Gonzaga Journal of International Law

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Cite as:  Stéphane Enguéléguélé & Stéphanie Lourdel, Three Recent Arguments for the Expansion of Human Rights in French Criminal and Administrative Law, 1 Gonz. J. Int’l L. (1997-98), available at http://www.gonzagajil.org/.

THREE RECENT ARGUMENTS FOR THE EXPANSION OF HUMAN RIGHTS IN FRENCH CRIMINAL AND ADMINISTRATIVE LAW

Stéphane ENGUÉLÉGUÉLÉ, CURAPP-CNRS
et Stéphanie LOURDEL, Attorney

Translated by Cory Winchell & John Pascuzzi, J.D. Candidates
Gonzaga Law School

TABLE OF CONTENTS

Introduction

I. Supervision over the "wire-tapping" and "electronic eavesdropping" of telecommunications

II. The Use of Human Rights Law by French Administrative Judges

Conclusion

Introduction

International Human Rights Law represents the rule of law and liberty over arbitrary and oppressive political practices. It creates a harmony within judicial systems, helping to guarantee the benefactors of the law the protection of fundamental rights. International Human Rights Law responds to the problems of political suppression by the establishment of a unique criminal council, appointing directors from the differing World Nations. Certain world organizations (such as the United Nations and the European Counsel) have been in place since the end of the Second World War, serving in their capacity to curb political suppression of rights throughout the world using international criminal law.

Enactments and standards destined to assure the continued protection of Human Rights on an international scale serve a two-fold objective: first, to establish controls that are less formal yet more protective than the present criminal and administrative standards. Legislation regarding criminal and administrative law now governed by national standards (be they Penal Codes, or Administrative Statutes), for example, would become subrogate to international governing standards. International Human Rights Law would then become the authority governing the administration of prisoners in an effort to encourage the World Powers to observe a set of minimum standards. This minimum standard would serve to control arbitrary impulses world-wide regarding the treatment of political prisoners by establishing an international administrative body, benefitting all the nations of the world by prohibiting national governing bodies from imposing arbitrary and oppressive punishments upon political prisoners without due regard to the "superior interests of humanity."

The second objective is to reconcile national peculiarities and differences, by bringing them into conformity with certain "universal" rules of international criminal law. This would have the effect of guaranteeing that fundamental protections are offered by each nation regarding the judicial imprisonment procedures, while allowing them a large degree of national sovereignty. Human Rights would be further protected by increasing public awareness and channeling public action, which would demand of froward nations to "justify themselves" of any abuses in criminal or administrative proceedings.

This paper not only seeks to address, but hopes to encourage the realization of these two objectives within the French Administrative Law. As is known throughout the french judicial system [1], and ratified by the first legislature of the French Republic, Human Rights is nothing more than the universal expression of every human being of the most fundamental and cherished human attributes within us all. This paper seeks to demonstrate Human Rights in light of (1) certain important transformations within the realm of telephone services by European Human Rights tribunals, and (2) an examination of two recent decisions within administrative jurisprudence, demonstrating a more acute and dynamic adherence of French law to the concept of Human Rights.

I -- Supervision over the "wire-tapping" and "electronic eavesdropping" of telecommunications.

The eavesdropping and wire-tapping of telecommunication devices has inspired controversial political debates concerning the legal protections offered in criminal procedure [2]. While serving as an important tool in war against major crime (drug trafficking, terrorism, etc.), it has, however, posed certain problems raising doubts as to France’s dedication to criminal procedure. These problems have condemned France on two separate occasions (both the Kruslin and Huvig affairs) before the European Court of Human Rights. The Criminal Legislature has therefore found themselves constrained to legislate on the matter (the law of July 10, 1991), in the hopes of responding to the more pressing concerns of this important topic. Judicial bodies have played a key role of ameliorating this matter, by acting to recognize these rights prior to any lawmaking attempts. As has been well established by J. Pradel and A. Varinard [3], courts have permitted the implementation of "wire-tapping" through three gradual phases in the law. At first, "eavesdropping" or "wire-tapping" was not permitted except by order of a lower jurisdictional authority [4]. In the second phase, The Cour de Cassation then empowered the lower court judges with this authority, but only narrowly at first [5] in efforts to avoid the potential problems in the criminal law of defendants "hiding behind procedural arguments." [6] As rulings permitting the use of "wiretaps" became easier to acquire [7], the result was a sharp increase of arrests throughout France [8].

