FRANCE
P. Mazeaud
Member of the
French Constitutional Conncil
Human rights and public order
France probably holds the world record for constitutions. No less than fifteen of them in two centuries! I shall only talk about two of them: those of 1848 and 1958.
Why talk about the 1848 Constitution today? Because it shows us that the reconciliation of order and freedom is not a new problem first identified on 11 September 2001.
When that constitution was being drafted there was a very interesting debate in the constitutional assembly on the value of writing a declaration of rights and duties in the preamble. Our poet and politician Alphonse de Lamartine supported doing so. But the republican deputy Fresneau was against. What he said was this: "If we set forth … these rights of the State and these rights of the individual, are we doing anything special, anything of great use to the people… ? We are simply stating a problem, the eternal problem of reconciling the rights of the individual with the rights of society, reconciling order with freedom".
As for the Constitution of 1958, that is the one that established the Constitutional Council and allowed it to supervise the way the legislature reconciles freedoms and public order.
What I am setting out to do in my few words today is outline for you the way the Constitutional Council goes about supervising this. But first, I think I should describe the basic notions beneath the issue of human rights and public order in French law.
I - The concepts of freedom and public order
A - The concept of human rights and liberties
In "L’esprit des lois" (Chapter II of Book XI), published in Geneva in 1748, the philosopher Montesquieu wrote: "There is not a single word that has borne more different meanings or impressed people’s minds in more ways than Liberty".
That is why I am talking to you of liberties in the plural rather than the singular.
Without going into excessive detail, these liberties include :
1) Those that are related to respect for personal autonomy: safety or individual freedom2 in the "habeas corpus" sense, respect for private life, inviolability of the home and correspondence, respect for the human person;3
2) Freedom to act: freedom to come and go, freedom of enterprise;4 freedom of contract;
3) Liberties of thought: freedom of conscience and opinion, freedom to communicate (press and broadcasting), freedom of education, freedom of association,5 freedom to demonstrate,6 political freedoms.7
4) Economic and social rights: property, trade union freedom,8 freedom to strike.
This typology, like any other, is open to debate. Any one of you may believe that the distinctions that I have set out are not the most appropriate or that my catalogue is incomplete or out of date. But even so the list roughly represents the common stock of the democratic countries.
What is original in France, however, is that these rights and liberties have a variety of historical sources, some of them very old, and that they are generally defined in vaguer terms than democracies whose constitutions are more recent and contain a precise catalogue of fundamental rights.
These sources are as follows:9 Declaration of Human and Civic Rights of 1789, Preamble to the Constitution of 1946, fundamental principles recognised by the laws of the Republic, Constitution of 1958. I will not go on about this point.
B - The concept of public order
The Constitutional Council has never defined what it meant by public order … but it is easy enough to grasp what it is referring to if we read its decisions. The concept is one that everybody can understand without needing a precise definition!
But it can at least be said that the Constitutional Council’s definition of public order is very close to the one traditionally used in French administrative law for more than two centuries.
It covers "good order, security, public hygiene and the public peace". But it does not cover, for instance, "the dignity of the human person", as modern administrative law does. The reason is that "dignity of the human person" has its own specific basis in the Preamble to the Constitution of 1946.
Likewise, while the concept of public order is closely related to the concept of the general interest, the Constitutional Council clearly distinguishes them in its decisions.
Guaranteeing the safety of persons and property, public order is seen by the Council’s decisions as shielding some of our most fundamental freedoms : "Preventing violations of public order is necessary to safeguard our constitutional rights".
Public order is mentioned specifically only once in our constitutional instruments. Article 10 of the 1789 Declaration reads: "No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order".
Public order is thus a device of the case-law designed to secure constitutional rights and principles.
It is a strict concept of public order (rather than the broader concept incorporating social, hygiene and ecological elements).
The "core" of this strict concept of public order seems to me to be the principle of safety enshrined in the 1789 Declaration: no freedom is possible in a society where individuals fear for their personal safety.
The Council has given a legal status to the traditional concept of public order by making the preservation of it a constitutional objective.
But what is a constitutional objective?
Constitutional objectives are constraints linked to life in society which must inspire the law-makers.
