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Videoconference in French criminal courts violates fair trial rights (Conseil d’État, 27.11.2020)

27 November 2020, Conseil d’État
avvocato giudice tribunale lego
I diritti delle immagini appartengono ai rispettivi proprietari (che saremo lieti di indicare in caso di richiesta).

French Council of State suspends the use of videoconferencing in criminal court hearings for serious cases handled by Cours d’Assises and Cours criminelles: it considers that the use of videoconferencing, without the agreement of the accused  is a serious and manifestly illegal infringement of the rights of the defense and the right to a fair trial.

In the context of the state of health emergency declared to deal with the new spread of the Covid-19 epidemic a French government order of November 18, 2020 adapted several rules of criminal procedure in order, according to its Article 1, "to allow the continuity of the activity of the criminal courts essential to the maintenance of public order".

Several associations, bar associations and a magistrates' union have asked the judge in charge of summary proceedings at the Council of State to urgently suspend certain provisions of this ordinance, in particular the extension of the possibilities of recourse to video-conferencing (Article 2) and the restriction of public access to hearings (Article 4).

The Council of State suspends the possibility, resulting from this order, of using videoconferencing in criminal courts, i.e. during the closing arguments of the Advocate General and the pleadings of the attorneys.

It considers that these provisions seriously and manifestly unlawful infringe the rights of the defense and the right to a fair trial.

It furthermore notes that, before the Assize Court or the Criminal Court (Cours d’Assises and Cours criminelles), the seriousness of the penalties incurred and the role given to the intimate conviction of the magistrates and jurors confer a specific place to the oral nature of the debates.

It emphasizes the essential character, during the closing arguments and pleadings, of the physical presence of the civil parties and the accused, especially when the accused speaks last. Under these conditions, the constraints linked to the epidemic, the advantages of videoconferencing and the guarantees surrounding it are not sufficient to justify the infringement of the founding principles of the criminal trial and the rights of the natural persons involved in the trial.

Furthermore, the judge in charge of summary proceedings expresses a reservation of interpretation concerning the litigation of pre-trial detention before the investigating chamber, taking into account three recent decisions of the Constitutional Council on this subject. The French Council of State emphasizes the particular obligation, in criminal matters, of the president of the investigating chamber to ensure that the detained person has the opportunity to appear physically with reasonable frequency.

On the other hand, the interim order rejects the other requests of the applicants.

The French administrative judge points out that the increased use of videoconferencing is made necessary by the great practical difficulties encountered by the prison administration in extracting detainees in view of the particularly heavy constraints imposed by the current health situation and by the fight against the spread of the epidemic within prisons and judicial courts.

Moreover, the contested provisions merely offer an option to the magistrates, who must, in each case, assess whether these difficulties justify the use of videoconferencing, particularly with regard to the state of health of the prisoner and the stakes of the hearing in question.

It is also their responsibility, as provided for in the provisions in dispute, to ensure that the means of telecommunication used makes it possible to certify the identity of the persons and guarantees the quality of the transmission as well as the confidentiality of the exchanges, in particular between the lawyer and his client.

Finally, the use of videoconferencing can help avoid postponing hearings and thus contribute to respecting the right of litigants to have their case heard within a reasonable time.

Concerning the possibility of restricting public access to the hearing, if the judge does not suspend this measure, specifying however that it does not concern journalists and that it is up to the magistrates to ensure that it is justified and proportionate to the health situation at the time of the hearing.

 

STATE COUNCIL
ruling
Litigation
Nos. 446712, 446724, 446728, 446736, 446816

ASSOCIATION OF PENALIST LAWYERS and others

Order of November 27, 2020
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE
THE JUDGE OF SUMMARY PROCEEDINGS

(canestriniLex.com unofficial translation, French original text here)


