JORF n ° 270, November 21, 2007 page 19004 text no.3 referral of the Constitutional Council dated October 25, 2007 application by at least sixty members, in accordance with article 61, paragraph 2, of the Constitution, and referred to in decision No. 2007-557 DC NOR: CSCL0711001X ELI: Non available law RELATIVE to the control of IMMIGRATION, to the INTEGRATION and to the asylum Mr President , ladies and gentlemen Members of the Constitutional Council, we have the honour to refer you, in accordance with the second paragraph of article 61 of the Constitution, the whole of the law on the control of immigration, integration and asylum adopted by the Parliament.
In support of this submission, we develop, in particular, the objections and following means against the article 13 to introducing DNA test in law of aliens and article 63 allowing ethnic statistics.
* The intrusion of genetics in the aliens police must fail. With regard to the protection of the constitutional principles enjoyed by foreigners, the intrusion of genetics in the status of migrants, men, women and children, must fail. And should convince beyond these principles, we should say that these three letters, DNA, will solve any of the questions put to the legislature but will create, on the other hand, discrimination according to the nature of families, biological or adoptive, recomposed or broken.
This is the meaning of the opinion of the Advisory national Committee of ethics.
At this moment, it seems useful to recall that, in accordance with your jurisprudence, no principle nor any rule of constitutional value provides to foreign rights of a general nature and absolute access and stay in the national territory, it even acquired that Parliament must respect the fundamental rights and freedoms of constitutional value recognized to all who reside in the territory of the Republic (decision No. 93-325 DC of 13 August 1993). Among them are the right to lead a private life, normal family, the right to family reunification, but also the right to respect for the human dignity, though obviously the principle of equality before the law. It is essential, in this regard, that a reasonable proportion is respected between the goal and the measure adopted, especially when the rights and fundamental freedoms. Finally, it is essential that the law is sufficiently clear and accessible and that Parliament should go at the end of its jurisdiction to avoid arbitrariness that arises from vague situations.
Force is to admit that these principles are not respected by section 13 of the Act which referred you today.
Relation to a certain idea of law and the effectiveness of the Act, it remains hardly credible that between 2003 and 2007 the status of the rights of the foreigners was modified by two laws in 2003 and almost once per year then, either by a special law, sparse arrangements. This legal uncertainty leads to "dicked" fundamental rights. Each step is separately presented as minor. Added to each other, they eventually weaken the principles at the risk of emptying them of their substance.
To the extent that the European Court of human rights, and recently on June 26, 2007, was conducted to condemn our country for rendering ineffective the exercise of certain fundamental rights following a legislative amendment concerning the right of aliens.
In particular, it is striking to note that various additional limits family reunification by these multiple texts have to undermine especially foreigners expressed their desire for integration by the duration of their anchorages in France or by their contribution to the diversity and the wealth of our country.
However, currently criticized Act seriously disregards the balances that you are responsible for enforcing.
The idea of using genetic testing to pack the family thus constitutes another step to make the exercise of the right to family reunification more difficult still. The risk is then make it ineffective in practice even as he remains admitted in appearance.
Everyone knows, at this time, as such an approach led, ultimately, to the still precarious foreigners the more integrated, and to place immigration policy under the pressure of the election passions. Events have sufficiently shown that legal insecurity resulting from a legislative harassment and administrative standing could especially threaten integration of foreigners in France, to the point that one happens to stop in the middle of their comrades or on the street children.
Everyone knows that the precariousness of the parents or the obstacles placed in the path of a normal family life by administrative arbitrariness will eventually create zones of lawlessness. If the fight against crime networks that exploit human misery is hardly wins, fundamental rights, them, a little more shrink coldness distilled by the "laws of offices.
With regard to article 63 allowing ethnic statistics from a parliamentary amendment should be wondering about his link with text on immigration, then that, moreover, the legislature did not provide all the guarantees necessary for the protection of the fundamental rights at issue, those enshrined in article 1 of the Constitution.
This is why it is so important that you invoke the fundamental rights and freedoms, far from electoral operations, keeping all simply faithful to your protective jurisprudence of Republican principles.
