Key Benefits:
LOI RELATIVE À LA MAÎTRISE DE L'IMMIGRATION,
IN FRANCE AND NATIONALITY
The Constitutional Council was seized, under the conditions set out in article 61, second paragraph, of the Constitution, of the law relating to the control of immigration, to the residence of foreigners in France and nationality, on November 4, 2003, by Mr. Claude Estier, Ms. Michèle André, MM. Bernard Angels, Bertrand Auban, Robert Badinter, Jean-Pierre Bel, Jacques Bellanger, Ms. Maryse Bergé-Lavigne, Mr. Bernard Dussaut, Bernard Frimat, Charles Gautier, Jean-Pierre Godefroy, Jean-Noël Guérini, Claude Haut, Mme Odette Herviaux, MM Yves Krattinger, Serge Lagauche, Louis Le Pensec, André Lejeune, Claude Lise, Philippe Madrelle, Jacques Mahéas, Jean-Yves Mano, François Marc, Jean-Pierre Masseret, Marc Massion Claude Saunier, Michel Sergent, René-Pierre Signé, Jean-Pierre Sueur, Simon Sutour, Michel Teston, Jean-Marc Todeschini, Pierre-Yvon Trémel, André Vantomme, André Vézinhet, Marcel Vidal, Henri Weber, Mme Nicole Borvo, M. Robert Bret, Mmes Hélène Luc, Josiane Mathon, M. Jack Ralite and Mme Odette Terrade
and on the same day, by Jean-Marc Ayrault, Mmes Patricia Adam, Sylvie Andrieux-Bacquet, MM Jean-Marie Aubron, Jean-Paul Bacquet, Jean-Pierre Balligand, Gérard Bapt, Claude Bartolone, Jacques Bascou, Christian Bataille, Jean-Claude Beauchaud, Eric Besson, Jean-Louis Bianco, Serge Blisko, Patrick Blou Jean-Pierre, Jean-François
The Constitutional Council,
Considering the Constitution;
In light of amended Order No. 58-1067 of 7 November 1958 on the Organic Law on the Constitutional Council;
Seen the civil code;
Considering the criminal code;
Having regard to amended Ordinance No. 45-2658 of 2 November 1945 on the conditions of entry and residence of foreigners in France;
Having regard to Act No. 52-893 of 25 July 1952 amended on the right to asylum;
Having regard to Act No. 78-17 of 6 January 1978, as amended on computers, files and freedoms;
Having regard to Act No. 83-629 of 12 July 1983 as amended regulating private security activities;
In view of the Government ' s observations, recorded on 10 November 2003;
In view of the reply comments made by the senators who made the first referral, recorded on November 18, 2003;
In view of the reply comments made by the members of the second case, recorded on 18 November 2003;
In view of the Government ' s new observations, recorded on 18 November 2003;
The rapporteur was heard,
1. Considering that the authors of the two cases refer to the Constitutional Council the law on immigration control, residence of foreigners in France and nationality; that they contest, in particular, compliance with the Constitution of Articles 5, 7, 8, 19, 21, 22, 23, 24, 28, 31, 42, 49, 50, 53 and 76;
On Article 5:
2. Considering that Article 5 of the referred law amends the provisions of the last four paragraphs of Article 5 of the above-mentioned order of 2 November 1945; that it provides, in particular, that the decision to refuse the entry of a foreigner in the French territory "is notified to the interested party with reference to his right... to refuse to be repatriated before the expiry of the period of a frank day"; that he adds
3. Considering that the members of Parliament and requesting senators argue that, by providing that the foreigner may give up the benefit of the day before his repatriation, the legislator has ignored the principle of equality before the law; that he remained below his own jurisdiction "only retaining such an unclear drafting as to access to a fundamental procedural guarantee";
4. Considering, in the first place, that foreigners who are the subject of a decision of refusal of entry are duly informed, in a language they understand, of the possibility that they have to ask to benefit from a frank day before being repatriated; that, by placing each foreigner before the same choice, the criticized provision does not ignore the principle of equality;
5. Considering, secondly, that by stating that "the foreigner is invited to indicate on the notification if he wishes to benefit from the frank day", the legislator has not misunderstood the competence he holds of Article 34 of the Constitution;
On Article 7:
6. Considering that Article 7 of the referred law, which reinstates Article 5-3 of the order of 2 November 1945, establishes an administrative control of the reception certificates established by the persons proposing to ensure the housing of a foreigner declaring to stay in France as part of a family and private visit; that this article defines the commitment signed by the hosts, sets the terms of validation by the administration of the certificates of refusals
With regard to the commitment to take charge of the residence costs of the hosted foreigner and those of its possible repatriation:
7. Considering that, under Article 5-3 of the order of 2 November 1945, as it results from the fourth paragraph of Article 7 of the referred law, the reception certificate "is accompanied by the commitment of the host to take charge, for the duration of validity of the visa or for a period of three months from the entry of the alien to the territory of the States parties to the aforementioned convention,
8. Considering that it is made a grievance to this provision to be obliterated with negative incompetence and to infringe upon respect for privacy, the right to lead a normal family life and the principle of equality;
9. Considering that Article 13 of the Declaration of Human and Citizen Rights of 1789 states that: "For the maintenance of the public force, and for administrative expenses, a common contribution is essential: it must also be distributed among all citizens, because of their faculties";