Considering the following procedures :
I. Under No. 446712, by a request, registered on November 20, 2020 at the Litigation Secretariat of the Council of State, the Association of Criminal Lawyers asks the judge in charge of summary proceedings of the Council of State, ruling on the basis of Article L. 521-2 of the Code of Administrative Justice :
1°) to order the suspension of the execution of the provisions of Order No. 2020-1401 of November 18, 2020 adapting the rules applicable to the courts of the judiciary ruling in criminal matters;
2°) to charge the State the sum of 4,000 euros under Article L. 761-1 of the Code of Administrative Justice.
act ;
It maintains that :
- it justifies, having regard to its corporate purpose, an interest giving it the capacity to
- the condition of urgency is satisfied having regard to the seriousness and immediacy of the infringement of the fundamental freedoms invoked ;
- there is a serious and manifestly unlawful infringement of the rights of the defense, the right of every detainee to have his situation treated in accordance with the rules of competence and procedure laid down in the Code of Criminal Procedure, the right to liberty and security, the right to personal and physical appearance of the accused at their criminal trial and the right to a public hearing;
- the contested order is unjustified and disproportionate since, firstly, the extended use of videoconferencing can be imposed by the judge without any possibility of challenging this decision or any criteria for assessing its appropriateness, secondly, its temporal and material scope is not justified in view of the particular gravity of the facts and the penalties incurred, thirdly, it creates a breach of equality between the accused and the defendants, and fourthly, it creates a breach of the principle of equality between the accused and the defendants in terms of the right to a fair trial and the right to a fair trial.

The judge may restrict the publicity of the proceedings without any health reasons being required;
- it was taken in disregard of the constitutional imperatives of the separation of powers and the independence of the judicial authority since it can be applied to ongoing criminal trials.
In a statement of defense, registered on November 24, 2020, the Minister of Justice, the Keeper of the Seals, concluded that the motion was rejected. He argued that the condition of urgency was not satisfied and that no serious and manifestly unlawful infringement of the fundamental freedoms invoked was being made.
The request was communicated to the Prime Minister and the Minister of Solidarity and Health, who did not make any observations.

II. Under No. 446724, by a petition, registered on 22 November 2020 at the Litigation Secretariat of the Council of State, the National Federation of Young Lawyers' Unions asks the judge in summary proceedings of the Council of State, ruling on the basis of Article L. 521-2 of the Code of Administrative Justice :
1°) to order the suspension of the execution of the provisions of the order n° 2020-1401 of November 18, 2020 adapting the rules applicable to the jurisdictions of the judiciary ruling in criminal matters;
2°) to charge the State the sum of 4,000 euros under Article L. 761-1 of the Code of Administrative Justice.
It raises the same pleas as petition no. 446712.
In a statement of defense, registered on November 24, 2020, the Minister of Justice, the Keeper of the Seals, concluded that the petition was rejected. He argued that the condition of urgency was not satisfied and that no serious and manifestly unlawful infringement of the fundamental liberties invoked had occurred.
The request was communicated to the Prime Minister and the Minister of Solidarity and Health, who did not make any observations.

III. Under No. 446728, by a petition, registered on November 22, 2020 at the Litigation Secretariat of the Council of State, the League for Human Rights asks the judge of summary proceedings of the Council of State, ruling on the basis of Article L. 521-2 of the Code of Administrative Justice :
1°) to order the suspension of the execution of the provisions of Order No. 2020-1401 of November 18, 2020 adapting the rules applicable to the courts of the judiciary ruling in criminal matters ;
2°) to charge the State with the sum of 4,000 euros pursuant to Article L. 761-1 of the Code of Administrative Justice.

In a brief in intervention, registered on November 23, 2020, the National Council of Bars, the Association Conférence des bâtonniers de France et d'outre-mer, the Association des avocats conseils d'entreprises, the Lille Bar Association and the Bobigny Bar Association concluded that the request of the Human Rights League be granted. They argue that they justify an interest in intervening and associate themselves with the means of the motion.
In a memorandum in defense, registered on November 24, 2020, the Minister of Justice, the Keeper of the Seals, concluded that the petition was rejected. He argued that the condition of urgency was not satisfied and that no serious and manifestly illegal infringement of the fundamental freedoms invoked had occurred.
The request was communicated to the Prime Minister and the Minister of Solidarity and Health, who did not make any observations.