They make it possible to take account of considerations of "public good" or "general interest" in order to attenuate the impact of certain constitutional rules, including rights and liberties.
Public order was one of the first objectives defined by the Constitutional Council. In 1981 it held that individual freedom and freedom to come and go had to be reconciled with "what is necessary to safeguard general-interest purposes of constitutional status" such as the maintenance of public order (decision of 19 and 20 January 1981 on the Security and Freedom Act).
This philosophy can be found in the European Human Rights Convention. Certain rights and liberties proclaimed there can be restricted where the restrictions, I quote, "are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." Such is the case of the freedom of expression proclaimed by Article 11 of the European Convention.
II - Reconciling liberties and public order
A - Public order is necessary for the exercise of freedom
For the Constitutional Council, public order is, as I have said, a democratic necessity.
Let me give two examples.
The first dates from 1981. It was a decision on the Security and Freedom Act, where the Council held that "detecting offenders and preventing violations of public order, in particular violations of the safety of persons and property, are necessary for the implementation of constitutional principles and rights".
The second dates from 1985, when a statute was enacted to establish a state of emergency in New Caledonia (in the South Pacific) following serious disturbances:
"It is for the legislature to reconcile as necessary the respect for freedom and the preservation of public order, without which it is not possible to exercise freedom".
The Constitutional Council deduced that, while the Constitution (article 36) referred only to a state of siege, "it did not exclude the possibility for the legislature of providing for a state of emergency to reconcile, as we have seen, the requirements of freedom and the preservation of public order"
B - Restrictions on liberties can be legitimated by the preservation of public order
Given that maintaining public order is vital for the exercise of liberties, it follows that in certain circumstances freedom will have to be curtailed in order to safeguard public order.
The power to curtail it lies with the legislature, since article 34 of the Constitution provides that statutes shall determine the rules concerning the fundamental guarantees granted to citizens for the exercise of their public liberties.
As the Constitutional Council held in a recent decision relating to domestic security (March 2003), it is for the legislature to reconcile the prevention of violations of public order and the detection of offenders, both necessary to safeguard constitutional values and principles, with the exercise of rights and liberties guaranteed by the Constitution, which include:
- respect for private life, protected by article 2 of the Declaration of Human and Civic Rights of 1789,
- freedom to come and go, protected by article 4 of the Declaration,
- individual freedom that article 66 of the Constitution ("No one shall be arbitrarily detained") places under the supervision of the judicial authority10.
Likewise administrative police measures that might affect the exercise of liberties guaranteed by the Constitution must be justified by the need to safeguard public order, and the threat must be based on specific circumstances constituting a risk for public order in each specific case11.
III - Review of the reconciliation by the Constitutional Council
There are two processes for this review: verification of "proportionality" (A) and "qualified interpretations" (B).
A - Review of proportionality
In March 2003, when reviewing the Domestic Security Act, the Constitutional Council had an opportunity to clarify some issues concerning the need to reconcile personal freedom and public order (decision 2003-467 DC, 13 March 2003). In particular, it reviewed for proportionality provisions challenged by Members of Parliament, which authorised three different types of vehicle searches in different circumstances. It recalled, as on so many other occasions, that its function was not to substitute its judgement for that of the legislature.
The first type of search allowed the prosecution to go further than before in inspecting vehicles12. It was provided that requisitions could extend beyond the search for terrorists to include offenders against the legislation on arms and drugs trafficking and theft and handling offenders.
Regarding vehicle searches on requisitions from the State Prosecutor, the Constitutional Council held that the there was no manifest error in the reconciliation of the constitutional principles recalled above. In particular it took account of the fact that the prosecution service is part of the judicial body.
The second type of searches concerns the detection of flagrante delicto offences.
The Constitutional Council held that the provisions concerning vehicle searches carried out to record offences flagrante delicto are in conformity with the constitutional requirements set out above by reason of the conditions that are imposed for searches ("reasonable suspicion …"). The expression criticised by the applicants, incidentally, is that used in the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 5 (1)(c)).
A third type of searches was authorised in order to prevent serious violations of the safety of persons and property.
The Constitutional Council held that the provisions relating to vehicle searches by the administrative police satisfied constitutional requirements in view of the condition imposed for them (threat to public order, the reality of which could be reviewed afterwards by the courts).