Article 8 of the European Convention on Human Rights regarding privacy opposes these legal encroachments [9]. Wire-taps must, according to the above-mentioned article, be "reviewed by law and found necessary to the defense of public order and the prevention of criminal infractions." It was exactly on the basis of this argument that France was condemned before the European Court on Human Rights in the two cases mentioned above [10]. The court criticized France not for the absence of formal law on this point, because existing law could have been properly utilized if it were analyzed in a positive light, but for the lack of sufficient guarantees of rights. They found that French law "does not possess sufficient clarity, and the scope and the authority has no adequate safeguards against abuse; most notably against suspect classes of individuals who can be place under judicially-approved wire-taps at the court’s leisure. [11]" After this censure on principle, the Cour de Cassation appeared to resist the findings of the Court of Strasbourg, but overall there now seems to exist within the jurisprudence a balance between the conflicting ideologies. Thus, the rulings of May 15, 1990 now serves to compensate for the judicial void that the Huvig and Kruslin cases seem to have created [12].

Nevertheless, law number 91-646 of July 10, 1991 has been enacted, legalizing "wire-taps." [13] However, old law continues to apply to "wire-taps" because not all conditions surrounding "wire-taps" are governed by the new law. This has created two limits concerning the legality of "wire-taps," as found in a Tournet ruling on October 9, 1980. On the one hand, there exists a legal strategy, and on the other hand a severe impediment to the rights of the defendant. "Wire-taps," therefore, become illegal when a police officials plays an active role: whether speaking to a potential defendant while hiding his true office [14], or listening in on the conversations between a defendant and his lawyer (or the person who brings charges against the defendant), whether the person be notified or not [15]. One retains certain legal protections against encroachments against the strategy of the above-mentioned actions. Certain rights of the defendant are held inviolate: as applicable to the attorney-client privilege, both from electronic wire-taps to conversations and from seizure of written privileged correspondence. The attorney-client privileges thus protects all conversation between the client and his or her counsel. Furthermore, written correspondences between a client and his attorney are protected and any seizure of the documents are also subject to exclusion as evidence [16]. Nevertheless, "wire-taps", seizures and electronic "eavesdropping" may, from now on, be admitted before a magistrate, as codified in articles 100 et al. of the French Code of Penal Procedure effective in 1991. In correctional matters, as in criminal matters, a magistrate can swear out a warrant for a wire-tap or any other similar device when the necessity of such an inquiry demands the interception, recording and the transcription of telephone conversations (Article 100). This legislative finding, which is not jurisdictional in scope, and therefore not susceptible to appeal, must nonetheless comport with "all elements of identification by the intercepting officer, the infraction which motivated the interception, and the time and duration of intercepting the conversation." (Article 100-1) Such interceptions cannot any case be longer than four months in duration, even if renewal is possible under the conditions of Article 100 of the French Code of Penal Procedure. Precise procedural formalities are prescribed to supervise interceptions of communications (be it the placement of the recording devices, the processes of translating verbal conversations into written transcriptions to be placed in the files, and the destruction of the recordings) appears to serve as protections to the defendant.

We now finds ourselves in the position where, confronted by the intensification of jurisdictional control over judicial matters of criminal procedure, the law is adapting, integrating and conforming to a larger international plan, which is serving to guarantee important judicial constraints. This same phenomenon is appearing in administrative law, but it is taking a different, if not more original, tack. The unique judicial character of French administrative law creates constraints making the adoption of international standards more difficult [17]. However, two recent movements within French jurisprudence indicate that administrative law judges should have the power to refer more often to Human Rights Law in administering decisions.

II -- The Use of Human Rights Law by French Administrative Judges

We now wish to offer two current arguments for the application of Human Rights Law by Administrative Judges, in matters of police administration (part A) and of disciplinary procedure (part B).