IV. Under No. 446736, by a petition, registered on November 23, 2020 at the Litigation Secretariat of the Council of State, the French Bar Association, the Judges' Union and the Association for the Defense of the Rights of Detainees requested that the judge for summary proceedings of the Council of State, ruling on the basis of Article L. 521-2 of the Code of Administrative Justice :
1°) to order the suspension of the execution of the provisions of Article 2 of Order No. 2020-1401 of November 18, 2020 ;
2°) to charge the State the sum of 3,600 euros under Article L. 761-1 of the Code of Administrative Justice.
They argue that :
- their request is admissible since, on the one hand, they justify an interest giving them the right to act and, on the other hand, that the ordinance has not been ratified by the Parliament, it constitutes an act that can be appealed before the administrative judge;
- the condition of urgency is satisfied if the disputed measures have serious and immediate consequences for the public interests relating to the exercise of the rights of defense and the quality of criminal justice;
- there is a serious and manifestly unlawful infringement of the principle of respect for the rights of the defense and the right to a fair trial, which includes the right to appear physically before a judge, in that the contested measures are neither necessary, appropriate nor proportionate in the first place, that their temporal and material scope of application is not justified in view of the seriousness of their consequences on the exercise of the rights of the defense, secondly, that the criminal courts are currently in full operation and, finally, that they are specifically aimed at the litigant even though all the other actors in the proceedings may be physically present.

(canestriniLex.com unofficial translation, French original text here)

In a statement of defense, registered on November 24, 2020, the Minister of Justice, the Keeper of the Seals, concluded that the petition was rejected. He argued that the condition of urgency was not satisfied and that no serious and manifestly illegal infringement of the fundamental freedoms invoked had occurred.

In a memorandum in intervention, registered on November 24, 2020, the Lille Bar Association and the Bar Association of French Guiana concluded that the request of the French Bar Association, the Judiciary Union and the Association for the Defense of Prisoners' Rights be granted. They argue that they justify an interest in intervening and associate themselves with the means of the motion.
The petition was communicated to the Prime Minister and the Minister of Solidarity and Health, who did not produce any observations.

V. Under No. 446816, by a petition, registered on November 23, 2020 at the Litigation Secretariat of the Council of State, the National Council of Bars, the Association Conférence des bâtonniers de France et d'outre-mer, the Association des avocats conseils d'entreprises, the Lille Bar Association and the Bobigny Bar Association asked the judge in charge of summary proceedings of the Council of State, ruling on the basis of Article L. 521-2 of the Code of Administrative Justice :
1°) to order the suspension of the execution of the provisions of Article 2 of Order No. 2020-1401 of November 18, 2020 ;
2°) to enjoin the Government to repeal these provisions;
3°) to charge the State the sum of 5,000 euros under Article L. 761-1 of the Code of Administrative Justice.
They argue that :
- their request is admissible since, on the one hand, they justify an interest giving them the right to act and, on the other hand, that the ordinance has not been ratified by the Parliament, it constitutes an act that can be appealed before the administrative judge;
- the condition of urgency is satisfied if the contested order seriously and immediately impairs respect for the rights of the defense and the right to an effective remedy
before a judge;
- there is a serious and manifestly unlawful infringement of the rights of the defence
and the right to an effective remedy before a judge, since, on the one hand, the contested provisions make it possible to require the accused to appear by videoconference for all criminal hearings, regardless of the penalty incurred, without their consent being required, and, on the other hand, the provisions of article 4 of the same ordinance, which provide that the proceedings may be conducted in restricted publicity, constitute a sufficient measure to reduce the risk of contamination.
By a memorandum of defence, registered on November 24, 2020, the Minister of Justice, Keeper of the Seals, dismissed the motion. He argued that the condition of urgency had not been met and that no serious and manifestly unlawful infringement of the fundamental freedoms invoked had occurred.
The request was communicated to the Prime Minister and the Minister of Solidarity and Health, who did not make any observations.