The Constitutional Council also rules on the constitutionality of police files. There is no time for me to discuss this today. Let me just say that here, as in the case of vehicle searches, the Constitutional Council took a practical approach to the protection of fundamental rights.
It held that the threat to human rights of storing a record of an act of violence committed (possibly) by Mr X is less serious than the risk (for human rights) of not being able to retrieve the information if Mr X really does commit repeated acts of violence.
It also held that the threat to freedom of searching the luggage compartment of Mr Y’s car (which may well be empty) is less serious than the risk of letting Mr Y carry a bomb into a crowded place.
This is an application of the "precautionary principle".
Following its earlier decisions and acting in conformity with the European Human Rights Convention, the french constitutional Council nonetheless imposes a condition for the application of the precautionary principle in matters of public order: there must be "serious and concordant grounds for suspecting the commission of an offence" (entry in a police or gendarmerie file), or "reasonable grounds for believing that a person is going to commit an offence" (vehicle searches by administrative police).
B - Use of the "qualified interpretation" technique in reconciling freedoms and public order
It is in reconciling public order and human rights that the Constitutional Council has most often applied the "constitutional provided that" technique. I shall offer three examples (b), after briefly outlining the technique (a).
a - The "constitutional provided that" technique
Article 62 of the Constitution provides: "No appeal shall lie from the decisions of the Constitutional Council. They shall be binding on public authorities and on all administrative authorities and all courts".
This authority is enjoyed both by the operative part of the decision and by the grounds that necessarily support this operative part.
Regarding the provisions actually examined by the Council, its decision has a twofold authority:
- first, the moral authority that its decisions enjoy generally; and
- the legal authority conferred by article 62 of the Constitution on its decisions and on the grounds that have to be given in support of them.
In this latter respect point, the question of "qualified interpretations" merits special attention.
Qualified interpretations reflect the fact that "statutory provisions are not simply what they seem to be in their abstract form but what they are when applied in practice …"13.
In so many cases the constitutionality of a statutory provision is neither guaranteed nor excluded in advance. All will depend on the way this "emergent law" that only the Council has the power to interpret fits into the broader reality (implementing decrees, administrative practice, court decisions…).
The use of qualified interpretations is based on the fact that in France constitutional review of statutes is "abstract" and previous.
It is the inevitable corollary of the French style of constitutional review. It enables the court (when possible) to break out of the constitutional/unconstitutional alternative by holding that a provision is constitutional as long as it is interpreted (or applied) in the way stated by the court.
In every decision where the Council gives qualified interpretations, the decision states that the statutory provisions declared constitutional are so declared "subject to the reservations indicated" in specified paragraphs (for ease of reference and for the sake of certainty in the law).
The point of this is that the interpretation is now mandatory, universally and absolutely. It is the necessary support for a decision given in the context of an abstract constitutional review procedure, regardless of any dispute between individual litigants on the application of the relevant statute.
A court applying the statute will have to bear in mind that if the Council had not imposed its interpretation it would simply not have allowed the statute to be promulgated.
The qualified interpretation thus becomes part of the statute itself. A statutory provision on which the Council has issued a qualified interpretation exists as such only if the interpretation is followed.
b - Illustrations of the use made of qualified interpretations in cases on the reconciliation between freedoms and public order
Let me give three examples of the use made of qualified interpretations in cases on the reconciliation between freedoms and public order.
Decision 94-352 DC of 22 April 1997: the Act prohibited the issuance of a residence card to a foreign national living in a polygamous relationship. The Constitutional Council held that this concerned only foreigners who lived in such a relationship in France. A foreigner who was refused a residence card on this ground could plead the interpretation and show that he had only one spouse living with him in France.
The other two examples are taken from the recent decision of 13 March 2003 on Domestic Security that I have already mentioned, in which no less than 13 qualified interpretations were given.
The first concerns police data files. The Constitutional Council insisted that the period of storage of data on offences involving minors must reconcile the need to detect offenders and the need to ensure the educational and moral upbringing of juvenile delinquents.
The second concerns the introduction of an offence of "scandalising the national flag or the national anthem" at public events organised or regulated by public authorities.
