to identify themselves for the same nefarious purpose. The Constitutional Council found that this new criminal offense, as defined in article 52, was overly vague and therefore violated article 8 of the Declaration of Human and Civic Rights of 1789, which is incorporated by reference in the preamble of the French Constitution.

Specifically, the council focused on two elements of the definition: the notion of law enforcement operation, and the perpetrator’s intent. With regard to the first, the legislators did not define what constitutes an “operation,” nor did they specify whether the offense would exist only when causing officers to identify themselves during the course of a law enforcement operation or if it also existed when causing officers who had participated in a past law enforcement operation to identify themselves. With regard to the perpetrator’s intent, the Constitutional Council judged that the legislators had failed to specify whether independent evidence of a perpetrator’s intent should be brought or if intent should simply be inferred from the fact that he or she committed the act.

Other Provisions of the Bill Deemed Unconstitutional

The Constitutional Council struck down provisions of the bill that gave some municipal police forces expanded powers. Indeed, article 66 of the French Constitution requires by implication that law enforcement agencies with powers of arrest and investigation be under the direction and supervision of the judiciary. Municipal police forces, however, are under the control of their respective mayors and municipal councils. The law, as drafted, gave municipal police forces some of the same powers as the national police, but failed to place them under the supervision of the judiciary, therefore violating the requirements of article 66 of the Constitution.

The council also struck provisions that determined the conditions under which some government agencies and municipal police forces could process pictures taken by drones. The council judged that the recording and transmission of images by drones could be justified for the purpose of preserving public order and searching for perpetrators of criminal offenses. However, drones are capable of recording and following many people over a very large perimeter and are therefore a potential threat to citizens’ right to privacy. The legislators failed to provide sufficient limits to when, where, or how such images could be recorded, and therefore failed to properly balance the competing constitutional goals of protecting public order and protecting the right to privacy. Similarly, the council struck a provision allowing for the video monitoring of inmates in pretrial detention when they are an escape risk or might harm themselves or others. There too, the council found that video monitoring inmates for these reasons could be constitutionally justified if the measure were properly balanced with the individual right to privacy, but that the legislators had failed to properly balance the two competing obligations in this law.

Finally, the Constitutional Council struck five other articles as being riders (cavaliers législatifs), provisions that were introduced as amendments during the legislative procedure but otherwise had little to do with the principal subject of the law. These provisions were struck as contrary to article 45 of the French Constitution, which requires amendments to “have a connection, even if it is indirect one, with the bill as it was submitted.”

Beyond the provisions discussed above, most of the bill was deemed constitutionally valid by the Constitutional Council. As such, the bill was signed into law, without the provisions struck by the council, on May 25, 2021.

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