10. Considering that, if this provision does not prohibit, for a reason of general interest, support certain categories of persons of special charges, it shall not result in a breakdown characterized by equality before public office;
11. Considering that the possible care by the host of the residence expenses of the person he receives in the context of a family and private visit, within the limits of the amount of the resources required of a foreigner for an entry into the territory in the absence of a reception certificate, does not ignore Article 13 of the Declaration of 1789; that it does not affect the right to respect for private and family life; that by retaining the criticized formulation, the legislator has not misunderstood the extent of its competence;
12. Considering, on the other hand, that by charging the shelterer with the costs of repatriating the foreigner received, without foreseeing a cap of these costs, without taking into account neither the good faith of the host nor the behaviour of the hebergé and without setting an appropriate limitation period, the legislator has broken in a manner characterized the equality of the citizens before the public charges;
13. Considering that, at the end of the fourth paragraph of Article 7 of the above-mentioned Act, the following words must be considered contrary to the Constitution: ", and the costs of his repatriation if the foreigner does not have, at the end of this period, means to leave French territory";
With respect to the terms and conditions for validation of reception certificates:
14. Considering that the provisions of new section 5-3 of the order, as a result of paragraphs 5 to 10 of section 7 of the referred Act, provide that the mayor may not refuse to validate the reception certificate only when the host does not present the necessary supporting documents, or that the normal conditions of accommodation are not complied with, or that the mentions made on the previous certificate are inexactly signed establish the terms and conditions under which normal housing conditions may be verified by members of the municipality or the International Migration Board; that they specify that the agents authorized to do so may only enter the premises after they have ascertained the consent of the host, given in writing;
15. Considering that the two referrals blame the legislator for having given discretion to the mayor, who would act as local elected, without sufficiently governing the exercise of that power;
16. Considering that under Article 34 of the Constitution: "The law sets the rules concerning... the fundamental guarantees granted to citizens for the exercise of public freedoms...";
17. Considering that the deferred law expressly states that in the present case the mayor acts as the authority of the State; that he submits his decisions to the hierarchical remedy of the prefect; that he defines in a limited manner the grounds for refusal of approval of reception certificates; that the mayor, as if necessary the prefect, must make an explicit or implicit decision within a month; that, if it provides that, in the event of a refusal by the host to visit his housing, the normal conditions of accommodation are deemed not to be met, it specifies that the refusal must result from an unambiguous demonstration of will; that, under these conditions, the legislator has not misunderstood the extent of its jurisdiction;
With regard to time limits and remedies:
18. Considering that the eleventh paragraph of Article 7 of the above-mentioned Act states that: "A disputed appeal against a refusal of approval of a certificate of acceptance shall be preceded, barely of admissibility, by an administrative appeal to the territorially competent prefect within two months from the refusal of the certificate of acceptance; that the following paragraph provides that the silence kept for more than one month by the mayor or by the prefect shall be valid
19. Considering that, contrary to what the appellants support, the requirement of a pre-administered administrative remedy, barely an inadmissible remedy of litigation, does not ignore the right to an effective remedy as a result of Article 16 of the Declaration of 1789; that this requirement does not in fact prohibit the person concerned from appealing to the administrative judge of the referees without waiting
With regard to the automated processing of applications for validation of reception certificates:
20. Considering that under the fourteenth paragraph of Article 7 of the referred law: "Requests for validation of reception certificates may be memorized and subject to automated processing in order to combat procedural diversions. The corresponding files are put in place by the mayors, according to provisions determined by a decree in the Council of State, taken after advice of the National Commission of Computer Science and Freedoms. This decree specifies the duration of retention and the conditions for updating the recorded information, the terms and conditions for enabling persons to consult these files and, where applicable, the conditions under which interested persons may exercise their right to access";
21. Considering that the members of Parliament and requesting senators argue that satisfactory conciliation has not been carried out by these provisions between the safeguarding of public order and respect for privacy;