The applicants in both cases submitted that the establishment of this offence "seriously violated freedom of expression, conscience and opinion".
The Constitutional Council proceeded on the basis of the following constitutional provisions:
The second paragraph of article 2 of the Constitution ("The national emblem shall be the blue, white and red tricolour flag") and the third paragraph ("The national anthem shall be La Marseillaise").
Article 10 of the 1789 Declaration: "No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order".
And Article 11 of the Declaration: "The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law".
The Constitutional Council reconciled as it must the constitutional requirements considered above. The scope of the offence was tightly defined. It excluded, for instance, "outrages" in works of the intellect, in private clubs or at manifestations not organised or regulated by public authorities.
The Council held that the penalty provided for by the legislature was not disproportionate to the offence.
And it issued a qualified interpretation to the effect that the expression "public events organised or regulated by public authorities", seen in the light of the legislative history, was to be understood as referring to public sporting, recreational or cultural events in places subject to the public health and safety regulations on account of the number of people attending them.
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The Constitutional Council’s recent decision on domestic security shows that reserving both liberties and public order means that the legislature, subject to Constitutional Council review, must perform a delicate balancing act.
Those who are interested will find in the annex to this paper a more technical analysis of the decision.
The Council’s review consists of checking that none of the potentially conflicting constitutional values is distorted or sacrificed to another.
There is bound to be a subjective element, since, as I have already said, the Constitutional Council cannot substitute its judgement for that of the legislature. It exercises a very different kind of authority from Parliament.
Annex
Personal freedom
and public order
Decision 2003-467 DC,
13 March 2003
(Domestic Security Act)
Adopted in February 2003, the Domestic Security Act provided the French Constitutional Council with an opportunity to clarify some issues concerning the need to reconcile personal freedom and public order (Decision 2003-467 DC, 13 March 2003).
There were two referrals by deputies and senators challenging twenty or so of the most important sections of the Act.
I shall simply look at the two main sets of sections that are the most directly relevant to our agenda here.
Sections 11 to 13 (vehicle searches)
These sections provide for new rules governing vehicle searches by criminal investigation police officers.
The two referrals challenged them on grounds of excessive violations of respect for private life, the inviolability of the home, freedom to come and go and individual freedom.
The applicants submitted that the offending sections left too much discretion to the courts, as guardians of individual freedom, in the procedure.
They further submitted that the sections were vitiated by failure to exercise powers to the full, since they lacked precision.
Before considering the submissions, we must first recapitulate the constitutional rules applicable to vehicle searches:
It is for the legislature to reconcile the prevention of violations of public order and the detection of offenders, both necessary to safeguard constitutional values and principles, with the exercise of freedoms guaranteed by the Constitution, which include respect for private life, protected by article 2 of the Declaration of Human and Civic Rights of 1789, the freedom to come and go, protected by article 4 of the Declaration, and the individual freedom that article 66 of the Constitution ("No one shall be arbitrarily detained") places under the supervision of the judicial authority;14
Administrative police measures that might affect the exercise of freedoms guaranteed by the Constitution must be justified by the need to safeguard public order, and the threat must be based on specific circumstances constituting a risk for public order in each specific case;15
Apart from cases where they act on a requisition by the judicial authority, authorised police officers may hold a person only where there is reasonable suspicion that an offence has been committed or where there are reasonable grounds for believing in the need to prevent the commission of an offence. In such cases, the judicial authority must also be informed at the earliest opportunity and the rest of the procedure must be under its supervision16.
What are we to make of the relevant sections in the light of these principles?
Section 11
This section allows the prosecution service to make more extensive use of its vehicle search powers17. Requisitions will cover the search not only for terrorists and offenders against the legislation on arms and drug trafficking but also for theft and handling offenders.
As regards vehicle searches carried out on requisitions by the State Prosecutor, there was no problem of serious errors in the reconciliation between the constitutional principles set out above. The prosecution service is part of the judicial authority.
Section 12
Section 12 inserts in the Code of Criminal Procedure a new section relating to offences recorded flagrante delicto.
As regards vehicle searches carried out to record offences flagrante delicto, the provisions are in conformity with the constitutional requirements set out above by reason of the conditions that are imposed for searches ("reasonable suspicion …").
