Is containment legal?

• On social networks, the legality of confinement is considered illegal with reference to various recent court decisions.
• The lawyers of citizens who did not respect confinement on several occasions indeed raised priority questions of constitutionality (QPC) transmitted to the Court of Cassation. The highest court has indicated that it will examine their seriousness.
• These QPCs relate to the legality of sanctions, more than to confinement proper.

Last Thursday, a resident of Melun was imprisoned after being sentenced to four months in prison for failing to comply with confinement on multiple occasions.

This "total deprivation for all of our freedoms" by a French state which imprisons "recalcitrants" has been singled out on social networks in recent days. But here, for the same, this confinement would be simply illicit ...

Containment is a police measure, not a health measure. Toulouse: lawyers contest the legality of confinement #PlusJamaisCa #OnNoublieraRien pic.twitter.com/g9jNmOsOCq

For this, they rely on recent decisions taken by certain jurisdictions, whether in Poitiers, Bobigny or Toulouse.

And if, on Thursday in Melun, the repeat offender was convicted, the similar cases examined by the correctional court of the Pink City the same day were, them, the subject of a release. However, they had also been fined more than three times for not having presented the famous certificate necessary for any movement since the start of confinement. And they risked up to six months in prison and 3,750 euros in fines.

But their lawyers raised at the hearing a priority question of constitutionality (QPC), as reported by La Dépêche du Midi in an article titled "Toulouse: lawyers contest the legality of confinement".

A request deemed admissible by the criminal court, which decided to transmit this QPC to the Court of Cassation and, pending its response, stayed the proceedings and released the defendants.

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If confinement is at the heart of the debates, it is not its legality as such which will be examined, but the sanctions which result from it when it is not respected.

“The QPC procedure raises the question of the constitutionality of the text on which the proceedings are based. For us, it is the crime of non-compliance that is unconstitutional, ”insists Maître Sébastien Delorge, one of the three Toulouse lawyers who does not question the health decisions taken to limit the pandemic.

In his sleeve, he advances several justifications. The first is the vagueness even around the decree establishing the regulations on travel. "The decree does not speak of a certificate but of a document and does not say that it cannot be completed in pencil, for example. Besides, what does it mean a compelling family motive, a purchase of basic necessities? It is too vague, it can be interpreted and does not meet a requirement of precision necessary to establish the legality of the offense and thus avoid the arbitrary ”, insists the lawyer for whom it is necessary that the judges are guarantors of freedoms individual.

Like his colleagues from Poitiers and Bobigny, the lawyer highlights the provisions of the famous 4th paragraph of article L.3136-1 of the Public Health Code which allow prosecuting free riders. According to him, they have never been found to be in conformity with the Constitution by the Constitutional Council and therefore infringe rights and freedoms.

After Bobigny and Poitiers, the Paris judicial court sends the @Courdecassation a QPC against the crime of repeated violation of confinement. Proof that this new crime poses a serious problem.

Well done colleagues! # Etatdurgencesanitaire # DDHC1789 https://t.co/BeyFnMkZgk

In particular to the fundamental principle of presumption of innocence. “The breach of confinement results in a ticket, but as in any ticket, there is a 45-day appeal period. Now, we punish people for being verbalized more than three times in thirty days, but if we dispute one of these three tickets, it is no longer final and we are always presumed innocent, "continues Maître Sébastien Delorge.

[# Covid19] The criminal chamber is seized on April 9 of priority questions of constitutionality (#QPC)
on art. L.3136-1 al.4 of the public health code, created by the law of March 23, 2020 to deal with the COVID-19 epidemic. More info >> https://t.co/lOQvM2eWlh

So many arguments that will be closely scrutinized by the Court of Cassation. After being seized, it undertook on April 9 "to respond as soon as possible" and to judge the seriousness of these QPCs. If that were the case, it will then transmit to the Constitutional Council, which will then have to rule and rule.

A disputed file

In the meantime, many lawyers have now decided to invoke this QPC in similar cases. To prevent the breach of confinement from being treated as an offense, black dresses have found another solution to avoid imprisonment for their client.

On April 9, in Rennes, a lawyer raised a nullity of procedure during the immediate appearance of his client, a young man of 19 years in offense five times.

Brilliant decision obtained by @VCPavocate and Rémi Cassette before the Criminal Court of Rennes: the ADOC file cannot be used as a basis for proceedings for violation of a confinement measure because the text defining this file does not provide for such recording. https://t.co/scOp8KQ1eh

At each check, his offense was recorded in the Adoc file, which contains all the traffic-related fines. A file diverted from its primary function and therefore containing illegal information and not validated by the CNIL according to the lawyer. The prosecution has appealed the court's decision.

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