Can Xavier Bertrand introduce minimum sentences without modifying the Declaration of Human Rights?

Who, Léa Salamé or Xavier Bertrand, knew best his constitutional law during their brief exchange on a campaign proposal of the candidate for the nomination of the Republicans?

France Inter listeners undoubtedly asked themselves the question on November 15 after an apparent disagreement between the journalist and her guest, which arose after a statement by Léa Salamé: “One of your most striking proposals is therefore […] mandatory minimum sentences for those who attack the police, magistrates or mayors. Today, in the rule of law, you cannot do it because it violates the constitutional principle of the individualization of the sentence, which is therefore found in the Declaration of Human Rights. “

.@XavierBertrand : “I will not touch the Declaration of Human Rights, but I will modify the Constitution so that the individualization of sentences is between a maximum and a minimum.” #le79Inter pic.twitter.com/lRgjq3ADYN

– France Inter (@franceinter) November 22, 2021

When asked if, ” [lui], president ”, he was going to“ touch the Declaration of Human Rights ”, Xavier Bertrand formally defended himself from such an initiative:“ The principle of personalization of sentences, individualisation of sentences, provided for by the Declaration human rights, provided for by the Constitution, of course that it will be maintained. My country will remain a rule of law. But individualization will be between a maximum and a minimum. Today there is no minimum. “

This modification, the candidate intends to carry out by changing the Constitution … but this would imply, according to Léa Salamé, necessarily “breaking” Article 8 of the Declaration of Human Rights, “which, according to the Constitutional Council, enshrines the ‘individualization of sentences’. An assertion immediately denied by Xavier Bertrand, who claims to have “worked on this issue with jurists and constitutional experts” and then reaffirms having only to modify the Constitution to achieve its objective.

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For Xavier Bertrand’s campaign team, joined by 20 Minutes, “There is no question of touching the Declaration of Human Rights. “The idea is that the revision of article 66 of the Constitution is submitted to a referendum, because the latter expresses the voice of the people”, she qualifies.

Article 66 provides two principles: that “no one may be arbitrarily detained” and that “the judicial authority, guardian of individual liberty, ensures respect for this principle under the conditions provided for by law. “It therefore echoes Article 8 of the Declaration of Human Rights, according to which” the law should only establish penalties that are strictly and obviously necessary, and no one can be punished except by virtue of a law. established and promulgated prior to the offense, and legally enforced. “

According to Michel Verpeaux, professor emeritus of public law at the Panthéon-Sorbonne University interviewed by France Inter, Xavier Bertrand’s proposal would consist in making “a sort of derogation from article 8”, which does not give rise to “on the strict right plan ”to a“ major impossibility ”, but which“ would affect a symbolic, mythical text which is the Declaration of Human Rights ”.

A change applicable without modifying the Declaration of Human Rights

Jean-Paul Markus, professor of public law at the University of Paris-Saclay, also recognized, on the Highlighters site, the feasibility of Xavier Bertrand’s proposal… which differs from that of the “automatic penalties” to which he had previously refers to.

“Xavier Bertrand […] did not reiterate its proposal as it stood, limiting itself to advocating “mandatory minimum sentences”, which the judge would be required to pronounce in respect of certain crimes or misdemeanors and which could not be reduced subsequently. It is very different, insofar as the judge keeps a margin allowing him to individualize the sentence imposed ”, explains the specialist.

And Jean-Paul Markus added: “The minimum penalty is therefore not only possible but it already exists, the whole being, according to the Constitutional Council, that it is proportionate to the gravity of the crime or offense committed. “