The expression criticised by the applicants is that used in the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 5(1)(c)).
In addition, these provisions of section 12 are sufficiently clear and precise.
Section 13
Section 13 inserts in the Code of Criminal Procedure a new section relating to vehicle searches to prevent serious violations of the safety of persons and property.
Regarding vehicle searches conducted by administrative police, the provisions satisfy the constitutional requirements set out by reason of the conditions that are imposed for searches ("threat to public order"), the reality of which can subsequently be reviewed by the courts.
To respect a decision given by the Constitutional Council in 1995,18 vehicle searches may be conducted, where the driver refuses, only on instructions from the State Prosecutor. Pending such instructions, which may be sent by modern telecommunication facilities, the vehicle may be immobilised for no more than thirty minutes.
These provisions are sufficiently clear and precise to respect the task conferred on the legislature by article 34 of the Constitution.
The solution adopted here is based on the fundamental idea that the administrative police are independent of the criminal investigation police: the former are responsible for maintaining law and order in general, irrespective of whether offences have been committed, and for preventing crime; the latter are concerned with the facts of a given offence.
The former can at any time join up with the latter when an offence is recorded. At this stage the criminal investigation police take the lead.
This judicial intervention can just as well occur after the offence has been recorded and the offender has been apprehended. The period of time elapsing between the two must be as short as possible to meet constitutional requirements. But the fact remains that the courts do not necessarily have to be involved before the administrative police take action.
Sections 21 and 25 (use of police files)
These sections relate to computer processing of personal data by the national police and the national gendarmerie in the exercise of their functions.
The applicant deputies and senators submitted that these provisions violated respect for private life; that by leaving it to the authority empowered to make regulations to determine certain characteristics such as the period during which the data would be stored, the legislature had failed to exercise its powers to the full; that certain uses were unrelated to the purposes of the processing; that by allowing consultation of personal data for administrative inquiry purposes, the legislature was allowing them to be used for a purpose that was detrimental to the legitimate interests of the persons concerned and contrary to the right to a normal family life; and that the principle of the presumption of innocence was violated.
Once again, we must begin by recapitulating the relevant constitutional rules, in particular to clarify the concept of individual freedom within the meaning of article 66 of the Constitution.
A recent decision by the Constitutional Council19 distinguishes between respect for private life and individual freedom.
Likewise, in connection with road safety, freedom to come and go was distinguished from individual freedom20.
The constitutional rules applicable to police and gendarmerie files can be summed up as follows
- Article 2 of the Declaration of Human and Civic Rights of 1789 reads: "The aim of every political association is the preservation of the natural and imprescriptible rights of man. These rights are Liberty, Property, Safety and Resistance to Oppression". The freedom declared by this article implies respect for private life;
- It is for the legislature, under article 34 of the Constitution, to lay down rules concerning the fundamental guarantees given to citizens for the exercise of public freedoms;
- It is for the legislature to reconcile the prevention of violations of public order and the detection of offenders, both necessary to safeguard constitutional values and principles, with the exercise of freedoms guaranteed by the Constitution.
Let us now consider the submissions in this case.
Respect for private life
The provisions challenged contain a series of "safety nets" to guard against the abuse of police and gendarmerie files, which they place under supervision by the courts.
The Constitutional Council held that the effect of all these guarantees was to reconcile respect for private life with the need to detect offenders in a manner that was not manifestly unbalanced.
But the Constitutional Council did not give up on substantial protection of private life.
It held on the substance that the additional efficiency from broader use of personal data gathered by the police and the gendarmerie would make for better protection of persons and property, in other words would contribute to safeguarding the fundamental freedoms that public order is designed to guarantee.
Given the scale of the issue at stake, the Council felt that the drawbacks of the scheme for the rights of individuals whose data were recorded were negligible.
This judgement flows not only from the precautions taken in procedural terms by the legislature, but also from the fact that the rights of individuals whose data were recorded were not affected substantially (see below).
Respect for the presumption of innocence
Article 9 of the 1789 Declaration reads: "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".
A principle such as this is not violated by the mere existence of data-processing in the form provided for by section 21, which is a necessary tool of investigation rather than a criminal record.
