Decision no. 2017-625 priority matter of constitutionality of 07 April 2017 - Mr. XX
- 2017
- France
Topics
Membership in a terrorist organisation Terrorism recruitment Terrorism propaganda Public securityLegal bases
France: Penal Code (Code pénal) of 1994Courts
Constitutional Council (Conseil constitutionnel), FranceLaws
ProportionalityFacts
The constitutional council was asked to decide upon a priority matter of constitutionality on 25 January 2017 by the “Cour de cassation” (Criminal Division, Decision no. 347 of 25 January 2017). The applicant and the intervening party claim that legal provisions, which establish an offence of "individual terrorist undertaking", infringe on the principle that offences and penalties must be defined by law insofar as the elements that make them up are not precisely defined and that they criminalise a great number of behaviours. According to them, the provisions also infringe on the principle of the necessity of offences and penalties insofar as, on the one hand, the legislature punishes events that may not lead to the commission of acts of terrorism and that, on the other, the contested infraction only refers to an intention. Finally, these provisions infringe on the principle of the proportionality of penalties.
Legal grounds
Article 421-2-6 of the Criminal Code, as written pursuant to the Law of 13 November 2014, provides that: "I. - What constitutes an act of terrorism is preparing to commit one of the infractions mentioned in part II when the preparation of said infraction is intentionally related to an individual undertaking that has the goal of seriously disturbing public order by intimidation or terror and is characterised by: "Section 1° - possessing, searching for, obtaining or making objects or substances that create a danger to others; "Section 2° - and one of the following material facts: "a) gathering information on locations or persons that would allow for carrying out harmful actions in these locations or inflicting damage to these persons or staking out these locations or these persons; "b) training or learning how to use arms in any form of combat, fabricating or using explosive, incendiary, nuclear, radiological, biological or chemical substances, or learning how to fly aircraft or navigate ships; "c) regularly consulting one or more public online communication services or possessing documents that directly induce the commission of terrorist acts or in defence of them; "d) travelling abroad to a terrorist group operations theatre. "II. - Part I involves preparing to commit the following infractions: "Section 1° - a terrorist act described in Section 1° of Article 421-1; "Section 2° - a terrorist act described in Section 2° of Article 421-1 when the act consists in destroying, damaging or deteriorating by explosive or incendiary substances carried out at times and in locations that may result in harm to the physical well-being of one or several persons; "Section 3° - a terrorist act described in Article 421-2 when the act may result in harm to the physical well-being of one or several persons; 3. Article 421-5 of the Criminal Code, in this same writing, establishes: "The terrorist acts defined in Articles 421-2-1 and 421-2-2 are punishable by ten years of imprisonment and a fine of 225,000 euros. "Leading or organising the group or the arrangement defined in Article 421-2-1 is punishable by twenty years of criminal detention and a fine of 500,000 euros. "Attempting the infraction defined in Article 421-2-2 is punishable by these same penalties. "The act of terrorism defined in Article 421-2-6 is punishable by ten years of imprisonment and a fine of 150,000 euros. "The two first Subparagraphs of Article 132-23 relate to the minimal imprisonment periods applicable to the infractions established in this Article."
Findings
The words "searching for", as appearing in Section 1° of Paragraph I of Article 421-2-6 of the Criminal Code as written pursuant to the Law number 2014-1353 of 13 November 2014 reinforcing the provisions related to the fight against terrorism are unconstitutional. The declaration of unconstitutionality of this Article 1 shall take effect under the conditions set out in Paragraph 22 of this Decision. The fourth Subparagraph of Article 421-5 of the Criminal Code as written pursuant to the Law number 2014-1353 of 13 November 2014 reinforcing the provisions related to the fight against terrorism is constitutional. Concerning the conditions defined in Paragraph 16, the other provisions of Article 421-2-6 of the Criminal Code as written pursuant to the Law number 2014-1353 of 13 November 2014 reinforcing the provisions related to the fight against terrorism are constitutional.