22. Considering that under Article 2 of the Declaration of 1789: "The purpose of any political association is to preserve the natural and imprescriptible rights of man. These rights are freedom, property, security and resistance to oppression"; that freedom proclaimed by this article implies respect for privacy;
23. Considering that the purpose of automated processing of nominal data that the mayors may institute in their capacity as agents of the State, under the criticized provision, is the fight against irregular immigration; that this purpose clearly participates in the safeguarding of public order which is a requirement of constitutional value; that the law refers to a precaution in the Council of State, taken after advice of the National Commission of Computer Science and Freedoms
24. Considering that it follows that, with the exception of the words declared contrary to the Constitution for the reasons given in regard to 13, Article 7 is in conformity with the Constitution;
On articles 8 and 21:
25. Considering that article 8 of the referred law amends article 6 of the order of 2 November 1945; that apart from the cases where the resident card is issued in full right under article 15 of the order, the new article 6 provides for the issuance of a first resident card "to the republican integration of the foreigner into the French society, appreciated in particular with regard to his sufficient knowledge of the French language and
26. Considering that Article 21 of the deferred law amends Article 14 of the order; that it prescribes to two or five years the condition of uninterrupted residence in France required for the issuance, other than in full law, of the resident card, and subordinates it to the republican integration of the foreigner;
27. Considering that, according to the applicants, "by linking the issue of the resident card to conditions that previously were more required for obtaining nationality, the legislator made a manifest error of appreciation in respect of individual freedom and the principle of equality"; that they also invoke the right to lead a normal private and family life and criticize both the extension of the required residence period
28. Considering, on the one hand, that there is no principle that no rule of constitutional value shall guarantee to foreigners the general and absolute rights of access and residence in the national territory; that, in the light of the general interest that it has been assigned, that a long-term resident status be established, the legislator has been able to require that the obtaining of the residence card issued under Article 14
29. Considering, on the other hand, that, under the 1st of section 12 bis of the order, in its writing resulting from the law referred, the temporary residence card bearing the mention "private and family life" is issued in full right, unless its presence constitutes a threat to public order, "for a minor foreigner, or in the year following its eighteenth anniversary, of which at least one of the parents is the holder of the that, in the same way, under the 6th of Article 12bis, this card is issued "in a foreign country, not living in a state of polygamy, which is the father or mother of a minor French child residing in France provided that it establishes an effective contribution to the maintenance and education of the child under the conditions provided for in Article 371-2 of the Civil Code since the birth of the latter or since 1946
30. Considering that the mayor's optional referral by the prefect, for the assessment of the condition of integration, is consultative in nature; that, therefore, in fact, lacks the grievance drawn from what the legislator would have delegated to a local elect a prerogative by nature to the State;
31. Considering that, under these conditions, the grievances invoked against sections 8 and 21 must be dismissed;
On Article 19:
32. Considering that the purpose of the I of Article 19 of the referred law is to amend the composition of the commission of the residence permit established by Article 12 quater of the order of 2 November 1945;
33. Considering that, according to the authors of the referrals, the commission of the residence permit, which will include a personality designated by the prefect for his competence in public security and a representative of the mayors of the department, will see the magistrates who sit in the minority and lose his independence; that, in their view, the contradictory nature of the procedure and respect for the rights of the defence will not be assured; that the conditions of intervention of the commission's rapporteur, who is a representative of the prefect, are not specified;
34. Considering that the criticized provision, which is limited to modifying the composition of an administrative commission of the advisory State, is not contrary to any constitutional principle; that it is not more incompeted with negative incompetence, provided that neither article 34 of the Constitution nor any other of the provisions of the Constitution provides in the field of the law the definition of the role of the rapporteur of such a commission;
Articles 22, 23 and 24:
35. Considering that Article 22 of the law referred to bears from one to two years the period of marriage required for the granting of full right of the resident card granted, under the 1st of Article 15 of the order, to any foreigner who regularly resides in France and married to a French national, provided that the community of life between the spouses has not ceased, that the spouse has retained French nationality and, when the marriage has been celebrated,
