The information went unnoticed on March 30th. But the decision of the Constitutional Council on Article 434-15-2 of the Penal Code is likely to make noise. This text punishes three years of imprisonment and a fine of € 270,000 for refusing to hand over to the judicial authorities “a secret agreement for the decipherment of a means of cryptology that may have been used to prepare, facilitate or commit a crime. or a crime “. In other words, it is not possible for a suspect in custody to remain silent on the code of his mobile phone! The council decided following a QPC (Priority issue of constitutionality) resulting from a common law procedure. The suspect was prosecuted for refusing to give the code of his phone while he was in custody for possession of narcotics. According to Le Monde, This decision, published in the Monday edition, states that the inconsistency of this law has the right to remain silent and not to incriminate itself. However, it is about “rights consecrated by the European Court of the humans right”, specifies Karim Morand-Lahouazi, the lawyer of the defendant, contacted by Le Parisien. “Despite what the Constitutional Council tells me, I remain convinced that it is an infringement of the right to remain silent,” he explains. “The decision is so undeveloped that I say to myself that they did not want to pronounce. The question was so interesting that I am very surprised at the answer, “continues Morand-Lahouazi. According to him, the case will now follow a classic procedure before the TGI first, then on appeal and cassation if necessary. An article born in the post-September 11th This article does not date yesterday. It appeared in the anti-terrorist law of November 2001 that followed the attacks of September 11th. The problem is that it is used today for any type of crime … The defendant’s lawyer also told Le Monde that this article concerns manufacturers of hardware and encryption software, not individuals whose “phone access code is not a means of cryptology.” This decision of the constitutional council raises questions, even worries. “The Council has made a very disappointing decision, we are worried about this choice that may durably weaken the right to encryption,” alarmed La Quadrature du Net, an association that intervened in this case, contacted by Le Parisien. “This decision is first and foremost a questioning of the right not to incriminate oneself – a fundamental principle of criminal law – which strongly offsets the precarious balance between the investigation and the lawful pursuit of the offenses of a criminal offense. side, the rights of the defense and respect for the presumption of innocence of the other “, also specifies the association for the defense of freedoms on its website. A French specificity The decision is surprising in light of the government’s position on this QPC. “The only interpretation that is likely to make article 434-15-2 of the Criminal Code constitutionally correct is that which excludes the application of this law to persons suspected of having committed a crime. offense. This interpretation is necessary […] to preserve the right of the suspected person not to incriminate himself, “declared Philippe Blanc, representing the Prime Minister in this case at the hearing on 6 March. Even the research center of the National Gendarmerie abounded in this sense! This decision can be understood as a hexagonal specificity. For La Quadrature du Net, “it is part of a French legal tradition that is particularly hostile to encryption, as illustrated, for example, by article 132-79 of the Penal Code, which makes the use of encryption an aggravating circumstance when is used to prepare or commit a crime. Despite these official positions, the Constitutional Council chaired by Laurent Fabius has preferred to declare this article of the Penal Code compliant, stating that it applies to everyone, including a suspected person, even if the object is not ” To obtain a confession from him ”. On the justice side, the decision can not be clearer, the prosecution can continue to prosecute all those who refuse to give their phone code in the name of the right to silence.