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Referral To The Constitutional Council Dated November 4, 2003 Presented By More Than Sixty Members, Pursuant To Article 61, Paragraph 2, Of The Constitution, And Referred In The Decision No. 2003-484 Dc

Original Language Title: Saisine du Conseil constitutionnel en date du 4 novembre 2003 présentée par plus de soixante députés, en application de l'article 61, alinéa 2, de la Constitution, et visée dans la décision n° 2003-484 DC

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JORF n°274 of 27 November 2003 page 20167
text No. 4



Seizure of the Constitutional Council dated 4 November 2003 submitted by more than sixty members, pursuant to Article 61, paragraph 2, of the Constitution, and referred to in Decision No. 2003-484 DC

NOR: CSCL0306937X ELI: Not available



LOI RELATIVE À LA MAÎTRISE DE L'IMMIGRATION,
IN FRANCE AND NATIONALITY


Mr.President, ladies and gentlemen, the members of the Constitutional Council, we have the honour to refer to you, pursuant to the second paragraph of Article 61 of the Constitution, the entire law on immigration control, the residence of foreigners in France and nationality as adopted by Parliament.
In support of this referral, we develop the following grievances and means against, in particular, articles 5, 7, 8, 19, 21, 22, 23, 24, 28, 31, 42, 49, 50, 53, 76.


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As an opening, and in order to avoid any misunderstood in this case, as well as any unhappy exploitation that some might want to do, it seems useful to us to recall that, in accordance with your jurisprudence, no principle nor any rule of constitutional value assures aliens of the general and absolute rights of access and residence in the national territory, it is as much acquired as the legislator must respect the fundamental rights and freedoms of constitutional value 1993
However, the presently criticized law seriously ignores this balance that you have to enforce. That, in particular, the mechanisms thus put in place are of a nature, in the opinion of all humanitarian associations working in this sector as well as the National Advisory Commission on Human Rights, to further precarise foreigners, including the best integrated ones, and to place immigration policy under the pressure of election periods. That, in an area of State sovereignty, giving, for example, many powers to mayors, without sufficient and appropriate guarantees, in terms of the access and residence of foreigners to the national territory can only lead to decentralisation of integration and, no one may pretend to have ignored it, to put it under the breath of bad winds. Similarly, derogations from the guiding principles of criminal procedure indicate drift to exceptional procedures that do not mean their name. These dimensions, at the time of the threat posed by the far right to the field of political ideas, which today manages local authorities alone or through alliances confessed or not, cannot remain outside the constitutional debate.
That is why it seems so important to us that you will prevail fundamental rights and freedoms, far from passions and vain quarrels, by remaining simply faithful to your jurisprudence protecting Republican principles. Your decision is, therefore, particularly hoped.


I. - On Article 5 of the Law


This article proposes a new wording for article 5 of Order No. 45-2658 of 2 November 1945, and, in particular, specifies the powers of the authority which may render the refusal of access to the territory. However, it is specified that "the foreigner is invited to indicate on the notification if he wishes to benefit from the free day" prior to his repatriation.
Such a provision ignores the principle of equality before the law as a result of Article 6 of the Declaration of 1789, according to which "the law is the same for all either that it protects or that it punishes", and together Article 16 of the same text, which makes the guarantee of rights one of the founding values of the democratic State. At the very least, and particularly subsidiary, the negative incompetence committed by the legislator is obvious and Article 34 of the Constitution is unknown.
In this case, this ability to renounce such a right is recognized to a foreigner when the question is raised, in a difficult situation and it will not necessarily measure the scope of decisions related to a legal regime whose complexity, including for practitioners, is the only point of consensus.
The nature of a protective right applicable to all, and therefore unsusceptible of renunciation, is inferred from the writing until now in force. The last paragraph of section 5 of the 1945 order specifies, in fact, that in no case the refusal of entry may result in a repatriation action against the consent of the interested party before the expiry of a period of one frank day.
It will also be noted that the criticized article does not specify any of the conditions under which the foreigner will be "invited" to waive his right. Thus, it will be abroad to say whether he "desirs" of this guarantee to which many procedural rights and guarantees are attached. In the case of people whose control of the French language is not always obvious, it is difficult to ask them to express a "will" as to the benefit of a right. Even more, and without regard to the knowledge of the national idiom, it is not acceptable to organize the renunciation of a right in the mode of wish. From what moment and with what degree of precision of his expression will he be deemed to have desired, desired, wanted to give up his right?
By simply retaining such an unclear drafting as to access to a fundamental procedural guarantee, the legislator, in any case, has ignored its own competence and violated article 34 of the Constitution.
Of all these leaders, the invalidation of this penultimate sentence of Article 5 is certain.