36. Considering that Articles 23 and 24 repealed respectively the 3rd and 5th of Article 15 of the order which provided, under certain conditions, the right of the resident card to those who, who regularly stay on French soil, are either the father or mother of a French child residing in France, or a spouse or minor child of a foreigner holding a resident card;
37. Considering that the tenth paragraph of the Preamble to the Constitution of 27 October 1946 states that "the nation shall provide the individual and the family with the necessary conditions for their development"; that it is the result of this provision that foreigners whose residence in France is stable and regular have, like nationals, the right to lead a normal family life;
38. Considering, however, that neither principle nor any rule of constitutional value guarantees foreigners the general and absolute rights of access and residence in the national territory; that it is the responsibility of the legislator to ensure the conciliation between the safeguarding of public order, which is an objective of constitutional value and the requirements of the right to lead a normal family life;
39. Considering that, provided that their presence does not constitute a threat to public order, aliens losing the benefit of the resident card under the provisions criticized retain that of the temporary residence card, which will be issued to them in full right under the 1°, 4° and 6° of Article 12 bis of the order of 2 November 1945 amended by Article 17 of the law referred; therefore, contrary to what the complainants support, the provisions criticized do not ignore the freedom of marriage or the right to lead a normal family life;
On Article 28:
40. Considering that Article 21 of the order of 2 November 1945 defines and penalizes the offences of assistance to the entry, movement and irregular stay of a foreigner in the French territory and that of another State party to the convention signed in Schengen on 19 June 1990; that Article 28 of the law referred to amend this article 21, in particular with a view to extending the repression to the aid of "the migrant entry,
41. Considering that the authors of the two referrals question the conformity to the Constitution of the 6th of Article 28, which adds to the I of Article 21 a paragraph according to which "... the irregular situation of the foreigner is appreciated in relation to the legislation of the Member State or the State party concerned ..."; that, according to them, by so doing depends on the offence of a foreign law, whereas its intentional element would be regarded as a breach of the French law only
42. Considering that the criticized provision is limited to defining a constituent element inherent in any transnational offence of assistance in the irregular stay of a foreigner; that such criminal acts, established by the French criminal law in accordance with the international conventions to which France is a party, are not in conflict with any principle or rule of constitutional value; that they are in full law applicable to the principle set out in article 121-3 of the Criminal Code that there is no offence; that, under these conditions, the disputed provision does not ignore Article 8 of the 1789 Declaration;
In section 31:
43. Considering that article 21 quater of the order of 2 November 1945, created by article 31 of the law referred, prohibited and repressed, on the one hand, the fact of contracting a marriage "for the sole purpose of obtaining, or obtaining, a residence permit, or for the sole purpose of acquiring, or of acquiring, French nationality" and, on the other hand, the organization of a marriage
In section 42:
44. Considering that this article amends the conditions of family reunification as set out in article 29 of the order of 2 November 1945; that in particular, it gives the IV of article 29 the following wording: "In the event of a breach of common life, the temporary residence card that has been handed over to the spouse of a foreigner may, for the two years following its issuance, be subject to withdrawal or refusal of renewal. When the rupture of the common life is preceded by the issuance of the title, the prefect, or in Paris the police prefect, refuses to issue the temporary residence card. - However, when the community of life was broken on the initiative of the foreigner because of the domestic violence he suffered on the part of his spouse, the prefect may grant the renewal of the title";
45. Considering that the complainants are grieving these provisions to disproportionately affect the "right to lead a private life" on the grounds that the period during which the right to a stay may be called into question is from one to two years and that "the holder of the residence permit may have suffered the rupture of the common life without his will";
46. Considering that no rule or principle of constitutional value guarantees the maintenance or renewal of a particular residence permit where the conditions laid upon the issuance of this title are no longer satisfied; that, therefore, the claim must be dismissed;
In section 49:
47. Considering that section 49 of the referred law, which amends section 35 bis of the order of 2 November 1945, reformes the conditions under which a foreigner who is subject to a measure of removal from French territory may be placed and held in premises not falling within the prison administration;
48. Considering that the applicants criticize these new provisions as they relate to the notification of the rights of aliens subject to detention, their access to lawyers, the right to asylum, the extension of detention and judicial proceedings;