A) It is well established that administrative police are subject to the tight control of judges. The National Counsel has, in effect, stated in its "Daudignac Jurisprudence" (June 22, 1951, quashing of a decision of a mayor who outlawed an activity that he had only the right to regulate) that the scope of the police must be limited in its time and must be proportionate to the problems specified; the administrative judge, hence, is instructed to require the proper scope of police appraisal in situations that the administration wishes to regulate. It is also well known that the range of constraint characteristic of administrative police demands that affirmative protection of civil liberties be established [18]. Moreover, it is the association of these objective policy considerations that has traditionally defined the "public order" that the administrative police officer seeks to assure. After the "Doyen Hauriou", government Commissioner Mayras affirmed in his findings regarding the Society of Lutenian Films (December 18, 1959) that "if administrative police work is defined by its goal of ‘maintaining public order’ it can only act in a ‘outward or exterior’ manner; administrative authority cannot prevent moral disobedience without impeding conscience." This analysis is not grounded solely in the hostility toward the impediments against the freedom of conscience, but also to a plethora of texts which seek to establish public order by the prevention of overt disorder. The law of December 22, 1789 and January 8, 1790, regarding departmental organization, state, in general, that "departmental administrators are charged with maintaining the health, safety and public tranquillity"; the law of April 5, 1884 which defines the powers of each Prefect reasserts these principles which are now found in Article L-131-13 of the Communal Code. This same text, defining the scope of authority for the general Administrative Police, constitutes what R. Chapus calls the "traditional trilogy"--that being security, health and public tranquility.

Administrative Judges ought to allow, in certain limited cases, the intervention of municipal police in administrative police matters in order to place a check on potential misconduct which may create ethical violations. Judges, for example, are authorized to close certain houses of "ill-repute" deemed not suitable to the public morals [19], or control the decency of funeral inscriptions [20]. On the same note, J.H. Strahl and D Chauvaux in their hornbook of Administrative Jurisprudence (December 20, 1995), noted that the National Council has recently decided that it will give back to the local mayors certain policing powers where a substantial trouble contrary to public order requires it such as the ability to outlaw of placement of emblems upon funeral monuments which seek to elevate the monument above its true character [21]. Notably, the judicial test with regard to matters of administrative police work has always been the objective of "public order." This finding is explicitly reinforced by the legal analysis of Society of Lutenian Films which found that the immoral character of a film, when taken in light of regional tastes and circumstances, can represent a "public disorder." [22] It is by dodging this so-called "healthy" jurisprudence that the Conseil d’Etat is authorizing the taking-into-account of subjective considerations which permit "public order" arguments to refer to Human Rights considerations in international incidents. The Conseil d’Etat is now proposing a new definition of "public order" by enlarging the scope of the general administrative police to the broader issues of Human Rights. By the decisions of the Assembly of October 27, 1995, [23] the Conseil d’Etat, following the conclusions of the government Commissioner Frydmann, explicitly found that the respect of human dignity constitutes an integral factor of "public order." Administrative authority is founded on the premise of stopping acts which aggravate or offend human dignity (such as dwarf-tossing) in the absence of local ordinances.

Appealing to the doctrine of Human Rights is most explicitly advocated by Patrick Frydmann who states, "a notion, serving to pander to the most base instincts, which reduces in rank a handicapped person by reason that his handicap cannot seem to find a place in civilized society...the dignity of a human being, if it is in fact an absolute concept, can never allow the accommodations or concessions of subjective values to particular individuals." Annotators of these rulings have found that this only serves to further reinforce the police administration regime. We can only agree with the annotators in that these rulings serve the exact inverse of their purpose. That the Conseil d’Etat refuses to formally recognize and accept International or European Law does not diminish the need of the higher notions of Human Rights. These rulings should be viewed as a systematic manifestation which refer to Human Rights as a "positive" legal notion [24]. Fundamental human rights, guaranteed on an international level, are therefore implemented at the national level by domestic judges.

B) Another illustration of these findings are found in matters of disciplinary procedure.