II. - On Article 7 of the Law


This article, under the guise of re-establishing the procedure for issuing the shelter certificate, increases control over the privacy and family life of individuals. The validation of the greeting certificate is subject, in this context, to the discretionary discretion of the mayor of the host commune of residence and to the control exercised by the officers belonging to the services of the municipality. More seriously, the third paragraph of the drafting of this new article 5-3 requires the host to undertake to take charge, for the duration of the visit, of the residence expenses of the hosted foreigner and the costs of his repatriation. In addition, the challenge of refusal to validate the certificate must be subject to a mandatory hierarchical remedy. Finally, it appears that requests for certificates, not the only decisions of refusal, are the subject of a file placed under the exclusive control of the mayor of the municipality.
Certainly, the authors of the referral do not know that you have validated a similar system as part of your decision of August 13, 1993 (precise, considering 8 and s.). And they hear that they are committed to fighting the "sleeping merchants" and other negriers of modern times who trade in the distress of others.
But the article in question goes away and your jurisprudence and the goal of safeguarding public order.
The mechanism here criticized is substantially different from that accepted by you in 1993 and includes disproportionate constraints in relation to the public policy objective to be attained, or even unrelated to it. This article violates the right to privacy and family life, and together the principle of equality before the law, individual freedom, the right to recourse, and in any case, is incompetence negative.
II-1. On the lack of knowledge of the right to privacy as guaranteed by article 2 of the Declaration of 1789 and the right to a normal family life as enshrined in the tenth preamble to the 1946 Constitution, and together with the principle of equality before the law:
The right to privacy and the right to a normal family life have been enshrined in your jurisprudence. You have, in particular, strongly recalled "that under Article 2 of the Declaration of Human and Citizen's Rights: the purpose of any political association is to preserve the natural and imprescriptible human rights. These rights are freedom, property, security and resistance to oppression; that freedom proclaimed in this article implies respect for privacy" (Decision No. 99-416 DC of 23 July 1999, considering 45).
You also pay attention to ensuring the effectiveness of the right to a normal family life on the basis of the tenth preambular paragraph of the Constitution of 27 October 1946, after which "the Nation shall provide the individual and the family with the necessary conditions for their development" and you shall give an appreciation of the consequences that such a provision may have in this regard (Decision No. 97-389 DC of 22 April 1997).
In addition, as appropriate, you guarantee respect for the principle of equality, including for foreigners (Decision No. 89-269 DC of 22 January 1990).
In this case, these three rights and principles are clearly violated together by the third paragraph proposed by this new article 5-3.
(i) Indeed, the requirement for the host to have sufficient financial resources to ensure not only the stay of his guest but also to cover the costs of his repatriation constitutes an infringement of privacy, the right to lead a normal family life and the principle of equality.
This provision, which leaves room for the arbitrary, could lead to only allowing France from above to welcome foreigners from above! It ignores these rights and principles, not only with regard to foreigners who wish to receive a loved one, but it also prevents the French from being able to accommodate their family or friends of foreign nationality. A foreign student wishing that a member of his or her family, his or her fiancé, joins him a few days in France, will often not have the means so required. Does a family of modest social condition, but wishing to bring a loved one, have to borrow from what to satisfy this obligation without regard to the subject matter of the law? One could multiply endless examples to show the absurdity of this mechanism and its profound injustice.
Submitting the ability to accommodate family or friends on resource conditions is one of the most blatant attacks that can be imagined on the right to normal private and family life. She's crowded with equality.
Such a discrimination leaves a panic! She's also a perplexed man.
Perplex because networks that organize hosting channels will obviously have the opportunity to display the material means as required. The negriers we must fight without weakness will make fun of what, for them, will be a thin tree of wood.
Under these conditions, neither the general interest nor any objective and rational difference between people from above and people from below, in relation to the purpose of this law, can justify that the reception of the other is forced by the money.
It will be added that this provision is, moreover, entangled with negative incompetence.