With regard to the notification of rights and access to counsel:
49. Considering that the eighth preambular paragraph of the new article 35 bis of the order provides that, at the time of detention, aliens are informed of their rights "as soon as possible"; that the same preambular paragraph indicates that, in places of detention, aliens have access in all circumstances, "except in cases of force majeure", to a space to speak confidentially with their lawyer;
50. Considering that, according to the appellants, the fact that a foreigner placed in custody is informed of his rights "as soon as possible" and not "immediately" would infringe on the rights of the defence; that he would likewise restrict the "access of the foreigner to the lawyer in case of force majeure";
51. Considering, in the first place, that the detention of a foreigner in question of his or her individual freedom, it is important to inform him as soon as possible of the rights that he or she may exercise; that the provisions providing that such notification is made "as soon as possible" require information that, if it cannot be immediate for objective reasons, must be carried out as soon as possible;
52. Considering, secondly, that the exception provided by the legislator "in case of force majeure" does not apply to the possibility for a foreigner to be assisted by a lawyer in the context of a detention, but only to access a space allowing him to speak with him in a confidential manner; that, in the meantime, the occurrence of a force majeure event would, even in the silence of the law, be such as to exempt the administration of its obligation to give access to such a space;
53. Considering that it is the result of the foregoing that the provisions criticized do not infringe the rights of the defence;
With regard to the right of asylum:
54. Considering that the V of the new article 35 bis of the order states: "On his arrival at the detention centre, the foreigner receives notification of the rights he is likely to exercise in respect of asylum applications. In particular, he is advised that his application for asylum will no longer be admissible during the period of detention if it is formulated more than five days after that notification."
55. Considering that, according to the complainants, the "forclusion of time" that regulates the filing of asylum applications in custody "is not justified by public order or by any other circumstance" and " violates the right of asylum";
56. Considering that the Preamble to the Constitution of 27 October 1946, to which the Preamble to the 1958 Constitution refers, states in its fourth paragraph: "Every man persecuted because of his action in favour of freedom has the right to asylum in the territories of the Republic"; that it is the duty of the legislator to ensure in all circumstances all the legal guarantees contained in this constitutional requirement;
57. Considering that, by providing that an application for asylum will be inadmissible if it is formulated more than five days after the placement of the alien in a detention centre, the legislator wanted to reconcile the respect for the right to asylum and, by avoiding requests for a dilatory character, the need to guarantee the execution of the removal measures, which participates in the safeguard of public order; that it has provided, in this regard,
58. Considering that it is the result of the specific reference made by the legislator to the particular category of the "centres" of retention in Article 35 bis that the five-day period referred to in this provision does not cover the period eventually held by a foreigner in a local of another nature;
59. Considering, furthermore, that, as recalls, in its current drafting, article 27 bis of the order: "A foreigner may not be distant to a country if he establishes that his life or his freedom are threatened or that he is exposed to treatment contrary to article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950";
60. Considering that, under these conditions, the disputed provision is not contrary to the Constitution;
With regard to the duration and grounds of detention:
61. Considering that section 49 of the referred law extends the length of time during which aliens placed in custody may be held in the premises provided for this purpose; that paragraph I of the new section 35 bis of the order gives to the judicial authority, when a period of forty-eight hours has elapsed since the placement decision, the possibility of prolonging that retention for a period of fifteen days; that at the end of that period, paragraphs II and III of the same article provide that the judge may renew the detention, in circumstances limited to fifteen or five additional days, respectively;
As for the duration of detention and the role of the judicial authority:
62. Considering that, according to the appellants, the lengthening of detention would be to "deprive the judicial judge of the possibility to play fully his role as custodian of individual freedoms as defined by Article 66 of the Constitution"; that "the circumstance that the decision to hold in custody is taken by the judge of freedoms and detention does not purge that vice"; that, once the detention is held in a private position, the judge would "
63. Considering that under Article 66 of the Constitution: "No one may be arbitrarily detained. - The judicial authority, custodian of individual freedom, ensures that this principle is respected under the conditions laid down by law."
