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France: Constitutional Court Finds Arrested Persons Have Constitutional Right to Challenge Conditions of Incarceration

(Oct. 28, 2020) In a decision of October 2, 2020, the Conseil constitutionnel (Constitutional Council), France’s high court for constitutional questions, found that the absence of judicial recourse for persons under arrest to challenge their conditions of incarceration is unconstitutional. This decision was given in response to two questions prioritaires de constitutionalité (QPC) (priority question of constitutionality), a procedure by which French courts can refer questions about the constitutionality of legislative provisions to the Conseil constitutionnel. In this instance, the Conseil constitutionnel was responding to two QPC from the Cour de cassation, France’s supreme court for civil and criminal matters. These QPC concerned the cases of two individuals who had been charged with crimes and were in detention while awaiting their trials.

These individuals alleged that the conditions of their incarceration violated their dignity as human beings. The preamble to the Constitution of 27 October 1946, which is incorporated by reference in France’s current Constitution, proclaims that “[i]n the morrow of the victory achieved by the free peoples over the regimes that had sought to enslave and degrade humanity, the people of France proclaim anew that each human being, without distinction of race, religion or creed, possesses sacred and inalienable rights.” The Conseil constitutionnel has interpreted this sentence as guaranteeing a right to human dignity since 1994. During oral arguments, attorneys for the two plaintiffs described the poor conditions in which they were incarcerated. One was held in an 8-square-meter cell, which he had to share with two other detainees, with a mattress on the floor. The other described unsanitary conditions including the presence of rats, bed bugs, and centipedes.

The Code de procédure pénale (Code of Criminal Procedure) allows pre-trial detainees to challenge their detention. Article 144 lists the grounds on which a judge may order a person’s pretrial detention, such as to keep the suspect at the disposal of the justice system, prevent the suspect from tampering with evidence or witnesses, prevent the suspect from continuing the criminal behavior for which he/she is under arrest, or protect the suspect. Furthermore, article 144-1 provides that detention must not exceed a “reasonable length of time.” Article 144-1 also provides, in its second paragraph, that a judge must order a person’s release if none of conditions listed in article 144 apply anymore. However, article 144-1 makes no mention of considering the detainee’s conditions of incarceration. This was the issue that the Conseil constitutionnel was asked to resolve: whether the absence of a legal provision that would allow a judge to order the release of a detainee on the basis of that detainee’s conditions of incarceration violated the constitutional right to human dignity. It concluded that yes, the absence of such a provision was a violation of the right to human dignity.

The Conseil constitutionnel decided to strike down the second paragraph of article 144-1 of the French Code of Criminal Procedure. However, it realized that abrogating this provision immediately would create a legal void that would cause serious problems. Specifically, it would remove the legal basis that allows judges to order the release of detainees whose incarceration has exceeded a reasonable length of time or is no longer justified under the criteria set out in article 144. In order to avoid the negative consequences of an immediate abrogation of the second paragraph of article 144-1, the Conseil constitutionnel ruled that the provision would remain in force until March 1, 2021, to give the Parliament the opportunity to correct the deficiency. In the meantime, as explained in the official commentary published on the Conseil constitutionnel’s website, detainees may petition courts for their release under the European Convention on Human Rights.

On July 8, 2020, at the same time that it sent the QPC to the Constitutional Council, the Cour de cassation decided that the two individuals in question should be released under the convention. The Cour de cassation’s interpretation of the European Convention of Human Right’s applicability was largely based on a European Court of Human Rights decision of January 30, 2020, that found France to be in violation of the convention because of poor conditions of detention in several prisons. But while detainees have, on the basis of this decision, the right to challenge their detention in regular courts for violations of their right to human dignity, this procedure is more lengthy and cumbersome than that provided in article 144-1 of the Code of Criminal Procedure. Indeed, the latter gives detainees the right to petition a juge d’instruction (investigative judge) or a specialized judge called a juge des libertés et de la détention (judge of freedoms and of detention), either of which would lead to a quicker resolution than filing a regular lawsuit.