(ii) For, in all its precipitation to display a spectacular measure, the legislator neglected to specify under what conditions the "contributive" capacities of the hosts will be appreciated and by whom. No more is indicated what would happen if a host did not, in fine, have the means required during the stay of the guest or at the time of departure. It is true that by chance, the Government has not been able to provide for a fine or imprisonment for the poor! Beyond the unclear character of this provision, one would be sure that the maintenance of a foreigner in the territory beyond the three-month period and while his host would not have financially helped him to join his country would not lead to prosecution against him on the basis of article 21 of the 1945 order punishing assistance to the irregular stay.
It is seen, behind the outrageous nature of this measure, that there are multiple risks to rights and freedoms. Thus, in any case, the legislator could not prescribe such an obligation without further precision. It is true that more precision would inevitably have exacerbated the lack of knowledge of the fundamental rights and freedoms involved.
At any point in taking this paragraph, censorship awaits it.
II-2. On the violation of article 34 of the Constitution:
The validation of the housing certificate by the mayor of the host municipality is based on a procedure that cannot be constitutionally admitted.
In particular, the condition of the mayor's "normal conditions of accommodation" appreciation, his discretion to accept or refuse the certificate, and the conditions in which a role is given to his services are at least vague.
Thus, there is no guarantee that the discretion that the mayor has - "can refuse" - will be sufficiently framed. On the one hand, it is specified that the mayor will act as a state agent, and on the other hand, it is indicated that a hierarchical appeal before the prefect will always be possible. But these two clarifications cannot be wrong. Especially, they can't be enough.
It is here illusory to consider that the mayor can free himself from the political environment in his commune. It is not for nothing that in the 1997 law submitted to your examination, the validation competence of this reception certificate had been transferred to the prefect. No one knows that in reality mayors do not want to have powers that will inevitably place them under the pressure of those who want to make immigration policy an electoral issue.
The mayor will act so little as an agent of the State that, now, the competence of principle to visit the housing escapes the Office of International Migration (hereinafter: IMO) to be delegated to the agents of municipal social services. That is to say that the validation procedure of the accommodation certificates passes under the entire control of the mayor and his services.
The mayor will act so little as a state agent that the criticized article provides for the creation of a file of requests for a housing certificate placed under the exclusive initiative of the mayor and under his control. Logically, such a file, which will be discussed in the following constitutionality, should have been within the purview of the prefect, a purported superior of the mayor who could have consulted it as appropriate. Especially since the constitution of this file is a faculty and therefore it means that its existence will vary from one commune to another. For a policy under the authority of the State, such a variety of tools for the instruction of requests seems astonishing.
In reality, these are the elements of a cluster of indexes under the light of which it appears that in reality the mayor will not act, here, as an agent of the state but, first, as elected local. It is in this position as a person designated after political elections that the criticized article gives him discretion - he may refuse - and not a related jurisdiction.
Under these conditions, it would have been necessary, at the very least, that the law further regulates the exercise of these powers by the mayors. What she didn't do, far enough.
Certainly, the authors of the referral do not know that the mayors have played, in the past, a role in the issue of accommodation certificates. But their control power of their administration was not as important as in the present case. Especially at the time, there was no mayor of the National Front...
Referring to your decision of 13 August 1993, it appears that the mayor's jurisdiction was dependent on the information derived from the control exercised by IMO agents, not by its municipal services, and that his refusal of the certificate's visa was based if it clearly showed that the accommodation could not be normal (decision 93-325 above, considering 8). Similarly, in another context, you have admitted the prefect's power to refuse the validation of the certificate in very specific cases based on objective and rational elements (decision No. 97-389 DC of 22 April 1997). What was required for the prefect should be, at least, for the mayor acting, allegedly, under his authority.
Also in the context of the inaccuracies, questions must be asked about the conditions for the empowerment of municipal officials assigned to this procedure. However, nothing is indicated in the criticized article. This issue is not indifferent to the extent that until then only IMO agents intervened in this framework. With regard to the impact of this procedure on the privacy and family life of individuals, it is important that the public officials concerned demonstrate certain professional qualities and independence and guarantees. However, none of this has been foreseen in this case.