64. Considering, first of all, that the disputed provision does not call into question the control of the judicial authority over the retention, beyond forty-eight hours, of a foreigner who has been subject to a measure of removal from French territory; that the legislator has provided that on this occasion, the judge, after having ascertained that the foreigner has been placed in a situation of asserting his rights, the decision of the legislator regarding his rights
65. Considering, in the second place, that the extension of the duration of detention is without effect on the right recognized abroad to challenge the administrative decision which forces him to leave French territory; that this right is implemented by article 22 bis of the order; that in the event of a cancellation of the removal measure by the administrative judge, it shall be put to an immediate end to the retention of the alien, who is then provided with a temporary residence permit until the prefect has again ruled on his case;
66. Considering, in the third place, that the foreigner can only be held in custody for the time strictly necessary for his departure, the administration to exercise due diligence in this regard; that the judicial authority retains the opportunity to interrupt at any time the extension of detention, its own initiative or at the request of the foreigner, where the circumstances of law or fact justify it;
67. Considering that, subject to the reservation set out in the previous consideration, the grievances invoked must be dismissed;
As to the reasons for an extension of detention:
68. Considering that, according to the appellants, the provisions of Article 35 bis III providing for the possibility of a further extension of detention for a period of five days infringe upon individual freedom and the principle of proportionality of the penalties enshrined in Article 8 of the 1789 Declaration; that, in their view, the circumstances that could be based on this extension are "to be completely outside" to the person concerned and therefore of a nature "to lead to the deprivation of liberty of a person for acts to which it is foreign";
69. Considering, in the first place, that the maintenance of a foreigner in custody under this provision is only possible if the removal measure taken against him could not be carried out, "in spite of the diligence of the administration", because of the lack of issuance or the issuance of the travel documents by the consulate to which he reports or the absence of means of transport; that the duration of the extension in question is justified by the reasons for the reasons
70. Considering, secondly, that the legislator has provided that this extension of detention can only be ordered when it is established that the issuance of travel documents or the presence of a means of transport must intervene "on short notice", so that the conditions necessary for the enforcement of the removal measure can be met within the five-day extension period;
71. Considering that, under these conditions, the legislature has not ignored any of the constitutional requirements invoked by the applicants;
With respect to the maintenance of a foreigner at the disposal of justice for a period of four hours when an order terminates his detention:
72. Considering that the last paragraphs of paragraphs I, II and III and paragraph IV of article 35 bis of the order, derived from article 49 of the law referred to, provide that the Public Prosecution Service may appeal against orders of release or house arrest issued by the Justice of Freedoms and Detention with respect to foreigners held in custody; may also, within a period of four hours, make an application for suspensive effect; that the alien is kept at the disposal of the justice system for the same period of four hours; and, if the prosecutor of the Republic makes an appeal with a request for suspensive effect, until the appeal is decided on;
73. Considering that, according to the appellants, the continued availability of justice for a person whose release was ordered by a judge would be unaware of the role of custodian of individual freedom that the Constitution recognizes to the judicial judge;
74. Considering that, in principle, it is the result of Article 66 of the Constitution that, when a magistrate of the seat has, in the fullness of the powers conferred upon him by his role as custodian of individual freedom, decided by a court decision that a person must be released, he cannot be made an obstacle to that decision, if any, in the expectation of the judge of appeal;
75. Considering, however, that the judicial authority includes both the magistrates of the siege and those of the public prosecutor; that the public prosecutor has received from the law referred competence to act under specific conditions, which distinguish it from the parties to the proceedings that are the foreigner and the representative of the State in the department;
76. Considering that the legislator has provided that the prosecutor of the Republic cannot ask the first president of the appeal court or his delegate to declare the appeal suspensive only when the person concerned has no effective representation guarantees or in case of a serious threat to the public order; that the purpose of the appeal is to ensure the maintenance of the person concerned at the disposal of the justice; that the request of the prosecutor of the Republic, who shall
77. Considering that the legislator has provided that the first president of the Court of Appeal or his delegate must make a decision "without delay" on the request for a suspensive effect of the appeal from the prosecutor of the Republic; that the term "without delay" implies a decision that, if it cannot be immediate for reasons holding the exercise of the rights of the defence, must be rendered as soon as possible;