Your decision is therefore, in this regard, particularly expected.
Article 13 shall be liable to censorship for the following reasons: i. - in the first place, article 13 is vitiated by a breach of the right to family reunification and the right to private and family life.
II. - Secondly, it is in crowds-a violation of the principle of equality before the law between the biological families and other.
III. Thirdly, the criticized measure is manifestly disproportionate having regard to the principle of human dignity.
IV. - Finally, vote operative flagrantly disregards the principle of clarity and the constitutional objective of accessibility and intelligibility of the Act, and, ultimately, violate article 34 of the Constitution for negative incompetence vice.
I. - in the first place, this section of the criticized Act infringes the right to family reunification and set the right to a private and family life normal. Obviously disproportionately, it comes to make more difficult the possibility for regular foreigners to live with those they love. Parliamentary debates have abundantly shown that it is mainly the suspicion that irrigates these provisions, and, out of any objective and rational criterion.
I-1. Fortunately, you show always attentive to ensure the effectiveness of the right to lead a normal family life, on the basis of the tenth paragraph of the preamble to the Constitution of 27 October 1946, pursuant to which "the Nation ensures to the individual and the family the conditions necessary for their development", and you deliver an assessment of the consequences that such provision might have in this respect (decision No. 97-389 DC of 22 April 1997).
Fundamental right which is also proclaimed in article 8 of the European Convention for the protection of human rights and guaranteed by the European Court of human rights.
The right to the protection of privacy has also been spent by your jurisprudence. You have, inter alia, recalled with force "that under the terms of article 2 of the Declaration of the rights of man and of the citizen: the aim of all political association is the conservation of the natural and imprescriptible human rights. '' These rights are liberty, property, security and resistance to oppression. that freedom proclaimed by this article implies respect for private life"(decision No. 99-416 July 23, 1999, recital 45 DC).
The right to family reunification and the right to a private and family life normal freedoms protected regardless of the biological nature or not are concerned family. Except to establish the biological criterion as the family's sole and exclusive criterion, it is contrary to these fundamental principles to distinguish from DNA family that is not acceptable.
At that moment, no one should ignore that admit foreigners returned to enter a design unique family that would run counter to the evolution of our civil law and the constants for personal freedom conquests and notably that of indifference to privacy choices in our law.
I-2. This distinction between the biological family and the other first struck directive 2003/86/EC of the Council of 22 September 2003 on the right to family reunification as it aims in its article 4 beneficiaries of this right as children adopted by the applicant for reunification or his spouse.
It is said that at the level of the European Union the biological family is not eligible only on the right to family reunification.
I-3. In the present case, article 13 opposed implicitly but necessarily to family reunification of children adopted.
It is clear that adopted children seeking a visa on the basis of family reunification can never demonstrate a biological relationship with the mother of the family who hosted them at this institution's title!
Therefore, it is certain that the right to family reunification and the right to a private and family life normal will be rendered ineffective because of an insurmountable obstacle on the road to the visa applicant who has no biological connection with her adoptive mother.
I-4. Beyond the legal arrangements for adoption - which does not exist in all countries-, it should be noted on the basis of article 8 of the European Convention for the protection of the rights of man and fundamental freedoms, the Council of State annulled the refusal of visa in respect of family reunification opposed to a child raised by a Muslim family according to the institution of kafalah. That is an existing institution in Muslim countries where adoption is prohibited. The administrative judge found that this administrative decision "bore a disproportionate impairment to the purposes for which the refusal decision had been taken and infringed the provisions of article 8' (Council of State, March 24, 2004, no. 249369; 17 December 2004, no. 242192; January 16, 2006, no. 274934).
Families who welcome these children and who consider their already face daily problems. With critical article, it is clear that the way of family reunification will be closed to these families since, by construction, they will never be able to prove through DNA testing of biological filiation with the mother.