In other words, in view of the powers granted to mayors and their services, at the very least a more precise supervision of the conditions for the exercise of the controls at the applicant's home and the criteria on which the mayor must accept or refuse the certificate.
Under these conditions, and considering the consequences that are attached to the refusal or issuance of a housing certificate, the deficiencies noted are constitutive of a certain negative incompetence.
II-3. On the violation of individual freedom:
The file of applications for validation of reception certificates organized under the control of the mayor of the commune constitutes a grave violation of individual freedom. Certainly, it is anticipated that the decree in the Council of State to intervene for precision will be taken after CNIL's opinion. But that could not be enough.
You recently considered that no constitutional norm is in principle opposed to the use for administrative purposes of nominal data collected through judicial police activities. However, such use would not be aware of the requirements of articles 2 and 4, in particular, of the Declaration of 1789 if, by its excessive nature, it violated the rights or legitimate interests of the persons concerned (Decision No. 2003-467 DC of 13 March 2003, paras. 32-35).
Already, in 1997, faced with the risk of creating a file of this type, you had taken care to recall that if such a file was established, it would be subject to the protective provisions of the individual freedom provided for by the legislation on computer science, files and freedoms (decision of 22 April 1997 above). But you did not validate in yourself and for yourself such a hypothesis. Undoubtedly, the conciliation between the safeguarding of public order and respect for privacy should not be clearly unbalanced (decision of March 13, 2003 referred to above, paras. 21-27).
In this case, it appears that the criticized file is intended to collect only information relating to the privacy of people but in the absence of any offence or even any beginning of offence. The requests for which it is concerned relate to the exercise by each of its most elementary rights: to welcome home that one wants. Therefore, this file can only be viewed as a disproportionate measure with respect to fundamental rights that may be achieved.
Then, it turns out that the constitution of this file does not include any particular warranty: neither the type of nominal information collected nor the retention period of this data. Considering the risks that this file could lead to individual freedom and privacy, it is assumed that the reference to a regulatory text cannot meet the constitutional requirements applicable to the matter.
We must point out, at this moment, that it is at the least strange that the file is placed under the mayor's initiative and control. This one, we are told, acts as a state agent. Also, very logically, this file should be made up of the state services, the department prefecture, and placed under their exclusive control with possibility for the mayor to consult it. Yet it is the opposite that is planned.
There must be an additional threat to individual freedoms.
Given the purpose of this file and the risks of infringement of individual freedom and privacy, and considering the absence of sufficient guarantees, the manifestly disproportionate nature of this provision can only be found.
II-4. On the right to appeal:
The refusal to validate the certificate of accommodation, which may result from the silence kept by the mayor for a month, can only be contested by a prior hierarchical appeal filed before the prefect, which in turn has one month to decide. Therefore, the litigation can only be filed after two months after the refusal of validation.
Such a mechanism deprives the applicant of his right to an effective remedy.
You have had the opportunity, on the basis of Article 16 of the 1789 Declaration, to judge "that, in principle, there should not be substantial infringements of the right of interested persons to exercise an effective remedy before a court" (Decision No. 96-373 DC of 9 April 1996). Formulation that recalls Article 13 of the European Convention on Human Rights on the right to an effective remedy.
In this case, it is the exercise of a constitutionally protected right: the right to conduct a normal private and family life. The possibility of enforcing this fundamental freedom by resorting to the judge in the shortest time should therefore be preserved. However, by imposing a pre-administered administrative remedy, just as unreceivable, the legislator deprives the person who wishes to welcome a relative in a short time.
In the absence of such a procedural constraint, the interested person may, in addition to a substantive remedy against the mayor's decision, referees to the administrative judge as long as fundamental freedom is involved.
By delaying access to the judge, the legislator, under the present circumstances and under the law in question, has deprived interested persons of the right to an effective remedy.
In these circumstances, the words: "only unreceivable" in the paragraph providing for a prior administrative remedy must be invalidated, so that this hierarchical remedy is an alternative, non-mandatory way, to the immediate litigation path.


