A sad day for the due process

I told many friends that I was afraid of the French Constitutional Council (“Conseil constitutionnel”) hesitating to censor twice the same policy of creating semi-automatic mass sanctions. However, despite this concern, I did not imagine that it could make a decision like the one it has just adopted.

The Constitutional Council has chosen to interprete its own 2002 case law on penal ordnances (simplified procedure with no contradictory hearing, asssociated with a single judge decision) in a very dangerous manner. In 2002, it had approved the application of this procedure to penal sanctions connected to the driving code. it has approved it because two factors were present: there was a possibility of refusing the simplified procedure and going a normal process, even though the sanctions are likely to be much tougher when the case is lost ; AND the nature of proofs collected by police officers left little doubt on the reality of the offense and the identity of its author. But, here is what it says now (my translation):

the extension of the application scope of this procedure [penal ordnances] to IP infringement committed through means of electronic communication and the possibility that a sanction of suspending the access to the Internet would be pronounced under this procedure are not contradictory to this principle [of equality in front of the law].

The right to a due process is not just equality (between defendants) in front of the law. It calls for the respects of the rights of the defence, as the Constitutional Council powerfully said on June 10th, 2009. To dare to pretend that the extension of penal ordnances to an alleged IP infringement in the frame of the procedure put in place by the HADOPI 1 and 2 laws does not offend the rights of the defense could be seen as a joke if it was not so serious and danger-prone for the due process at large. The Constitutional Council rewrote its case law as if it would not require the two precautions that led to the 2002 decision to be both present, as if the possibility of rejecting the procedure would exonerate it from the flaws of its applications in cases of on-line IP infringement for all those who will not dare or not have the means to reject the procedure.

Will many people be sanctioned semi-automatically on the basis of the non-proofs brought forward in the HADOPI procedure (an issue on which the council has carefully avoided to express a view). Many doubt it, and if indeed many are sanctioned, there is no doubt that one day, a case will be brought in front the European Court of Human Rights. However, there is another danger: the government risks being encouraged to multiply such semi-automatic mass sanction mechanisms. The United States populated their jails with an analog (though different) trend from the 1960s, to the point of competing now in terms of number of prisoners with all but the worse dictatures. The Council with have opportunities to prevent such a trend, but, in my opinion, it missed a key opportunity to defend the due process.

What can we do now.? Of course, we can and must defend the rights affirmed in the 10 June 2009 decision. Call the European Parliament and the European Commission to their duties to defend due process as a principle in the last phase of the negotiation on amendment 138 and its possibie rewordings. If you are in the vicinity, attend the conference organized by Creation-Public-Internet t Sciences Po Paris on Monday 26 October 2009 at 7pm, where artists and policy makers will react to the creative contribution proposal tabled by this coalition. Also if you happen to be near Paris, support some of those who fought against the absurdities of HADOPI laws by attending the presentation of the Les guerres d’HADOPI (the HADOPI wars) book, Thursday 20 October at the Fouquet’s … and of course, if you read French, by buying the book.

This post is also available in: French

Comments are disabled for this post