I-5. The critical device infringes, in addition, the provisions of article 10, paragraph 1, of the International Convention of the rights of the child ratified by the France: "in accordance with the obligation of States parties under paragraph 1 of article 9, any request made by a child or his parents to enter a State party or leave for the purpose of family reunification is considered by States parties in a positive spirit." humane and expeditious manner. States parties shall further ensure that the submission of such a request does not adverse consequences for the applicants and the members of their families. "If the authors of the appeal do not ignore your constant jurisprudence since 1975, they consider that this international treaty falls within the category of international commitments of the France-oriented humanitarian and bearing on the fundamental rights and freedoms. In other words, they consider that an agreement of this nature, involving the responsibility of States parties of the positive obligations could not be object subject to reciprocal application by the other States parties to the Treaty. It would not give the treaties a value equal to or greater than the Constitution, but to apply article 55 of the Constitution as an international convention which reciprocity cannot be a condition for the application in France and to make effective the rule that it has a value greater than the law.
This control is all the more desirable when such a Treaty reinforces the guarantee of the rights and freedoms guaranteed by the French Constitution. What is the case of the Convention on the rights of the child.
In this case, it is unlikely that submit children seeking to benefit from family reunification to tests of DNA or, on the contrary, make them impossible this grouping on the grounds that they have no biological connection is not compatible with article 10, paragraph 1, of the New York Convention.
I-6. In making family reunification a genetic fingerprint test for line of maternal filiation, article 13 tends to make ineffective the right to family reunion for any request made by a child without genetic link with the mother.
Furthermore, implicitly but necessarily, that provision leads to favouring the biological nuclear family at the expense of other forms of blended and adoptive families.
Beyond the right to family reunification itself, it is an infringement of the right to protection of privacy that results from this mechanism.
This is a break of equality before the law that results.
II. - Secondly, indeed, such mechanism that vote by the Senate violates the principle of equality between the families at the expense of non-biological families, reconstituted families and unmarried fathers.
There is hardly need to remind you that you guarantee the respect of the principle of equality, including for foreigners (decision No. 89-269 DC January 22, 1990), and that you ensure regularly censoring, for example, the provisions making the right to welcome a stranger at home at a certain level of resources (decision No. 2003-484 DC of 20 November 2003).
In this case, it is to say that article 13 introduced unjustified discrimination between foreigners in the same situation with regard to fundamental rights which they seek the benefit. There is no objective or rational criterion does justify this difference in treatment.
And if, as stated by the Minister of immigration and national identity, this provision constitutes a new right, immediately ask the question of why only the biological mother benefits from.
Indeed, the DNA test is only applicable in the context of biological maternal filiation. It follows that only mothers will be in the position of their biological link to the visa applicant.
On the other hand, as has already been amply shown, the father can never administer this evidence. It is not uncommon that a father finds himself alone with her children: mother could abandon the family home, divorce, even by mutual consent, could be pronounced without that links have been maintained, mother, unfortunately, may be dead. There will be also, for the record, that article 16-11 of the civil code prohibits the research by way of DNA on a deceased person.
Certainly, the authors of the referral will be aware that the Senate has amended the original text of the amendment pulling the father of this device, on the grounds of the risks that would run for the presumption of paternity and the balance of the families. This laudable intention to prevent a first leads however to a second also insurmountable obstacle. And the first constitutional avoidance does not justify to produce a second.
Similarly, and in any case, the adoptive family may not overcome the procedural obstacle thus established.
If a new change of perspective, the Government came to present his defence by claiming that, in the cases described above, the regime prove ultimately more favourable since not subjecting the applicant to the DNA test, should be, always on the grounds of the principle of equality, to investigate the causes of the choice of a less favourable treatment at the expense of the mother... If the Government were to support that the father will still be able to benefit from the possession of State, it is unclear why the mother could not benefit from it also.
It is always in vain that the Government seek to justify such discrimination by the object of the Act. Because it is not very well why does favour the mother, or conversely the disadvantaged, would be more effective from the point of view of control of migration or integration.
Ultimately, by some end require this provision, force is that it is severely discriminatory.
At the basis of these principles you invaliderez article 13.
III. - Thirdly, it turns out that the use of tests of DNA fingerprinting in the context of the aliens police is manifestly disproportionate having regard to the principle of human dignity.