After having summoned to a public hearing, on the one hand, all the applicants, and on the other hand, the Prime Minister, the Minister of Justice, the Minister of Solidarity and Health ;
Were heard at the public hearing of November 24, 2020, at 4 p.m.:
- Mr. Spinosi, lawyer at the Council of State and the Court of Cassation, lawyer of the Association of Criminal Lawyers, the National Federation of Young Lawyers' Unions and the League of Human Rights;
- the representative of the Association of Penal Lawyers ;
- Mr. Mathonnet, attorney at the Council of State and the Court of Cassation, attorney of the French Bar Association and others;
- the representative of the Magistrates' Union;
- Me Boré, attorney at the Council of State and the Court of Cassation, attorney at the National Council of Bars and Law Societies and others;
- the representatives of the Minister of Justice;
at the end of which the judge in chambers deferred the closing of the investigation to November 26, 2020 at 12 noon.

Having regard to the new briefs, registered on November 25, 2020, presented by the Keeper of the Seals, Minister of Justice, who maintains his conclusions and means ;
Having regard to the new memorandum, registered on November 25, 2020, presented by the National Council of Bars, the Association Conférence des bâtonniers de France et d'outre-mer, the Association des avocats conseils d'entreprises, the Lille Bar Association and the Bobigny Bar Association, which maintains its conclusions and its means ;
Having regard to the new memorandum, registered on November 26, 2020, presented by the French Bar Association, the Judges' Union and the Association for the Defense of the Rights of Detainees, which maintain their conclusions and their means;
Having regard to the other parts of the files ;
Having regard:
- the Constitution, and in particular its preamble ;
- the European Convention for the Protection of Human Rights and Freedoms
fundamental ;
- the code of criminal procedure;
- the public health code;
- the law n° 2020-290 of March 23, 2020; - the law n° 2020-856 of July 9, 2020 ;
- the law n° 2020-1379 of November 14, 2020; - the decree n° 2020-1257 of October 14, 2020; - the code of administrative justice ;

Considering the following:

1. The claims referred to above, presented on the basis of Article L. 521-2 of the Code of Administrative Justice, present the same issues for judgment. They should be joined to rule by a single order.

On interventions :
2. The National Council of Bars, the Association Conférence des bâtonniers de France et d'outre-mer, the Association des avocats conseils d'entreprises, the Lille Bar Association and the Bobigny Bar Association justify, by their statutory purpose, a sufficient interest in the suspension of the execution of the contested order. Thus, their intervention in support of application no. 446728 is admissible.

3. The Lille Bar Association and the Bar Association of French Guyana justify, by their statutory purpose, a sufficient interest in the suspension of the execution of the contested order. Thus, their intervention in support of application no. 446736 is admissible.

On the circumstances and the legal framework of the dispute :

(canestriniLex.com unofficial translation, French original text here)

4. According to the terms of article L. 3131-12 of the Public Health Code, resulting from the emergency law of 23 March 2020 to deal with the covid-19 epidemic: "A state of public health emergency may be declared on all or part of metropolitan France, as well as on the territory of the communities governed by articles 73 and 74 of the Constitution and of New Caledonia in the event of a public health disaster which, by its nature and gravity, endangers the health of the population". Article L. 3131-13 of the same code specifies that "A state of health emergency is declared by decree in the Council of Ministers on the basis of a report from the Minister of Health. (...) / The extension of the state of health emergency beyond one month can only be authorized by law, after the opinion of the committee of scientists provided for in article L. 3131-19". Pursuant to Article L. 3131-15 of the same code, "in the territorial districts where a state of health emergency is declared, the Prime Minister may, by regulatory decree issued on the report of the minister responsible for health, for the sole purpose of guaranteeing public health, "take a certain number of measures to restrict or prohibit travel, gatherings on the public highway and meetings "strictly proportionate to the health risks incurred and appropriate to the circumstances of time and place".