III. - On articles 8 and 21 of the law


These two articles must be criticized in conjunction as long as the conditions for the issuance of the residence card established by section 21 depend on their implementation of the integration criteria determined by section 8.
Thus, now, the issuance of the first resident card will be subordinated, on the one hand, to a length of residence on the national territory of at least five years, and not more than three, and on the other hand, to the republican integration of the foreigner into French society, appreciated in particular with regard to his sufficient knowledge of the French language and the principles that govern the French Republic.
The authors of the referral are fundamentally attached to republican integration. This is why they criticize a mechanism that tends, on the contrary of its convenient display, to precarize foreigners who have been residing for several years in a regular situation in our territory.
By linking the issuance of the resident card to conditions that had so far been more required for obtaining nationality, the legislator made a manifest error of appreciation in relation to individual freedom and the principle of equality.
In your decision of 13 August 1993, you considered "that the resident card, valid for a period of ten years, is renewable in full right; that, in view of the requirements of safeguarding public order and in view of the objectives of general interest assigned to it, the legislator has been able to demand that the obtaining of this card be subject to the dual condition of the absence of threat to public order and of the regularity of the prior stay concerned".
While the foreigner does not have an absolute right to entry and stay in the territory, you therefore exercise control over the conditions imposed on the issue of such a residence permit. It must be deduced from this writing that criteria for granting this card that is excessively binding would be considered by you as disproportionately impairing individual freedom.
It is tempted to consider that such excessive conditions would also affect the right to normal private and family life. In your decision of April 22, 1997, you censored for infringement of this right and individual freedom, a provision that submitted the renewal of the card to the existence of a simple threat to public order. Certainly, in the latter case, it was the renewal and not the issuance of the first card.
The reconciliation of these two decisions shows that you intend to guarantee the right of foreigners to be able to integrate at best in our country and censor clearly excessive provisions in this regard.
This control cannot surprise, and cannot in any way be seen as encroaching on the prerogatives of Parliament. For the record, the provision censored in 1997 was the resumption, probably by chance, of a proposal by the National Front for the Legislation of 1993. The purpose of this program was to precarize the best-integrated aliens, i.e. those with the resident card or in a position to obtain it.
In the present case, under the guise of republican integration, it is well at an additional pressure that these foreigners have been subjected to in France for several years.
First, the residency requirement is extended to five years instead of three currently. It will be recalled, as information, that the Directive on the Status of Nationals of Long-Term Third-Party Resident Countries emphasizes in its statement of grounds that "the main criterion for the acquisition of long-term resident status should be the length of residence in the territory of a Member State".
Then, it is required of them a degree of integration usually requested for those who aspire to the acquisition of French nationality.
According to Article 8 criticized, the knowledge of the French language and the knowledge of the principles governing the French Republic are the peremptory conditions for obtaining this residence permit. However, it should be recalled that, according to article 43 of the decree of 30 December 1993 taken for the application of article 21-24 of the Civil Code, the assessment of the degree of assimilation to the French community is done by a "agent nominatively designated by the prefect or consular authority" during an interview with the applicant, after which is established "a verbatim record of the degree of assimilation".
The independence of the legislation relating to the entry and residence of foreigners and that concerning nationality had thus far been preserved. This distinction between the two bodies of rules is justified both the rights and duties attached to French nationality are substantially different from those related to the long-term stay. Yet, for the first time, the border between the two regimes is crossed.
But there is more, for at last, this procedure for the issuance of the resident card may be subject, according to section 8 of the law, to the opinion of the mayor of the foreign resident commune; notice whose scope is not specified. At this moment, the mayor does not act as an agent of the state, as the silence of the text shows. It is therefore a political assessment, apart from all objective and rational criteria, that the issuance of the resident card may be subordinated. Again, it is necessary to measure what such a measure can take as concrete consequences. Can we imagine what the mayor of the city of Orange might say about the integration of foreigners? Can we still imagine what the mayor of a city might think of where the far right gets important or threatening electoral scores?
So far, and your jurisprudence has taken care to emphasize it regularly, the entry and stay of foreigners have remained a prerogative of the State. By this measure, a kind of decentralization of integration, it is the principle of equality between foreigners who are at risk of being reached and, beyond that, the policy of the republican state that one can fear of being bitten.
This provision can only lead to unacceptable pressure on mayors and foreigners and ultimately to politicize the integration policy. It is a major risk that the protection of constitutional principles will avoid running. No doubt, you will invalidate the sixth paragraph of Article 14 proposed by Article 21 here criticized and Article 6, paragraphs 5 and 6, as proposed by Article 8 of this Act.