78. Considering that, under these conditions, the disputed provision is not contrary to the Constitution;
With regard to the holding of hearings in specially designed rooms or through audio-visual telecommunications techniques:
79. Considering that the ninth paragraph of Article 35 bis of the Order, in its drafting from Article 49 of the law referred to, provides that the judge of freedoms and detention, seized for the purpose of an extension of detention, shall rule at the seat of the court of large instance; that, however, if a courtroom has been arranged in the immediate vicinity of this place of detention, it shall rule in this room; that, in addition, the second paragraph of Article 35 bis, paragraph VII, provides that the judge may decide, on a proposal by the prefect and with the consent of the foreigner, that the hearings held to rule on a request for an extension of the detention, on an appeal filed by the Public Prosecutor's Office, and, where applicable, on a request for suspensive effect, may take place with the use of audiovisual telecommunications means;
80. Considering that, according to the appellants, the possibility of holding hearings in special rooms or through audio-visual telecommunications means has failed to the public nature of the proceedings, the rights of defence and the right to a fair trial;
81. Considering that it is the result of parliamentary work that by authorizing the use of specially arranged courtrooms in the immediate vicinity of places of detention or audio-visual telecommunications, the legislator has heard limiting transfers that are contrary to the dignity of the aliens concerned, such as a good administration of justice; that, by itself, the holding of a hearing in a room close to a place of detention is not contrary to any constitutional principle; that in this case, the legislator expressly provided that the said room should be "specially arranged" to ensure the clarity, security and sincerity of the debates and allow the judge to " publicly rule";
82. Considering that the conduct of hearings through audio-visual telecommunications techniques is subject to the consent of the foreigner, the confidentiality of the transmission and the conduct of the proceedings in each of the two courtrooms open to the public;
83. Considering that, under these conditions, the above-mentioned provisions sufficiently guarantee a fair and fair trial;
On Article 50:
84. Considering that Article 50 of the referred law, which amends Article 35 quater of the order of 2 November 1945, reformes the conditions under which a foreigner being the subject of a decision of refusal to enter French territory or requesting his admission to asylum may be placed and maintained in a waiting area;
85. Considering that the appellants criticize these provisions to limit "access to counsel", to allow the maintenance of a foreigner at the disposal of justice for a period of four hours when an order puts an end to his or her stay in a waiting area, and to organize hearings in specially equipped rooms or through audiovisual telecommunications techniques;
86. Considering that these grievances are identical to those relating to the similar provisions contained in section 49 of the law referred to; that they must be rejected on the same grounds;
In section 53:
87. Considering that Article 53 inserts in the order of 2 November 1945 an article 35 octies which, on an experimental basis and under the conditions it defines, authorizes the State to pass with persons of public or private law, approved under the law of 12 July 1983 referred to above, "the contracts relating to the transport of persons detained in detention centres or maintained in waiting zones"; that under the seventh paragraph of the
88. Considering that, according to the referral, these provisions lead to delegating to a private person a mission of sovereignty that is inherently in the State; that, in addition, by allowing the personnel of the attribute companies of the transport markets to be armed, the legislator would have adopted an unnecessary measure that could affect the individual freedom of persons transported as to public order;
89. Considering, in the first place, that, under the second paragraph of Article 35 octies, the markets in question "are limited to the conduct and security measures inherent in the latter, to the exclusion of what concerns the supervision of persons retained or maintained in the course of the carriage that remains insured by the physical State"; that such authorization strictly limits the subject matter of the markets to the provision of competent personnel, to the provision of that, by the exclusion of any form of supervision of the persons transported, it reserves all the tasks indivisible from the missions of sovereignty whose exercise belongs only to the State; that it follows that the grievance is unfounded;
90. Considering, secondly, that the possibility of being armed given to private agents responsible for transfers, with the aim of ensuring, in case of need, their personal protection, is not intended and cannot have the effect of allowing these agents to carry out surveillance missions of the persons transported; that it will, on the one hand, return to the decree in the Council of State strictly provided for in Article 35 octies and, on the other, to the public authorities that, subject to this reservation, article 53 of the law referred to is not contrary to the Constitution;
On Article 76:
