Refusal by a person in custody to disclose the telephone code to a police officer does not constitute an offence under article 434-15-2 of the French Criminal Code

Article 434-15-2 of the French Criminal Code provides that refusal to transmit the secret convention for deciphering a means of cryptology is sentenced to three years’ imprisonment and a fine of 270,000 euros.

This article requires two cumulative conditions for its implementation, namely that the decryption agreement is likely to have been used to prepare, facilitate or commit a crime or offence and that the requisition must come from the judicial authority. In this respect, the French Constitutional Council had ruled on the refusal to assimilate a judicial police officer (OPJ) to the judicial authority, the latter being composed solely of public prosecutors and judges (Cons. Const. 11 August 1993, No. 93-326 DC, §5).

Consequently, a refusal to disclose information by a person in police custody cannot be punished under Article 434-15-2 of the French Criminal Code if the request is made by a police officer.

Moreover, the Paris Court of Appeal has very recently ruled that “a code for unlocking a commonly used mobile phone, while it allows access to the data on the mobile phone and therefore to any messages contained therein, does not enable encrypted data or messages to be decrypted and, in that sense, does not constitute a secret convention of a means of encryption”.

Thus, the refusal to hand over to police officers the code for unlocking a telephone does not constitute the offence provided for in article 434-15-2 of the French Criminal Code.

CA Paris, 16 April 2019, n°18/09267