Article 6-1 of the European Convention of Human Rights establishes what is generally referred to as the "right to equitable process" which opens the court to the public. This article maintains that "All persons have the right that their cause be heard publicly before an impartial and independent tribunal established by law set up to hear matters and disputations of civil issues or accusations founded in criminal proceedings. In Debout [25] and Subrini [26], the Conseil d’Etat handed down rulings, stating that certain disciplinary proceedings are "sui generis proceedings" and need not submit to article 6-1 of the European Convention of Human Rights by allowing the public to gain entry. The problem stems from the ordinal character of particular disciplinary actions, that are established to insure obedience to the Codes of Professional Ethics. The image of the business profession are balanced against the potential of allowing the particular indiscriminancies of corporate persons to come to light, contrary to the honor and respectability of the business profession [27].

The problem proceeds with the same difficulty of knowing if the disciplinary proceedings is similar to a dispute carrying on the "rights and obligations of a civil character" or on the "accusations of criminal matter." In the 1990's french law began to open itself to the obligations of disciplinary proceedings by article 6-1 [28]. A February 1993 decree imposed, for example, the publicity for disciplinary hearings for doctors, dentists, and "sage femmes". The administrative judge has held a "strict" court since the July 29, 1994 judgment [29]. He admits that the central commission of social aid cut disputations over the rights and obligations of civil matters, when it ruled on the relative cost of recuperation of litigation for social aid. It is for this purpose, concerning the "excess of power" directed against the November 27, 1991 decree organizing the profession and regulating the disciplinary procedure of lawyers, that the Conseil d’Etat, following expert Marc Sanson in administrative law, aligned the administrative law in the subject of "discipline over the judiciary" to the European Convention of Human Rights. In the decision of the "Maubleu" Assembly of February 14, 1996, it recognized a character by a means not to recognize the stipulations of article 6-I [30]. Introducing in administrative law a principle issued by the European Human Rights Law, the Conseil D’Etat reconsidered whether all persons within ordinal jurisdiction the right to have his or her cause heard publicly. One sees a new illustration of the progressive harmonization of domestic law with the law of international human rights.

Conclusion

The international protection of these human rights helps to govern state action, especially in criminal matters: dedicated to the mandate of the "right of all men to law." The objective is to accord individuals exposed to criminal repression a minimum guarantee. The questions that must be posed, by way of conclusion, is that to know at what period does the guarantee become pertinent, especially in regard to the findings of the European Convention on Human Rights concerning the manner of safeguarding guaranteed fundamental rights. The Convention has, in effect, underscored these fundamentals as imperative to protecting human rights. Article 15 grants to the states the ability to detract, in certain circumstances, the protection of rights and freedoms guaranteed by the European Convention of Human Rights, when the security of the state and the protection of the public order are threatened.

While affirming that the action of the public authorities remain only in these situations, "the states cannot do whatever they want, whenever they want, however they want, the necessity itself does not escape the law" [31]. The theory of the necessity of the state, which inspires Article 15, evokes the paradox situation where the state, at the risk of disappearing, detracts from the rules of State law, under the guise of state efficiency or expediency.

In "Lawless," July 1, 1961 and "Ireland v. Great Britain," January 18, 1978, the Cour de Strasbourg heard the cases specifically to control acts taken in exceptional situations, had the occasion to state precisely that human rights must, even these extremes conjectures, be protected: the European judge seemed at first to control the opportunity to apply Article 15 since it gives the notion of "public danger" a precise definition; in his sense, the public danger aimed at in this article to justify the detractive actions is "a situation of crisis or of exceptional and imminent danger which affects the gathering of the population and constitutes a threat for organized life in the community composing of the state"; it is therefore the necessity to save democracy faced with the grave perils, that legitimize the use of Article 15; then, the Court controls the proportionality of the measures taken with the perils; it verifies that they are neither excessive nor exaggerated; here, as shown by M. Delmas-Marty and G. Soulier, "the ‘raison d’Etat’ cannot be a primary or a preemptory reason" [32]. This control even more narrowly exercises itself on the limitation brought by the authorities to the fundamental right of people. It only authorizes those limited dangers enumerate in Article 15. Thus, contradicting itself, the State took measures not dictated within the context having as an objective the privatization of liberty. (Guzzardi v. Italy, November 6, 1980; Bauman v. Belgium, February 29, 1988) or who institutes it in the conditions that are not rules in that they do not respect the guarantees of Habeus Corpus (Winterwerp v. Netherland, October 24, 1979; De Wilde v. Belgium, June 18, 1971). The restrictions permit the Court to manage the sovereignty of the states, since the control is limited by the idea of national latitude [33]. Even in urgency, state action finds itself limited by human rights that the public powers cannot take back . Article 15 addresses a reattachment to the normative constraints torn by the European law, but is does not authorize the grave violation of fundamental rights of people.

