When referred a priority preliminary ruling on constitutionality concerning the compliance with the Constitution of the first paragraph of Article L. 621-12 of the French Monetary and Financial Code, insofar as it provides, during an inspection conducted by officers of the French Financial Markets Authority (Autorité des marchés financiers – AMF), for the possibility of “obtaining (…) explanations from persons approached on site”, the Constitutional Council ruled that there is no obligation to notify such persons of their right to remain silent at this stage of the investigation.
- Cons. const., 21 March 2025, No. 2025-1128 QPC
How can the objective of ensuring the effectiveness and speed of evidence-gathering be reconciled with the protection of the fundamental rights of all persons who may be subject to investigative measures? This question, which arises throughout the field of punitive proceedings, was once again brought sharply before the Constitutional Council in relation to investigative measures implemented by the French Financial Markets Authority (AMF).
The decision under review answers a priority preliminary ruling on constitutionality brought by the Association des avocats pénalistes (ADAP), in proceedings seeking the annulment of the Prime Minister’s implicit rejection of a request to repeal Articles R. 621-34, R. 621-35 and R. 621-36 of the Monetary and Financial Code. These provisions concern the implementation of the powers conferred on AMF investigators and inspectors, particularly with regard to interviews and the obtaining of explanations from persons present during inspection and seizure operations.
The question concerned the words “and to obtain, under the conditions and in accordance with the procedures referred to in Articles L. 621-10 and L. 621-11, explanations from persons approached on site”, appearing in the first paragraph of Article L. 621-12 of the Monetary and Financial Code, on which the aforementioned regulatory provisions are based. The ADAP argued that, by failing to require persons from whom AMF investigators seek explanations during an inspection of premises authorised by the liberty and custody judge to be notified of their right to remain silent, these provisions infringed the rights guaranteed by Article 9 of the Declaration of the Rights of Man and of the Citizen of 26 August 1789, insofar as that provision guarantees the right not to incriminate oneself in punitive proceedings and, consequently, the right to remain silent.
On the same grounds, the ADAP further argued that the legislature had failed to exercise the full extent of its powers “in circumstances affecting the aforementioned constitutional requirements” (decision under review, § 3).
The Constitutional Council nevertheless declared the challenged provisions compliant with the Constitution, identifying the stage of the proceedings concerned and the prior judicial review of the measure by the liberty and custody judge as factors ensuring that the rights of the persons concerned are respected.
The decision sheds light on the Constitutional Council’s assessment of the point at which an individual may be regarded as being effectively accused in punitive proceedings, from which point that person must fully benefit from the protective rights attached to such status.
After reviewing recent developments in the constitutional scope of the right to remain silent and the obligation to notify individuals of that right, the principal contributions of the decision under review will be highlighted.
Recent developments in the constitutional scope of the right to remain silent and the obligation to notify individuals of that right
It was initially in its decision of 2 March 2004 that the Constitutional Council, on the basis of Article 9 of the aforementioned Declaration of the Rights of Man and of the Citizen, first recognised as a constitutional principle that “no one is required to incriminate themselves”. Approximately a decade later, after considering the issue from the perspective of the “notification” of that right (Cons. const., 30 July 2010, No. 2010-14/22 QPC), it inferred from that principle a “right to remain silent” forming part of the rights of the defence, from which a person accused while in police custody must benefit (Cons. const., 4 Nov. 2016, No. 2016-594 QPC).
Several decisions of the Constitutional Council have subsequently defined the scope of this right in criminal matters. It has thus held that the right to remain silent must be notified to a person facing proceedings when heard by an investigating judge, a liberty and custody judge or the investigating chamber during a judicial investigation; by a liberty and custody judge pending trial; and also to a suspect when interviewed during a police investigation.
However, the requirement to notify the right to remain silent applies only where the person is “effectively” accused (see the Constitutional Council’s commentary on the decision, p. 13). Accordingly, more recently, when reviewing provisions concerning environmental summary proceedings, the Council observed that the person targeted by such a measure was not necessarily facing criminal accusations in respect of the facts concerned and therefore held that the hearing did not constitute the questioning of an accused person, irrespective of whether that person might subsequently become accused in criminal proceedings concerning the same facts (Cons. const., 15 Nov. 2024, No. 2024-1111 QPC).
The official commentary on that decision highlighted the establishment of a “dividing line, in the Council’s case law, between situations requiring notification of the right to remain silent and those in which such notification is not required”, excluding the possibility that such information may be demanded by any person who might subsequently be accused following a hearing before a judge or authority that was not tasked with questioning that person about facts actually alleged against them.