Under section 21(III), the relevant personal data must be deleted in the event of a case withdrawn or an acquittal. But the State Prosecutor may order their preservation "for reasons linked to the purposes served by the files", in which case the withdrawal or acquittal must be recorded.
This exception from the general rule that data must be deleted is not particularly shocking, as it can be justified by an overriding public order consideration - the need to gather evidence to identify past or future offenders.
This need will be duly assessed by the judicial authority.
Given the same need, the principle of the presumption of innocence is likewise not violated by the fact that data are kept, in the absence of a decision to the contrary by the judicial authority, in the event of a decision not to proceed or to terminate proceedings.
In far too many cases, proceedings are terminated simply because the courts are overloaded or because evidence is difficult to gather rather than because there are genuine doubts as to the guilt of the accused.
Where there is a decision not to proceed on the grounds that the accused was in a state of diminished responsibility at the time of the offence, the decision is not truly meaningful: the accused could have a new crisis and commit another serious offence. Why make it impossible to identify him? Nor are there any special grounds for deleting data where the offence is proven but proceedings are simply time-barred.
Utilisation for administrative purposes
Section 25 allows personal data gathered by the police to be consulted for specific administrative purposes.
First and foremost we are talking about decisions concerning recruitment, assignment, authorisation, approval and empowerment as regards either public-service posts involving the exercise of tasks belonging to the sovereignty of the State or public or private posts in security or defence sectors, or regulated public or private posts related to the regulation of gambling and racing, or access to areas that are protected on account of the activity conducted there, or the use of hazardous equipment or substances.
In such cases, the sole purpose of consulting the data is to verify whether the conduct of the person concerned is not incompatible with the exercise of the functions or tasks; the data are consulted exclusively to the extent necessary for the protection of the security of individuals and the defence of the fundamental interests of the Nation; those concerned are informed; and a Decree adopted in the Council of State will list the administrative investigations which, under section 25 of the Act referred, will warrant consultation of the computerised personal data provided for by section 21.
It goes without saying that the data thus compiled will be items of evidence among others. In the event of wrongful use, the person concerned, duly informed that his file is being accessed, will be able to challenge any refusal decision in the appropriate courts. For twenty years or so the Council of State, acting under section 2 of the Data-Processing and Freedom Act of 6 January 1978, has verified that an administrative decision "involving assessment of human conduct" is never based solely on computerised data "profiling the person concerned"21.
Consultation is also provided for "in the examination of applications for French nationality and the issuance and renewal of documents relating to the entry and residence of aliens and for appointment and promotion in national orders".
In such cases, the data are consulted by police and gendarmerie officers specifically empowered for the purpose or, in conditions determined by a Decree issued in the Council of State, by persons entrusted with administrative police missions designated by the same procedures.
The applicants submitted that there was a teleological principle reserving personal data processing for the original purposes.
But this is not a constitutional principle. It cannot therefore be pleaded against the legislature.
Even so, there can be no unlimited acceptance of the administrative use of criminal investigation police files without coming up against constitutional objections. Such use would violate the 1789 Declaration if it jeopardised the rights or interests of the persons concerned by reason of being too hasty or subject to inadequate precautions, particularly as regards the confidentiality of highly sensitive information.
That is not the case here in view of the entirely acceptable grounds on which data can be consulted and the very strict restrictions and precautions provided for.
In particular, these provisions do not of themselves violate the rights of foreigners, which do not basically include a right to acquire French nationality or to have a residence card renewed22.
But then they cannot be interpreted as jeopardising the acquisition of French nationality where the law makes it available or the renewal of a residence card where the law provides for it or where it is given on grounds of respect for everybody’s right to a normal family life23.
The powers of the legislature
The objection that powers were not exercised to the full was easily dismissed.
While the general rules applicable to personal data and data protection are matters for statute under article 34 of the Constitution ("Statutes shall determine the rules concerning … civic rights and the fundamental guarantees granted to citizens for the exercise of their public liberties …") and protective legislation has been enacted here (Data-Processing and Freedom Act, 6 January 1978), the same does not apply to the definition of each form of processing.
Far from violating the extent of its own powers, the legislature inserted in the provisions it enacted a series of details some of which belonged to the authority empowered to make regulations under articles 34 and 37 of the Constitution. Most of these specific aspects had hitherto been determined by means of regulations.
