behind the decision of the Constitutional Council, the shock wave on the criminal procedure

2023-10-13 07:00:09

The characteristic of decisions which set jurisprudence is that their scope goes beyond their original subject. This is the case of the decision of the Constitutional Council of September 29. It concerned a priority question of constitutionality (QPC) raised by François Fillon, former prime minister. But, beyond the present case, its consequences are major for criminal procedure in France.

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Let’s remember the facts. Sentenced at first instance in 2020, then on appeal in 2022, to four years in prison, one of which is closed, a fine of 375,000 euros and ten years of ineligibility in the case of fictitious jobs concerning his wife, Mr. Fillon was appealed to the Court of Cassation. In June, he challenged, within the framework of a QPC, the conformity with the Constitution of the first paragraph of article 385 of the code of criminal procedure. Believing that he did not have the right to a fair trial, the former head of government considers that the criminal proceedings against him were tainted by “serious irregularities”.

During his appeal trial in 2021, he tried to have the investigation canceled by raising grounds for nullification. However, these had been dismissed due to the first paragraph of article 385 of the code of criminal procedure, under which the parties can no longer raise nullities (of procedure) based on elements subsequent to the order referral to the criminal court after the conclusion of an investigation. Concretely, it is a purge system. The objective? Act in “the interest of society to ensure the security of procedures and continue the investigation without fear of illegality”according to Serge Guinchard and Jacques Buisson in Penal procedure (Lexis Nexis, 2022).

Right to effective remedy

In their decision, the members of the Constitutional Council considered, “without ruling on the substantive dispute at the origin of the QPC”that the contested provision ignores “the right to an effective legal remedy and the rights of the defense” and that she must therefore “be declared contrary to the Constitution”. The constitutional judges attached their decision to a deadline of one year. The contested provision will therefore not be repealed until October 1, 2024, to avoid “manifestly excessive consequences”.

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In the meantime, a new law will have to be adopted. “We are working on a text”, explains the chancellery. In the meantime, the Council specifies that, “until the entry into force of a new law (…), the declaration of unconstitutionality may be invoked in current or future proceedings when the purging of nullities has been or is opposed to a means of nullity which could not be known before the close of the investigation.. The respondents can therefore rely on the Council’s decision to raise nullities.

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