The priority question of constitutionality (QPC) has imposed itself in the jurisdictional landscape in less than ten years. The voluntarism of Jean-Louis Debré, President of the Constitutional Council until 2016, who has gone through the bars of the country to do education and publicity of these public hearings, now filmed and broadcast live on the Internet, contributed to this success.
His successor, Laurent Fabius, who dreams of renaming the QPC in “Citizen question”, for its part, set up mobile hearings in courts of appeal and administrative courts of appeal in the provinces to bring the institution closer to the litigant. The QPC nevertheless remains a matter of specialists, with around sixty decisions per year.
It is above all to the formidable efficiency of the procedure that the innovation introduced by the constitutional revision of 2008 owes its prosperity.
“The added value of a QPC, when it succeeds, lies in the energy and efficiency of the resulting measure, that is to say the repeal of a legislative provision deemed not to comply with the Constitution, says Patrick Wachsmann, professor of public law at the University of Strasbourg. Basically, the Constitutional Council has often transferred the case-law solutions developed by the European Court of Human Rights to its analysis. “
In 2010, on the subject of police custody, as in 2020, on the subject of detention conditions, French law was deemed contrary to the European Convention on Human Rights by the Strasbourg Court, before the Constitutional Council does not censor these provisions. But it is this censorship that forces the legislator to vote a new law in a few months. “The QPC is at least as much a legislative reaction accelerator as a factor of novelty in the submission of the law to the Constitution”, sums up Patrick Wachsmann.
A real upheaval
However, the litigant behind the QPC does not always benefit from this efficiency. A total or partial censorship of the contested provision, which has happened in 30% of cases, sometimes brings no benefit to the author of the question. The Council may decide to delay the effect of a repeal in time to avoid a legal vacuum. According to a study commissioned by the Constitutional Council from a team from the University of Toulouse-I-Capitole, these “Platonic repeals”, without concrete effects for the litigant at the initiative of the appeal, are insufficiently motivated. Above all, the case law relating to “The useful effect” of its decisions “Lack of consistency”, academics note.
Progress is therefore to be made, but the revolution has indeed taken place. It transformed the role of the Constitutional Council. “Until 2008, he was integrated into parliamentary procedure, intervening before the promulgation of a law. From now on, its intervention is enshrined in a procedure underway before the judicial or administrative courts. Its decision on a QPC becomes a moment in the production of a judgment ”, explains Dominique Rousseau, professor of constitutional law at the University of Paris-I-Panthéon-Sorbonne, who sees it as a real “Upheaval”.
The central role of the secretary general
The Court of Cassation and the Council of State got used to it and, not without reluctance at the beginning, let the Constitutional Council take its full place in this process. For Dominique Rousseau, this constitutionality check counterbalances “The executive power since it is he who has the essential of the initiative of the laws vis-a-vis a Parliament weakened by the Ve Republic “.
There remains the debate on the composition of this cenacle set up as a constitutional court. You don’t need to be a recognized lawyer to be appointed. Alongside the magistrates or academics who have sat there are many former ministers or prime ministers, leaving the Secretary General, still an eminent jurist from the Council of State, a central role behind which some suspect an influence. “The body should now be at the height of the function”, considers Dominique Rousseau.
This article is produced within the framework of a partnership with the Constitutional Council, on the occasion of the ten years of the priority question of constitutionality.
To see: “Ten years of citizens’ questions”
On November 26, at 9 am, the Constitutional Council broadcasts the online program “QPC 2020. Ten years of citizens’ questions”, hosted by journalists Caroline Blaes and Ali Baddou.
This educational event for the general public starts with a word from the current President of the Constitutional Council, Laurent Fabius. The show is then built around three highlights. First, an inventory of the priority question of constitutionality (QPC) today: what does it consist of, what is its record, what are the benefits for citizens and what are its limits? The program then traces the history of the QPC: its genesis, the brakes and reluctance until its creation, with a testimony from Robert Badinter. The program also raises the question of the future of this measure: what are the avenues for development of the QPC? Can its scope of application expand? What training for judges and lawyers?
Also to discover, a focus on several emblematic cases of the QPC, from the presence of the lawyer in police custody to measures to combat terrorism.
With Emmanuel Macron, Eric Dupond-Moretti, Robert Spano, Bruno Lasserre, Chantal Arens, François Molins, Philippe Bas, Yaël Braun-Pivet, Louis Boré, Arnaud de Chaisemartin, Céline Cooper, Christian Behrendt, Anne Levade, Mathieu Disant.
To follow the show on November 26, then in replay, go to qpc2020.conseil-constitutionnel.fr and on lcp.fr