5. The emergence of a new coronavirus, responsible for coronavirus 2019 or covid-19 disease and particularly contagious, was declared a public health emergency of international concern by the World Health Organization on January 30, 2020, and then a pandemic on March 11, 2020. The spread of the virus on French territory has led the French Minister of Health to of solidarity and health and then the Prime Minister to take, as of March 4, 2020, increasingly strict measures to reduce the risks of contagion. To cope with the worsening of the epidemic, the above-mentioned law of March 23, 2020 created a state of health emergency in articles L. 3131-12 to L. 3131-20 of the Public Health Code and declared a state of health emergency for a period of two months from March 24, 2020. The law of May 11, 2020 extending the state of health emergency and supplementing these provisions, extended this state of health emergency until July 10, 2020 inclusive. The evolution of the health situation led to a relaxation of the measures taken and the law of July 9, 2020, organized an exit regime from this state of emergency.

6. A new progression of the epidemic has led the President of the Republic to take, on the basis of articles L. 3131-12 and L. 3131-13 of the Public Health Code, the decree of 14 October 2020 declaring a state of emergency as of 00:00 hours on 17 October throughout the national territory. On October 29, 2020, the Prime Minister issued a decree, based on Article L. 3131-15 of the Public Health Code, prescribing the general measures necessary to deal with the covid-19 epidemic as part of the state of health emergency. The legislator, by Article 1 of the law of November 14, 2020 authorizing the extension of the state of public health emergency and laying down various measures to manage the health crisis, extended this state of public health emergency until February 16, 2021 inclusive.

7. In this context, the order in dispute, dated November 18, 2020, issued on the basis of the authorization provided for by the combined provisions of article 11 of the law of March 23, 2020 and article 10 of the law of November 14, 2020, provided for various adjustments to the rules of criminal procedure "in order to allow the continuity of the activity of the criminal courts".

It is "essential to the maintenance of public order", as stated in its Article 1.

8. In view of the pleas raised in the applications referred to above, these must be regarded as requesting the suspension of the execution of the provisions of Articles 2 and 4 and of the second paragraph of Article 11 of this order.
On the conclusions tending to the suspension of the provisions of article 2 of the ordinance, relating to the extension of the videoconference :

9. Under the terms of article 2 of the order in dispute: "Notwithstanding any provision to the contrary, audiovisual means of telecommunication may be used before all criminal courts and for presentations before the public prosecutor or the public prosecutor, without the need to obtain the agreement of the parties. / The means of telecommunication used must make it possible to certify the identity of the persons and guarantee the quality of the transmission as well as the confidentiality of the exchanges. The judge shall ensure at all times that the proceedings are properly conducted and a record shall be drawn up of the operations carried out. / The judge shall organize and conduct the proceedings while ensuring that the rights of the defense are respected and guaranteeing the adversarial nature of the proceedings. The provisions of the sixth paragraph of Article 706-71 of the Code of Criminal Procedure shall apply; / The provisions of this Article shall only apply before the criminal courts once the investigation at the hearing referred to in Article 346 of the Code of Criminal Procedure has been completed. »

10. Under the terms of article 706-71 of the Code of Criminal Procedure: "For the purposes of the proper administration of justice, recourse may be had during criminal proceedings, if The provisions of the preceding paragraph providing for the use of audiovisual means of telecommunication are applicable before the court of judgment for the hearing of witnesses, civil parties and experts. They are also applicable, with the agreement of the public prosecutor and all the parties, for the appearance of the accused before the criminal court if he is detained. These provisions are also applicable to the hearing or interrogation of a detained person by an investigating judge, to the hearing of the parties prior to the placement in pretrial detention of a person detained for another reason, to the hearing of the parties prior to the extension of pretrial detention, (...), to hearings relating to the litigation of pretrial detention before the court of judgment, (...). ) the trial court, the interrogation of the accused by the president of the assize court pursuant to article 272, the appearance of a person at the hearing during which a judgment or ruling is handed down that had been reserved or during which only civil interests are decided upon, to the questioning by the public prosecutor or the public prosecutor of a person arrested under a warrant to bring, an arrest warrant, a European arrest warrant, a request for provisional arrest, a request for extradition or a request for arrest for surrender, to the presentation to the judge of liberties and detention, to the first president of the court of appeal or to the magistrate designated by him (. ...) if the person is detained for another reason, or to the interrogation of the accused before the police court if the accused is detained for another reason. In the case of a hearing at which a decision on remand in custody or the extension of remand in custody is to be made, the detained person may, when informed of the date of the hearing and of the fact that the use of this means is envisaged, refuse the use of an audiovisual means of telecommunication, unless its transport appears to be to be avoided because of the serious risk of disturbing public order or escape / (...)".