The international politics of human rights have, as a primary objective, the protection of fundamental rights and freedoms; this objective necessitates a participation and strict and active collaboration by the States, integrating international norms through the national judicial systems. One cannot doubt that the generalization of such a logical policy is compatible with the protection of human rights, as espoused by reaffirmation the international plan of 1948.

Notes:

1. After the criminal code of 1994 was integrated into the criminal legal system (the application of criminal law at the time, interpretation of the criminal law, personalization of criminal repression . . .), the reforms of criminal procedure created by the laws of January 4 and August 24, 1993 recognized in effect the inclination toward the law of human rights to structure the guidance of the criminal policy. It is also this conviction in the superiority of international law over domestic law that has permitted to restrain within reasonable limits the recent reforms of the law relative to the condition of entry and residence of strangers in France. On the new criminal code seen in: Poncela, P "Dispositions generale" in Revue de science criminielle et de droit compare, July/ September 1993, p. 455. On the aspects of criminal procedure this movement seen in: Pradel, J "Les droits de la personne suspect ou poursuivi depuis la loi," no. 93-1013, August 24, 1993, modifying that of January 4, 1993. "Un legislateur se muant en Penelope ou se faisant ferfectionniste" in Recueil Dalloz Sirey 1993, 41eme cahier Chronique no. LXXVII.
2. In the 14th edition of their treaty on criminal procedure, R. Merle and A. Vitu have already shown the imperfection of evidence from principles of rules of tapping telephone lines. For those "the principle of the admission of tapping is not L'ARBI of serious critics: further that it constitutes a trick contrary to the loyalty required in all occasions of the magistrate instructor and of those that he delegates by judicial commission, the conduct of the listening appears contrary to the law . . . Alone legislative intervention could suppress the difficulties of this matter." Merle, R., Vitu A. Treaty of Criminal Law. Criminal Procedure, Edition Cujas 4th edition, 1979, no 130.
3. Pradel, J., Varinard, A., Les grands arrets de droit criminelle [The big decisions of criminal law} Tome 2 Dalloz 1995, p. 122.
4. Criminal Court of Appeals, June 26, 1979, Pellegrin.
5. Pradel, J. Varinard, A. op cit.
6. Criminal Court of Appeals, October 9, 1980, Tournet D191, p. 322. In the decision the court decided the manner too explicitly that "the interception of the telephone communication by the order of the judge is lawful, only in the case of opening a stratagem or in the case of attacking the rights the defense."
7. Criminal Court of Appeals, July 23, 1985, Criminal Court Case, November 4, 1987; also Paris, June 27, 1984.
8. Elsewhere since 1970, the law of July 13, 1970 has set up a misdemenor correctional registry effective in the private sector without the consent of persons to which their voice had been intercepted.
9. European Convention on Human Rights, April 24, 1990, cases KLruslin and Huvig.
10. European Convention on Human Rights, previous citation.
11. Criminal Court of Appeals, May 15, 1990, Bacha.
12. See Pradel, J., "An example of the restoration of criminal legality: the rules of interception of communications issued by the voices of the telecommunicating." Commentary of the law, no. 91-646, July 10, 1991, Dalloz 1992 Chronical p. 49.
13. Court of Appeals, United Chambers, January 13, 1988, Wilson.
14. Criminal Court of Appeals, June 12, 1952, Imbert JCP 1952 II 7241 Brouchot; reproduced in Pradel, J., Varinard, A., Les grands arrets du droit criminelle.
15. Criminal Court of Appeals, March 6, 1958.