You have dedicated this principle during the consideration of the so-called laws "bioethical" in 1994. Seized by the president of the National Assembly from the time of the full text by letter without particular motivation, you had considered that "such laws set out a set of principles which include the primacy of the human person, respect for the human being from the beginning of its life, the inviolability, the integrity and the absence of heritage character of the human body as well as the integrity of the human species; that thus affirmed principles tend to ensure compliance with the constitutional principle of protection of the dignity of the human person.
And: "all the provisions of these laws are implemented, by reconciling and without disregarding the scope, standards to constitutional value" (decision No. 94 - 343/344 DC of 27 July 1994).
Among the provisions that you had then examined the constitutionality to the title of the overall appeal of the president of the National Assembly was including articles listed under numbers 16-10 to 16-13 of the civil code.
Article 16-10 is fundamental here since it has that: 'the examination of the genetic characteristics of a person may be undertaken only for health purposes or scientific research.' Certainly, derogatory opportunities exist and are, in particular, defined by article L. 16 - 11 of the civil code. However, these are strictly limited.
- either in civil proceedings to the establishment or the challenge of a link of parentage, or obtaining, or the removal of subsidies still, as part of a measure of inquiry imposed by a judge.
- either as part of a judicial investigation to the Suppression of a tortious or criminal offence.
It is also true, in that regard, that you have accepted the use of DNA testing in criminal investigations (decision n ° 2003-467 DC of 13 March 2003, recitals 52 to 57).
Thus, it crowds out of this very limited framework that the use of genetic fingerprinting tests meet requirements taking: either the recognition of human rights (art. 16-11, Al 2), to the Suppression of serious offences already committed.
However, in this case, the disputed device will in a very different sense: the use of DNA testing is, on the one hand, intended for purposes of administrative police and, on the other hand, tends to deprive its effects the exercise of constitutionally guaranteed rights.
It is clear that critical section goes beyond the limits within which the Act remained until then in order to respect the constitutional framework that you solemnly asked.
The disparity is even more apparent that the identification by DNA test will limit the exercise of constitutionally guaranteed fundamental rights: the right to family reunification and the right to the protection of privacy. That is, for example, the exact opposite of the second paragraph of article 16-11 of the civil code which makes this test a way to be reinstated in his rights!
It is important to remember that you do not hesitate to censor a statutory provision which infringes a constitutional principle so that one can achieve the same purpose by other routes for manifest error of assessment. You have done in this particularly sensitive area that is the fight against terrorism (decision No. 96-377 DC of 16 July 1996).
The restriction to the exercise of a fundamental right - which restriction applies only to certain aliens outside any objective and rational criterion - via the use of tests DNA is an extension of the identification by genetic methods manifestly disproportionate in relation to the principle of human dignity.
This leader, still, censorship will be incurred.
IV. - In any case, last place, article 13 disregards the principle of clarity of the law, the constitutional objective of accessibility and intelligibility of the law and, ultimately, reveals a violation of article 34 of the Constitution for vice of negative incompetence.
You regularly reminded that these constitutional principles and objectives are based on articles 4, 5, 6 and 16 of the Declaration of 1789 and 34 of the Constitution. You feel free to censor legislation on this basis (No. 2000-435 on 7 December 2000 DC, no. 2003-475 DC's July 24, 2003). Same goes when Parliament does not sufficiently specify the provisions voted and especially when are involved fundamental rights (No. 99-423 DC of 13 January 2000, no. 2000-433 DC of 27 July 2000).
As the Spanish Constitutional Court held: "any lack of precision of the Act on the limits of the right fundamental [in question] gives rise to an indeterminacy.» And in such a case, failing to be able to be reasonably interpreted, the law is fulfilling more its function guarantee of fundamental law that restricts where inhibits purely and simply the will of him who is required to apply, thus achieving not only the effectiveness of the fundamental right, but also of legal certainty"(Spanish Constitutional Court plenary, November 30, 2000).