IV. - On Article 19 of the Law


This article amends the composition of the residence commission restored by the law of 11 May 1998. This new writing places in a minority the magistrate of the judicial order and the judge coming from the administrative order.
While this commission does not have a judicial function, it plays a major role in the process of issuing or renewing residence permits. It remains that you have already had the opportunity, in the protection of privacy and individual freedom, to demand, in view of the role assigned by law to a commission, that its composition contains guarantees of independence (Decision No. 94-352 DC of 18 January 1995, cons. 6).
In this case, the fact that a qualified security figure is present, a representative of the mayors of the department, that the mayor of the commune where the foreigner resides is heard at his request, and that a representative of the prefect performs the functions of rapporteur, places the representatives of justice in a situation of inferiority harmful to the independence of the commission.
It will be added that nothing is specified as to the effects of this amendment on respect for the adversarial and defence rights. For example, one may wonder what will happen when the mayor of the municipality concerned asks to be heard by the clerk. It is not guaranteed that he will speak before the foreigner concerned, nor that he will be aware of these words and may reply. Similarly, the role of the rapporteur, assured by the representative of the prefect, is not specified. The general movement of administrative jurisprudence is known as judicial on the role of the rapporteur in the independent administrative authorities. It would have been necessary that the conditions of intervention of this rapporteur be indicated to avoid any misunderstanding.
It can be seen, these various questions lead to questions about respect for the principle of contradiction and the rights of defence before this commission.
In addition, the words: "a qualified personality designated by the prefect or, in Paris, the police prefect, for his competence in public safety or his representative" will only be censored.


V. - On section 22 of the law


This article extends the required marriage time so that the foreigner can enjoy the right of the resident card. From now on, the matrimonial bond will have to be two years.
Such a provision violates the right to normal private and family life and individual freedom. If you have admitted the constitutionality of the provision requiring a period of one year of marriage before the issuance of the resident card, it is at the end of a check on the necessary balance between the preservation of public order and the fundamental rights and freedoms of the person (decision of 13 August 1993 above). You have accepted the same period of one year for the issuance of a temporary residence permit (decision of April 22, 1997 above).
In this case, this extension of the length of the matrimonial bond is manifestly excessive and has a disproportionate violation of the right to normal private and family life.


