Most of the orientation and programming law of the Ministry of the Interior (Lopmi), better known as the “security law”, has been validated by the Constitutional Council. In a decision handed down on Thursday, January 19, the court however partially censored two articles – one concerning the investigation under a pseudonym, the other on the investigative assistants – and censored two others, as legislative riders, i.e. amendments unrelated to the text under consideration.
The text carried by Gérald Darmanin, Minister of the Interior, which provides for an additional 15 billion euros over five years for the police and the gendarmes, had found in the fall, a resolute opposition among the parliamentarians of the left. It is moreover “rebellious” deputies, communists and ecologists who seized the Constitutional Council on eighteen articles of the law, that is to say two thirds of the text.
Despite this broad referral, the main measures of the law are not affected. This is the case with the generalization of fixed criminal fines, which make it possible to punish offenses without legal proceedings; equipment “augmented” police; the creation of 200 gendarmerie brigades, eleven additional units of mobile forces and the increase in digital investigation capacities.
- The case of the survey under a pseudonym
Article 230-46 of the Code of Criminal Procedure allows officers or agents of the judicial police acting during the investigation or on letters rogatory to carry out certain investigative acts under a pseudonym (being an “infiltrator”). Article 10 of the Lopmi provided that the authorization of the public prosecutor or the investigating judge was no longer required for “the acquisition of any content, product, substance, sampling or service as well as for the transmission of any content when the object of the acquisition or transmission is lawful”.
To rule on the constitutionality of this provision, the Council mainly relied on Article 16 of the Declaration of the Rights of Man and of the Citizen of 1789 guaranteeing the right to a fair trial. He thus judges that“in view of the particular nature and the conditions for carrying out these acts of investigation [vente ou achat de produits ou de services, physiquement ou sur Internet]by exempting the acquisition or transmission of content from the authorization of the public prosecutor or the examining magistrate in the event that their purpose is lawful, [ces] provisions of Article 10 deprive of legal guarantees the right to a fair trial”. Thus, the authorization of the prosecutor or the investigating judge will always remain essential.
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