By two orders dated 8 November and 25 November 2011, the Chief Justices of the Orleans and Metz Courts of Appeal declared void the search and seizure authorisation warrants issued by two Judges of Liberty and Detention (JLD), as well as the subsequent operations, for lack of effective supervision of the merits of the administration's requests. A favourable echo given by courts to arguments that companies have put forward for a long time, proving that there may still be hope to see the practice of pre-drafted warrants better supervised.
Given that searches and seizures represent a serious attempt against the inviolability of the home, article L. 450-4 of the French commercial code subjects the merits of a search and seizure authorisation request to the supervision of the JLD. However, Supreme Court case law has established a presumption according to which the JLD is deemed to have exerted sufficient supervision even when the method of pre-drafted warrants prepared by the administration is used.
This was not the opinion of two courts of appeal which, notwithstanding the presumption established by the Supreme Court, annulled the authorisation warrants issued by two JLDs because it was obvious that the JLD could not, in practice, have exercised genuine supervision of the merits of the administration’s requests.
In the first case, the Chief Justice of the Orleans Court of Appeal considered, in light of the time available for the review and the material errors contained in the warrant, that the JLD had not read either the pre-drafted warrant or the attached documents, and had nevertheless signed the warrant. The Chief Justice of the Metz Court of Appeal admitted that the JLD could accept the administration’s arguments, subject however to the condition that the judge actually carries out a careful reading and scrutiny of the pre-drafted warrant and the documents attached to it. In the present case, however, this had clearly not been done, since the judge had not corrected several significant mistakes contained in the pre-drafted warrant.
These decisions are to be welcomed, not only because they apply a genuine supervision, but also because they question the pre-drafted warrants method, despite the constant positive view taken by the Supreme Court on the subject.
Indeed, the Chief Justice of the Orleans Court of Appeal openly condemned such practice, on the basis not only of article L. 450-4 of the French commercial code, but also articles 6, paragraph 1, and 8 of the European Convention on Human Rights, noting that “the practice of pre-drafted warrants which, under the guise of facilitating the judge’s task, is in fact an attempt to steer his decision [and] constitutes an interference of the administration in the powers of the judicial authority and is thus contrary to the right of individuals to have their case heard by an independent and fair tribunal”.
The Chief Justice of the Metz Court of Appeal did not openly criticise the practice of pre-drafted warrants, but considered that such practice required that the judge carries out “a careful reading of the warrant prepared by the administration, particularly as he has not written it”.
An appeal has already been lodged by the authorities before the Supreme Court against this second decision, it is to be feared that such audacity will stop at the doorstep of the Supreme Court. However, a thorough supervision of warrants pre-drafted by the administration is even more necessary considering that the Supreme Court case law provides an extensive interpretation of the administration's search and seizure powers to the administration, which has “carte blanche”, among others, to carry out massive and undifferentiated electronic seizures.
A glimmer of hope for companies whose fundamental liberties defence may therefore not be limited to bringing an ultimate action before the European Court of Human Rights.