In this case, article 13 as amended by the Senate is a suite of inaccuracies and, for the enlightened words of the honourable Member to the origin of this provision, is finally a "gas factory". Certainly, additions to the House were presented as seeking to surround themselves with sufficient guarantees an unconstitutional mechanism itself. However, not only the Senate has failed to purge the original vice, but, moreover, it added the lack of clarity and intelligibility, placing in many areas of shade conditions for the application of this procedure.
It will only submit a list of these issues left pending by the legislature then what is involved the exercise of fundamental rights: (i) as has already been seen, only the mother can "enjoy" the DNA test to establish a right to family reunification. What then is the rule applicable to the father, the adoptive family, or reconstituted families? The law remained silent on these points and therefore the administrative risk and chance of the teller who will determine the conditions of application of a fundamental right. This fundamental right will be subject to procedures that no person shall, at that moment, know.
(ii) compendium of the consent conditions are left in limbo while articles 16-10 et seq. of the civil code show that this, in the view of the subject matter, falls within the legislature. Moreover, it should be noted that in the absence of consent of the mother Parliament has remained silent on the consequences resulting therefrom for the implementation of the fundamental right in question. This is even more embarrassing from the point of view of the principles that article 16-10 of the civil code expressly provides that consent to the genetic identification test is freely revocable. Go the same here, and if so, what will be the consequence from the point of view of the family reunification procedure?
(iii) the intervention of the judicial judge as a guarantee is an enigma. How can the High Court of Nantes to implement its investigative powers with regard, for example, issues relating to civil States placed under the administration of other sovereign States? How the adversarial principle be enforced when the visa applicant will be removed by thousands of kilometres of the judicial Chamber and cannot come to be heard since with no visa to enter the national territory. Beyond that, it should be noted that article 13 is silent on the remedies available against the decision of the High Court to proceed with a possible genetic fingerprint test. In addition, it is appropriate, as are judicial proceedings during which the rights of the defence must be able to exercise, to determine who will take support inherent in complex civil proceedings attorneys ' fees. You have already censored a provision restricting the rights of aliens whose implementation conditions revealed a breakdown of equality before public burdens (decision of 20 November 1993). To avoid the unconstitutionality of the implementation dependant of the applicant for costs incurred by the DNA tests, it was transferred to the State. However, in making bear by the applicant to the visa and his family charges related to this procedure, the same unconstitutional remains and censorship should therefore be imposed.
(iv) the identification by fingerprinting conditions are left to the regulatory power. However, certain conditions are undoubtedly the law. Thus article 16-12 of the civil code provides that, in judicial proceedings, persons authorized to proceed shall be entered on a list of forensic experts. It must be seen a guarantee of human rights. In addition, the lack of precision in this regard in the referral text, one must ask how such a guarantee may be implemented when the levy will take place in thousands of kilometres of national territory. Unless we should imagine that consular officers stationed abroad will soon extend the list of judicial experts courts. It would be certainly original and funny in a period of revision of the judicial map.
(v) no criterion is specified in the Act to regulate the conditions in which the list of countries whose civil status has deficiencies such as one must resort to genetics for them will be established. It is in vain that the Government revendiquerait your decision of 2003 on the right to asylum validating the category of list of "safe countries" (decision No. 2003-485 DC of 4 December 2003). In this case, this concept was framed by predetermined and precise legislative criteria, and also by international instruments. This list was, in addition, prepared by an independent body. In this case, force is to admit that no such thing exists. In addition, he must wonder about the competence of the legislator and, a fortiori, of the regulatory power in the absence of guidance, to assess the conditions for organization of the civil register in other sovereign States.
(vi) Finally, it is noted that Parliament has remained silent on the conditions of transmission and conservation of sensitive data collected. It is only specified in article 13 that: "the tribunal's decision and, where appropriate, identification tests authorized by the findings are communicated to the diplomatic or consular agents." Nothing is therefore said about communication of these results to the applicant the visa or the conditions of conservation of these sensitive data. Because each DNA fingerprint is, obviously, a personal data which must be the subject of the greatest precautions. Now and then that no reference is made to the Act of 1978 as amended, the constitutional protection of the right to privacy is guaranteed in any way by article 13 critical. The legislature even took no care to refer to the regulatory powers the definition of such guarantees. It is to say that the legislature remained below its own jurisdiction on a matter related to public freedoms.