91. Considering that Article 76 amends Article 175-2 of the Civil Code relating to objections to marriage by the prosecutor of the Republic seized by the officer of the civil status; that under the first two paragraphs of this article in their new wording: "When there are substantial evidences allowing to presume, if any, in the light of the hearing provided for in Article 63, that the marriage envisaged is likely to be annulled in the title of the officer He informs the concerned. Makes a serious indication that, for a foreign national, he does not justify the regularity of his/her stay, when he/she was invited by the civil status officer who must proceed with the marriage. The latter immediately informs the prefect or, in Paris, the police prefect of this situation. - The prosecutor of the Republic is obliged, within fifteen days of his referral, either to let the marriage proceed or to oppose the marriage, or to decide that he will be suspended from his celebration, pending the results of the investigation to which he conducts. He makes his decision known to the civil officer, to the concerned and, where applicable, to the prefect or, in Paris, to the police officer";
92. Considering that the complainants argue that such provisions would affect the freedom of marriage, individual freedom and the right to privacy and family life;
93. Considering that Article 175-2 of the Civil Code, in its drafting resulting from Article 76 of the law referred, provides the power of the civil officer, where there are substantial indications that the marriage is only envisaged for a purpose other than the matrimonial union, to seize the prosecutor of the Republic; that the prosecutor of the Republic has a period of fifteen days during which he may, by reasoned decision that, in the light of the guarantees thus established, the procedure provided for in article 175-2 of the Civil Code cannot be considered as excessively violating the constitutional principle of freedom of marriage;
94. Considering, however, that respect for the freedom of marriage, a component of personal freedom protected by articles 2 and 4 of the Declaration of 1789, opposes that the irregular nature of a foreigner's stay impedes, by himself, the marriage of the person concerned;
95. Considering, in the first place, that, if the irregular nature of a foreigner's stay may constitute in certain circumstances, coupled with other elements, a serious indication that marriage is considered for another purpose than matrimonial union, the legislator, considering that the fact for a foreigner to be unable to justify the regularity of his stay would in all cases constitute a serious indication of the absence of constitutional consent, has infringed on the principle of the marriage.
96. Considering, secondly, that by providing, on the one hand, the notification to the prefectural authority of the situation of a foreigner performing the formalities of marriage without justifying the regularity of his stay and, on the other hand, the transmission to the prefect of the decision of the prosecutor of the Republic to oppose the celebration of marriage, to order that he be suspended or to authorize him to marry they also violate the constitutional principle of freedom of marriage;
97. Considering that it is the result of the foregoing that the last two sentences of the first paragraph of the new article 175-2 of the Civil Code, and in the last sentence of the second paragraph of the same article, the words "and, if any, to the prefect or, in Paris, to the police prefect" must be declared contrary to the Constitution;
On Article 1:
98. Considering that Article 1 of the above-mentioned Act provides that, each year, the Government shall submit to Parliament a report on the multi-year directions of immigration policy; that its last paragraph specifies that: "The submission of the report is followed by a debate";
99. Considering that, under Article 48 of the Constitution: "Without prejudice to the application of the last three paragraphs of Article 28, the agenda of the assemblies shall, by priority and in the order that the Government has established, involve the discussion of the bills tabled by the Government and of the bills accepted by it. - At least one session per week is reserved by priority to the questions of members of Parliament and the replies of the Government. - A session per month is reserved by priority to the agenda set by each assembly";
100. Considering that, in the absence of constitutional provisions authorizing it, it is not up to the legislature to impose a debate in a public session; that such an obligation could hinder the prerogatives that the Government or each of the assemblies, as the case may be, hold of the Constitution for the fixing of the agenda;
101. Considering, therefore, that the last paragraph of Article 1 must be declared contrary to the Constitution;
102. Considering that there is no need for the Constitutional Council to raise, on its own, any other matter of conformity with the Constitution,
Decides:
The following provisions of the Immigration Control Act, the residence of foreigners in France and nationality are declared contrary to the Constitution:
- the last paragraph of Article 1;
- in the fourth paragraph of Article 7, the words: ", and the costs of his repatriation if the foreigner does not have, at the end of this period, means to leave French territory";
- the last two sentences of the second paragraph of Article 76;
- in the third paragraph of the same article, the words "and, if any, to the prefect or, in Paris, to the police prefect".
The surplus of articles 1st, 7 and 76 of the Act and the other contested articles are declared in conformity with the Constitution under the reservations set out in paragraphs 66 and 90.
This decision will be published in the Official Journal of the French Republic.
Deliberated by the Constitutional Council in its meeting of 20 November 2003, on which MM was sitting. Yves Guéna, President, Michel Ameller, Jean-Claude Colliard, Olivier Dutheillet de Lamothe, Pierre Joxe, Pierre Mazeaud, Mmes Monique Pelletier, Dominique Schnapper and Simone Veil.
The president,
Yves Guéna