16. It is not only referenced to the evolution of the Council d'Etat jurisprudence on the relationship between the international treaty and the contrary posterieur law: by virtue of the "jurisprudential matter" the adminstraive judge itself refused a long time to make to surpass the treaty on the law of the treaty; that is not until 1989, that in the Nicolo decision, the Council d'Etat modified its jurisprudence. The same conservatism is again found in the jurisprudence of the Coucil in the invocation of its dispositions of a European directive to apply it to a recourse in excess of its powers or an exception to the illegality raised against an individual decision taken on the foundation of a rule to which the legality finds itself contested against (Jurisprudence, Cohn Benedict 1978); see also the diffficulty adaptation of administrative law to the technique of RENVOI PREJUDICIEL ORGANISEE by Article 177 of the Treaty of Rome.
17. It comes again out of "jurisprudence Benjamin" (Cousuil d'Etat May 19, 1933) that the timely measures and individuals not justifying themselves in the matter of the police that if the adminstrer not dispose any other means to conjure up the perils. Teh administrative police are, by reason of their intrinsic character freely above the control of juges, who watch scrupoulously the guarantees of individual freedoms.
18. Conseil d'Etat Assemblee, February 4, 1949.
19. Conseil d'Etat, December 17, 1909, Chambre Syndical de la corporation des marchands de vin et liquoristes de Paris, Recueil Lebon, p. 990.
20. Conseil d'Etat, July 28,, 1936, Assiation Laissez-vivre-SOS futures meres, Recueil Lebon p. 235; observations of the opposition on the monument to the dead bunch carrying the phrase, "to the three million children killed by abortion." See Strahl, JH, Chauvaux, D. "Chronique general de jurisprudence administrative francaise" in Actualite juridique de droit administratif. December 20, 1995, p. 880.
21. The Conseil d'Etat has already on this occassion decided that the local circumstances can drive the authority of the police to aggravate the measures of the police generally taken by their superiors. Conseil d'Etat April 18, 1902. Commune de Neris- le Bains Receuil Lebon, p. 275.
22. Conseild'Etat Assemblee, October 27, 1995, Commune de Morsang-sur-Orge Req no. 136727 and Conseil d'Etat Assemblee, October 27, 1995, Ville d'Aix-en-Provence Req. no. 143578. These decisions are published in the Actualite juridique de droit administratif du December 20, 1995, p. 942.
23. The civil judge seems to be allied furtherst from this area; one dreams of decision by full assemblies of 1991, given the power formed in the interest of the law by the general procurer next to the Court of Appeals, which condemn the name of inalienablitily of the human body, of the state of the people, and to the dignity of the human person, the substitution of maternity. See Cour de Cassation Assemblee pleniere May 31, 1991, Dalloz Sirey, 1991, p. 417..
24. Conseil d'Etat Section 27, October 27, 1978, Beginining conclusion Labetouelle. Recueil Lebon p. 395.
25. Counseil d'Etat Assemblee, July 11, 1984. Subrini conclusions Genevois. In Actualite juridique de droit administratif 1984, p. 534..
26. It is by example analyzing that which makes the Commisioner of the Genevois government in the conclusion under the Subrini decision, Dalloz Sirey 1985, p. 150.
27. The Court of Strasbour conseders that the disciplinary tribunal divide the contestations of civil character since their decisions tend to limit the right to exercise the profession. See for example the European Court of Human Rights, June 23, 1981. The Count Van Leuven and De Meyere; European Court of Human Rights, November 3, 1987, H. v. Belgium.
28. Conseil d'Etat Section July 29, 1994. Department de l'Indre. Recueil Lebon p. 363; reproduced in Actualite juridique de droit administratif 1994, p. 691.
29. Conseil d'Etat Assemblee, February 14, 1996, Maubleu Req. no 32369 reproduced in Actualite juridique de droit administratif, May 20, 1996, p. 403.
30. Delmas-Marty, M., Soulier, G., "Encadrer ou Legitimer la raison d'Etat" (To Frame or Legitimize the raison d'Etat) in Delmas-Marty, M., Raisonner la raison d'Etat, PUF Collection, Les voies du droit, 1989 p. 21.
31. Delmas-Marty, M., Soulier, G. op cit.
32. Ibid p. 104.