(vii) add that the period needed for the adoption of the decree in Council of State, preceded by the time necessary to obtain the opinion of the Committee of ethics, followed by the procedure for the clearance of persons in charge of these tests will not allow implementation of this provision before the start of the year 2009. However, this experiment must end for December 31, 2009 at the latest after an assessment has taken place prior. It is said that the legislature has just invented the inapplicable law to be not applied.
Under these conditions, only the censorship will prevent that ridicule is in addition to infamy.
As one must, in this respect, wonder on the Faculty of the legislature to provide an experiment where is involved a fundamental right as in this case. It should be noted as well as article 72, paragraph 4, of the Constitution has limited the exercise of the right to experiment for local authorities in terms that may be applicable to the present case: ' under the conditions laid down by an organic law, and except when are involved the essential conditions of exercise of public freedom or a constitutionally guaranteed right. , local authorities or their groupings may, where applicable, the law or regulation it has planned, derogate, on an experimental basis and for an object and a period limited to the legislative or regulatory provisions governing the exercise of their powers. "It appears consistent with regard to the constitutional principles thus expressed to conceive that Parliament is also a limit to its power of experimentation when a public freedom or a right constitutionally guaranteed is involved. Certainly, the authors of the referral will be aware that in a decision of 28 July 1993 (DC 93-322) you admitted the Faculty for the legislator to derogate from a general framework by experiments. But immediately, it should be noted that it was the legal regime of public education and research and of freedoms or human rights. Still need to emphasize that you had then framed this faculty.
On the other hand, admit legislative when experimentation are concerned the rights and fundamental freedoms would be to ignore the requirements of article 34 of the Constitution and articles 6 and 16 of the Declaration of 1789.
* Thus, article 13 is missing in more than one way to constitutional requirements whose fundamental rights must benefit. Leaving in indeterminacy or blur in implementing these freedoms recognized to foreigners, or choosing the path of experimentation, the legislature has not been at the end of its own jurisdiction and has disregarded the principle of clarity and the constitutional objectives of accessibility and intelligibility of the Act.
All these leaders, censorship is certain and it is the whole of article 13, which must be invalidated.
Section 63 is liable to censorship on the grounds of infringement of articles 39, paragraph 1, and 44 of the Constitution and the vice serious negative incompetence.
V. - You think classically "that a provision may be lodged by way of amendment when it is devoid of any connection with the subject of the text laid on the table of the first before Assembly" (decision No. 2006-535 DC on March 30, 2006).
However, in this case, it is singularly difficult to establish a link between the provisions amending Act No. 78-17 of 6 January 1978 on data processing, files and freedoms, and the subject of this Act for the control of immigration, integration and asylum.
Indeed, it appears that this provision concerns not only foreigners, but also french citizens. However, proof to the contrary, it appears certain that foreign law is not intended to apply to french citizens.
No one can ignore this provision, moreover widely debated in the country, key to the founding of our social pact provisions and first article 1 of our Constitution that has that: "La France is an indivisible, secular, democratic and Social Republic. It shall ensure the equality of all citizens before the law without distinction of origin, race or religion. It respects all beliefs. "Then that are involved with the principles of this importance, it is obviously contrary to your authorities on the legislative procedure to amend our law in the course of an amendment to a text whose purpose is not the fight against discrimination against french citizens.
Obviously the authors of the referral remain engaged without falter in the fight against discrimination, but still need that this be coherent and comprehensive provisions, not a registered disposition to the sly, and moreover incomplete.
VI. - Because, in any case, and if you were to consider that this article through an isolated parliamentary amendment is not devoid of any connection with the criticized Act, censorship should be the Chief negative incompetence.
Indeed, this provision affects fundamental rights and individual and public important freedoms. Also, should have been the legislator surrounds guarantees maximum conditions of realization and use of ethnic statistics.
However, article 63 specifies nothing on the destination of such treatment and the conditions of their realization.
These grievances can only lead to the censorship of this provision.