11. The plaintiffs argue that the provisions of Article 2 in dispute, in so far as they extend the cases in which a magistrate may use an audiovisual means of telecommunication without the consent of the person concerned, in particular when he is detained, beyond the hypotheses already provided for in Article 706-71 of the Code of Criminal Procedure, seriously and manifestly unlawfully infringe the rights of the defense and the right to a fair trial, as well as the right to an effective remedy, the right of every detainee to have his or her situation treated in accordance with the rules of competence and procedures established by the Code of Criminal Procedure, the right to liberty and security, and the right to personal and physical appearance of the accused during their criminal trial, guaranteed both by article 16 of the Declaration of the Rights of Man and of the Citizen and by the stipulations of article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

(canestriniLex.com unofficial translation, French original text here)

12. It results from the investigation, in particular from the elements produced by the Minister of Justice, the Minister of Justice, and from the debates at the hearing, that this increased use of videoconferencing is made necessary by the great practical difficulties encountered by the prison administration in carrying out the extractions of detainees in view of the particularly heavy constraints imposed by the current health situation and by the fight against the spread of the epidemic within the prison establishments and the judicial courts. Moreover, the contested provisions merely offer an option to the magistrates, who must, in each case, assess whether these difficulties justify the use of videoconferencing, particularly with regard to the state of health of the prisoner and the stakes of the hearing in question. It is also their responsibility, as provided for in the provisions in dispute, to ensure that the means of telecommunication used makes it possible to certify the identity of the persons and guarantees the quality of the transmission as well as the confidentiality of the exchanges, in particular between the lawyer and his client.

Finally, the use of videoconferencing can help avoid postponing hearings and thus contribute to the respect of the right of individuals to have their case heard within a reasonable period of time.

13. With regard to the litigation of pretrial detention in criminal matters before the investigating chamber, it is the responsibility of the president of the latter, taking into account the decisions of the Constitutional Council No. 2019-778 DC of March 21, 2019, 2019-802 QPC of September 20, 2019 and 2020-836 QPC of April 30, 2020, to ensure that the detainee has the opportunity to appear physically before the chamber with reasonable frequency.

14. However, the situation is different for the hearing before the assize court or the criminal court. The seriousness of the penalties incurred and the role given to the intimate conviction of the magistrates and jurors give a specific place to the oral nature of the proceedings. During the closing arguments and pleadings, the physical presence of the civil parties and the accused is essential, especially when the accused speaks last, before the closure of the proceedings. In the balance of interests, given the conditions under which recourse to these means of telecommunication is exercised, the elements mentioned in point 12 on the requirements for the proper functioning of justice are not sufficient to justify the infringement by the contested provisions of the founding principles of the criminal trial and the rights of the natural persons involved in the trial, whether accused or victims.

15. It follows from the foregoing that the provisions of article 2 of the impugned ordinance seriously and manifestly unlawfully infringe the rights of the defence and the right to a fair trial only in so far as they authorize the use of videoconferencing after the end of the investigation at the hearing before the criminal courts. Consequently, provided that the Minister of Justice, the Keeper of the Seals, does not seriously contest that the condition of urgency is met, the petitioners are entitled to request, to this extent, the suspension of the execution of the contested provisions. In view of the suspension thus pronounced, there is no need to enjoin the government to repeal these provisions.
On the conclusions tending to the suspension of the provisions of Article 4 of the Ordinance, relating to the publicity of hearings :

(canestriniLex.com unofficial translation, French original text here)