The Constitutional Council’s protection of the right to remain silent is not, however, confined to criminal matters. Since its decision of 8 December 2023 (Cons. const., 8 Dec. 2023, No. 2023-1074 QPC), it has been established that the requirements relating to the right to remain silent “apply not only to penalties imposed by criminal courts but also to any sanction having the nature of a punishment”. Accordingly, a professional questioned in disciplinary proceedings about alleged misconduct cannot be heard without first being notified of the right to remain silent.
As regards punitive administrative proceedings more specifically, in a decision of 28 January 2022 (Cons. const., 28 Jan. 2022, No. 2021-965 QPC), the Council had merely stated that financial penalties imposed by the AMF were punitive in nature, thereby implicitly opening the way for the application of the corresponding procedural safeguards.
The official commentary on the decision under review further states that, irrespective of the nature of the proceedings, the Council examines three factors when assessing compliance with Article 9 of the aforementioned Declaration of the Rights of Man and of the Citizen:
- the context in which the accused person is questioned: the Council considers the role of the authority conducting the interview and the powers exercised in order to question the person about the allegations made against them;
- the circumstances in which the interview takes place: the Council examines, in particular, whether the person interviewed may be led to believe that they do not have the right to remain silent;
- finally, the Council considers whether the statements made by the person interviewed are liable to be “brought, directly or ultimately (depending on the stage of the proceedings at which [that person] is heard), to the attention of the trial court or the authority vested with sanctioning powers” (Official commentary on the present decision, p. 11).
Against the backdrop of these developments, the Constitutional Council was asked in the present case to rule on the obligation to notify the right to remain silent to persons from whom explanations are obtained during an AMF inspection and seizure operation conducted pursuant to Article L. 621-12 of the Monetary and Financial Code.
The question was nevertheless liable to have consequences for numerous punitive administrative proceedings, as evidenced by the interventions and observations submitted in the proceedings by several French regulatory authorities.
Key aspects of the decision under review
In support of its decision and its finding that the challenged wording of the first paragraph of Article L. 621-12 of the Monetary and Financial Code complied with the Constitution, the Council stated, first, that “according to the settled case law of the Cour de cassation, the sole purpose of the right of inspection is to seek evidence of conduct contrary to the law for the purposes of the investigation conducted by officers of the French Financial Markets Authority” and, second, that “it follows from the very wording of Article L. 621-12 of the Monetary and Financial Code that, in order to ensure that the application for authorisation is well founded, the liberty and custody judge verifies that the information in the Authority’s possession is such as to justify the inspection” (§ 9).
The stage of the proceedings concerned and the prior review of the measure by the liberty and custody judge are therefore identified as the factors ensuring respect for the rights of persons from whom explanations are obtained during an inspection of premises.
In the present case, the Constitutional Council found that, at the procedural stage concerned, a person from whom explanations may be obtained cannot be regarded as “effectively accused”. It held that, since an inspection of premises is not conditional upon the “establishment of suspicions against the person from whom explanations might be obtained during that measure” (Official commentary on the decision under review, p. 18), the “challenged provisions neither have the purpose nor may have the effect of allowing investigators of the French Financial Markets Authority to obtain explanations from a person concerning facts in respect of which that person is accused” (decision under review, § 10).
This analysis nevertheless appears open to criticism in view of the duty to cooperate required by the AMF and imposed on persons subject to investigative measures, which constitutes an important aspect of the investigators’ coercive powers. The AMF has, for example, applied the offence of obstruction to third parties who were not themselves accused in the proceedings.
The decision also raises questions as to its consistency with the position adopted by the Court of Justice of the European Union, which has previously opposed the imposition of an obstruction penalty on persons who refused to answer questions during an inspection of premises, thereby appearing implicitly to recognise the existence of a “right to remain silent” from that stage of the proceedings (CJEU, Grand Chamber, 2 Feb. 2021, Case C-481/19, in particular para. 46).
These considerations were nevertheless not taken into account, even in the assessment of the “circumstances in which the explanations are obtained”, a criterion ordinarily examined by the Council in such matters.
The Constitutional Council also relies on the supervision exercised by the liberty and custody judge, stating that “it is in any event for the judge competent to review inspection operations (…) to ensure that explanations are obtained from the person approached on site under conditions that respect the fairness of the investigation” (§ 11). In practice, however, it appears unlikely that such review will always be sufficiently effective to exclude statements obtained in breach of the privilege against self-incrimination.
One of the arguments put forward by the AMF before the Constitutional Council was that the possibility of contacting a lawyer of one’s choice (Monetary and Financial Code, Art. L. 621-11) was sufficient to ensure that a person from whom explanations are obtained would not incriminate themselves. Such an argument nevertheless appears unconvincing, and it may be asked why, in those circumstances, it would not simply be more appropriate to inform the person questioned of their right to remain silent, particularly in the unusual context of an inspection of premises.
By Ghislain de Foucher and Chloé Méléard, Members of the Paris Bar