The public prosecutor in Amiens recently decided to confiscate the mobile phone of a teenager who had committed cyberbullying, as the offence was committed via this medium. In this case, hateful and homophobic comments had been posted online. We wanted to take stock of the implications of this confiscation. This measure is radical but seems legitimate. The question is who should take the measure in order to learn lessons for the long term and raise awareness of the phenomenon of cyberbullying.
Update on seizure and confiscation in criminal matters
The prosecutor resorted to a measure that can be imposed in criminal cases as an additional penalty (pursuant to Article 131-2 of the Criminal Code). This measure was facilitated by the Act No. 2010-768 of 9 July 2010 and may concern any property, whether tangible or intangible. The legislative framework tends to make it easier for the judicial authorities to seize property even before a conviction has been handed down.
The seizure measure then changes in nature, becoming a pre-criminal sanction. Under the supervision of the public prosecutor's office, judicial police officers may therefore seize the assets of an individual under investigation, with a view to their subsequent confiscation by the court that will judge the perpetrator of the offence. In the case of a preliminary investigation, it will be the liberty and custody judge who authorises investigators to seize the assets of the person suspected of having committed an offence, provided that the penalty of confiscation is applicable to the acts being prosecuted.
This is an alternative to legal proceedings that applies equally to adults and minors. It can only be used if the perpetrator has admitted to the offence. In the case of minors, the parents must have given their consent to the confiscation of the object.
What about the necessary educational aspect?
The Act of 3 August 2018 has banned the use of mobile phones in schools and colleges. This was followed by the rewriting of Article L511-5 of the Education Code. In response to this framework, some private institutions have issued specific internal regulations and authorise the confiscation of the device in cases of cyberbullying, «by management, teaching or supervisory staff».
Justine Atlan, Managing Director of our Association, would favour confiscation in this way, especially since parents are not necessarily aware of their children's actions and feel completely illegitimate when it comes to their digital usage. She considers that «it is preferable for schools to make this type of decision and then summon the parents. Returning the device can be an opportunity to educate them.».
It is important to bear in mind that parents and schools have a real role to play. Confiscation is an effective punishment for young people who are very attached to this object, provided that it is accompanied by educational measures to encourage responsibility and prevent reoffending. In the recent case, the reparative measure accompanying the punishment also has this educational value.