16. According to article 4 of the order at issue: "I. - The heads of jurisdiction shall define the conditions of access to the court, courtrooms and services that receive the public in order to ensure compliance with the health rules in force. These conditions shall be brought to the attention of the public, in particular by means of posters / II. - As an exception to the rules of publicity defined by articles 306 and 400 of the code of criminal procedure, the president of the court may decide, before the opening of the hearing, that the proceedings will take place in restricted publicity. Under the conditions determined by the president, journalists may attend the hearing / (...) Before the examining magistrate's chamber, (...) in the event that the hearing is public and the judgment is delivered in public session, the provisions of the preceding paragraphs shall apply / When the judge of liberties and detention must rule in public session on the matter of pre-trial detention, in the event that it is impossible to guarantee the conditions necessary to protect the health of the persons present, this magistrate may decide that the hearing will be held in the council chamber. In this case, and under the conditions he determines, journalists may attend the hearing. ».

17. The applicants claim that the provisions of Article 4 in dispute, which allow the judges to decide that the proceedings will be held in restricted publicity, seriously and manifestly unlawfully infringe the rights of the defense and the right to a fair trial, guaranteed both by Article 16 of the Declaration of the Rights of Man and of the Citizen and by the provisions of Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

18. However, since, on the one hand, these restrictions on public access to the hearing do not concern journalists and, consequently, allow the public to be informed of the content of the proceedings and thus ensure that they are sufficiently publicized, and, on the other hand, since it is up to the judges to ensure that they are justified and proportionate to the health situation at the time of the hearing, they do not seriously and manifestly unlawfully infringe the rights of the defense and the right to a fair trial.


On the conclusions tending to suspend the provisions of the second paragraph of article 11 of the ordinance, relating to the duration of its execution :

19. Under the terms of the second paragraph of Article 11 of the order in dispute: "The provisions of Articles 2 to 9 are applicable until the expiration of a period of one month after the cessation of the state of health emergency declared by the aforementioned decree of October 14, 2020, and extended under the conditions provided for in Article L. 3131-13 of the Public Health Code. »

20. The applicants claim that the impugned provisions of Article 11, in so far as they allow the exceptional measures provided for in Articles 2 and 4 to be maintained for a period of one month beyond the end of the state of health emergency, seriously and manifestly unlawfully infringe the rights of the defence and the right to a fair trial, guaranteed both by Article 16 of the Declaration of the Rights of Man and of the Citizen and by the provisions of Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
21.  However, the condition of urgency required by the provisions of article L. 521-2 of the Code of Administrative Justice cannot be considered as fulfilled with regard to this one-month extension since, in the current state of the texts in force, the state of health emergency will only end on February 16, 2021.

22. It follows from all of the above that the petitioners are only entitled, in the state of the investigation and with regard to the office of the summary proceedings judge, to request the suspension of the execution of the provisions of article 2 of the contested order as they relate to the hearings before the criminal courts.
On the costs of the proceedings :

23. In the circumstances of the case, the State should be charged with the sum of 1,000 euros to be paid in total to the claimants, for each of the claims, under Article L. 761-1 of the Code of Administrative Justice.

(canestriniLex.com unofficial translation, French original text here)


ORDER: ------------------
Article 1: The interventions of the National Council of Bars, the Association Conférence des bâtonniers de France et d'outre-mer, the Association des avocats conseils d'entreprises, the Lille Bar Association and the Bobigny Bar Association, on the one hand, and the Lille Bar Association and the Guyana Bar Association, on the other hand, are admitted.
Article 2: The execution of the provisions of Article 2 of Order n°2020-1401 of November 18, 2020 is suspended as far as they concern hearings before the criminal courts.
Article 3: The State will pay to the claimants the global sum of 1,000 euros, for each of the requests, under article L. 761-1 of the code of administrative justice.
Article 4: The surplus of the conclusions of the requests is rejected.
Article 5: The present order will be notified to the Association of Penal Lawyers, the National Federation of Young Lawyers' Unions, the League of Human Rights, the French Lawyers' Union, first named, the National Council of Bars, first named, and the Minister of Justice, Keeper of the Seals.
A copy will be sent to the Prime Minister and to the Minister of Solidarity and Health.