L’article 60 of the customs code occupied part of the hearing of the Bourges Criminal Court, this Friday, March 18. Me Eugène Bangoura, who defends the interests of a forty-year-old man suspected of money laundering, has indeed filed conclusions for the purpose of transmitting a priority question of constitutionality (QPC) to the criminal chamber of the court of cassation, which can then submit this question to the Constitutional Council.
The case, namely the transport of 47,000 euros in cash in the door trim of a vehicle checked by customs on February 10, 2020 at the A20 Vierzon Nord tollbooth, was therefore not judged on the bottom.
A dinosaur “
In his argument, Me Bangoura questioned Article 60 of the Customs Code, a “dinosaur” which came into force in 1949 which has not since been amended or modified and which, according to the lawyer , “more suited to the legal order”.
To support his demonstration, he relied on the 1958 Constitution which stipulates that “the judicial authority is the guardian of individual freedom”.
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The lawyer notably highlighted the fact that customs controls are implemented without the gaze of the judicial authority and even without its authorization; that the space of time during which a person is immobilized during a check, sometimes for several hours, and his vehicle searched, is not subject to any legal framework.
“It is not a police custody, nor a customs detention. No right is notified to the controlled person during this time period. We are there, a little suspended, deprived of freedom, without knowing in what legal framework we are. During this time, which lasted a little over three hours for my client, the judicial authority was not notified, no right was notified. And this even though article 60 in its writing “does not allow any measure of coercion”.
Would there be a state of exception in the rule of law?
For Me Bangoura, this time of control undermines the freedom to come and go, moreover without time limit provided for by law. “Would there be a state of exception in the rule of law? “Questioned the lawyer recalling that, in common law and excluding flagrante delicto, written authorizations from the public prosecutor are necessary for any search of a vehicle during a roadside check operated by the police.
For the lawyer, article 60 of the customs code in its wording undermines the exercise of constitutionally guaranteed freedoms: “This is no longer admissible. “.
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Joel Garrigue (public prosecutor of Bourges citing Talleyrand)
Joël Garrigue, public prosecutor of Bourges, admitted that “indeed, questions arise”. Like Me Bangoura a few minutes earlier, he notably mentioned the last judgment rendered three weeks ago by the court of cassation which annulled a procedure in which a customs control was carried out on the basis of Article 60 because this control was carried out without the presence of the driver of the vehicle. This amounts to saying that the Court of Cassation, which had previously implicitly recognized the possibility of a coercive measure, now considers that coercion must be exercised against the driver to carry out a customs check.
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“The position of the Court of Cassation is changing somewhat,” said the prosecutor. One can wonder if the position of principle is still in tune with the times and in line with the evolution of the law. “He therefore relied “on the wisdom” of the court while quoting Talleyrand: “By dint of relying on principles, they will end up giving in. »
The Bourges Criminal Court is expected to render its decision on April 1.