*
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This recent decision of the Constitutional Council shows that in protecting constitutional values such as personal freedom and public order, the legislature has had to balance various factors against each other, subject to review by the Constitutional Council.
When exercising its review the Council verifies that none of the potentially conflicting constitutional values is distorted or sacrificed to another one. There is inevitably a subjective element here.
But the Constitutional Council cannot substitute its policy judgment for that of the legislature. Its powers differ in nature from those of the Parliament.
What is the philosophy emerging from the decision on the Domestic Security Act?
On both data files and vehicle searches, the Constitutional Council has taken a practical approach to protecting fundamental rights:
- The threat to freedom of storing a record of an act of violence committed (possibly) by Mr X is less serious than the risk of not being able to retrieve the information if Mr X really does commit repeated acts of violence.
- The threat to freedom of searching the luggage compartment of Mr Y’s car (which may well be empty) is less serious than the risk of letting Mr Y carry a bomb into a crowded place.
This form of hierarchy, which expresses the precautionary principle in enforcement terms, is what the general public support.
This is not to say that it is a constitutional principle. But the question is worth thinking about. Constitutional law cannot entirely overlook popular reactions on a problem that is of such direct concern to the people, who are sovereign in our system, and to some extent determines their attitudes at election time and is at the heart of the social contract: the fight against civil violence.
The Council (following its earlier decisions and acting in conformity with the European Human Rights Convention) nonetheless imposes a condition for the application of the precautionary principle in matters of public order: there must be "serious and concordant grounds for suspecting the commission of an offence" (entry in a police or gendarmerie file), or "reasonable grounds for believing that a person is going to commit an offence" (vehicle searches by administrative police).
Is this a sufficient safety barrier? Or is it an excessively subjective condition allowing police officers to embark on all manner of abuses?
I do not think so. On the contrary, it seems to me that asking the State to do even more (but what, anyway?) would paralyse it and make things even easier for private-sector violence. The result would be giving up the protection of freedoms that are currently threatened in France not so much by over-zealous gendarmes as by the barbarism of violent people living outside civil society.
The decision that we are looking at here aroused a number of critical reactions among specialists in public freedoms, but it falls within the context of a re-evaluation of the relationship between public order and public freedoms that had already begun before 11 September 2001 and, it seems to me, is going on in all the developed democracies.
That, without doubt, is the context that we are looking at.
Свободы и общественный порядок
П. Мазо
член Конституционного Суда Франции
Резюме
Oбщественный порядoк - гарантия безопасности личности и имущества - рассматривается юриспруденцией французского Конституционного Совета как "щит" некоторых наиболее основных свобод: "Предупреждение посягательств на общественный порядoк, повторяет он часто, необходимо для защиты прав, имеющих конституционную ценность".
Совет придал ему юридический статус и его защита является целью, имеющей конституционную ценность. Для Конституционного Совета "только законодателю надлежит совершить необходимое примирение между защитой свобод и сохранением общественного порядка, без которого осуществление свобод не может быть обеспечено". Следовательно, при некоторых обстоятельствах свободы могут быть ограничены для сохранения общественного порядка.
Это право на ограничение принадлежит законодателю в силу положения статьи 34 Конституции, гласящей, что закон устанавливает правила, касающиеся основных гарантий, данных гражданам для осуществления их общественных свобод.
Однако Конституционный Совет осуществляет контроль этого примирения.
К примеру, меры полиции, могущие ущемить гарантированные конституционные свободы, должны быть оправданы реальной угрозой для общественного порядка, эта угроза должна быть основана на исключительных обстоятельствах, характеризующих риск нарушения общественного порядка.
В этих целях он использует два вида техники¦ контроль пропорциональности и соответствие с оговоркой толкования, имеющей директивный или же нейтрализующий характер.
Применение оговорок исходит из трудностей и противоречий предварительного и абстрактного контроля. Это неизбежное последствие контроля конституционности по французской модели. Он позволяет судье уйти от альтернативы соответствие/несоответствие, провозглашая положение соответствующим при условии, что оно будет истолковано (или применено) указанным ему способом.