A lawyer from Bourges obtains the unconstitutionality of article 60 of the customs code, which authorizes the control of goods, means of transport and people

The Constitutional Council declared, this Thursday, September 22, unconstitutional article 60 of the customs code, which authorizes the control of goods, means of transport and people. The Elders had been seized on June 24 by the Court of Cassation of a priority question of constitutionality (QPC) posed by Me Eugène Bangoura, Berruyer lawyer, for his client suspected of money laundering.

The case, namely the transport of 47,000 euros in cash in the trim of the door of a vehicle checked by customs on February 10, 2020 at the A20 Vierzon Nord tollbooth, scheduled for the hearing of the criminal court of March 18, had not been judged on the merits because of Me Bangoura’s QPC request. The hearing on the merits had been postponed to January 2023. After deliberating on it, the Bourges correctional court had decided, on April 1, to send Me Bangoura’s QPC to the criminal chamber of the Court of Cassation, which itself even, in June 2022, transmitted the QPC to the Constitutional Council.

Freedom to come and go

In his argument, aimed at demonstrating that Article 60 of the Customs Code is “no longer suited to the legal order”, Me Bangoura had notably highlighted the fact that customs controls are put in place without regard to the judicial authority and even without its authorization and that the space of time during which a person is immobilized during an inspection, sometimes for several hours, and his vehicle searched, is not subject to any legal framework. For Me Bangoura, this time of control undermines the freedom to come and go, moreover without time limit provided for by law.

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In its decision, the Constitutional Council indicates that Article 60 of the Customs Code “authorizes customs officers to inspect goods, means of transport and persons” and that “the fight against customs fraud […] justifies” these operations. Nevertheless, the Constitutional Council considers that “by not specifying sufficiently the framework applicable to the conduct of these operations […] the legislator has not ensured a balanced reconciliation between, on the one hand, the search for the perpetrators of offenses and, on the other hand, the freedom to come and go and the right to respect for private life”.

One year to comply

Therefore, the Elders declared Article 60 of the Customs Code unconstitutional. Believing that “the immediate repeal of the provisions declared unconstitutional would entail manifestly excessive consequences”, its repeal was postponed until September 1, 2023. “The measures taken before the publication of the decision cannot be challenged on the basis of this unconstitutionality”, specifies the constitutional council which gives one year to the legislator to put itself in conformity with the constitutional principles.

“I am happy because this decision makes it possible to bring back into compliance with the principles a text which was the cornerstone of the customs code”, reacts Me Bangoura.

Marion Lapeyre


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