VI. - On section 23 of the law


This article repeals the 3rd of section 15 of the 1945 order which authorized the issue of the residence card abroad, the father or mother of a French child residing in France, on the condition that he or she exercises parental authority in respect of that child or that he or she actually supports his or her needs.
Again, the violation of the right to a normal private and family life is manifest.


VII. - On Article 24 of the Law


This provision repeals the 5th of Article 15 of the 1945 Order which allowed the issuance of the said right-hand resident card to the spouse and minor children or in the year following their eighteenth anniversary of the foreigner holding the resident card, who were allowed to stay in France for family reunification.
The excessive violation of the right to a normal private and family life is equally obvious and the inevitable censorship.


VIII. - On section 28 of the law


This article amends article 21 of the 1945 order prohibiting assistance in the irregular stay of a foreigner. Paragraph 6° proposed by this article to amend the I of the above-mentioned article states that "the irregular situation of the foreigner is appreciated under the laws of the Member State or the State Party concerned".
Such a provision violates the principle of equality of offences and penalties as a result of Article 8 of the 1789 Declaration.
Indeed, the irregularity of the foreign situation is a constituent element of the entry and residence aid offence. This presupposes that the person making this assistance is informed of the conditions of regularity of the stay so that the intentional element is present. But it is well under French law that this regularity is known by the person who helps the foreigner. It is therefore impossible to prosecute a person on the ground that she would have helped a foreigner whose regularity depends on foreign legislation.
That is what the criticized words lead to.
Their censorship will inevitably intervene.


IX. - On section 42 of the law


This article aims to change the conditions of family reunification that you have strongly guaranteed the strength under the tenth preambular paragraph of the 1946 Constitution, which states that "the nation shall provide the individual and the family with the necessary conditions for their development" (decision of 13 August 1993 above). In this regard, you give yourself scrupulous control of the rules that exist in this regard by censoring any provision that would be excessively injurious to the right that arises from this constitutional norm.
In this case, the 6th of section 42 of the Creed Act amends the IV of section 29 of the 1945 order by prescribing that 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 common life break is prior to the issuance of the title, the competent authority refuses to issue the temporary residence permit.
This possibility to return for two years on the issue of a residence permit, regardless of the quality of the integration of the foreigner concerned, has a disproportionate violation of the right to privacy and family life of the foreigner. This means that for two years the foreigner is in precarious situation as the evolution of his private life, sometimes towards misfortune, can lead to the withdrawal of his residence permit. Because the holder of the residence permit was able to suffer the rupture of the common life beyond his will.
The extension of this period of suspicion that weighs on the foreigner, from one to two years old, is a disproportionate violation of the right to privacy.


X. - On section 49 of the law


The purpose of this article is to amend the drafting of article 35 bis of the order of 2 November 1945. It extends the duration of the period during which a foreigner may be placed in administrative detention, which may reach, in fine, 32 days. It amends the applicable procedure by re-establishing the suspensive nature of the appeal, at the request of the Public Prosecutor's Office, yet abolished by the law of 11 May 1998. It provides for exceptional procedures for the conditions under which the judicial judge will decide on the retention or non-retention of the alien.
These various amendments violate article 66 of the Constitution and combine individual freedom, the rights of defence and the right to a fair trial.
X-1. On the violation of article 66 of the Constitution and of individual freedom:
You have so far been careful that the judicial judge can intervene as soon as possible in order to protect individual freedom, considering that it can only be held to be safeguarded if the judge intervenes as soon as possible. It was therefore censored the provision that provided for detention for seven days without the judge taking action (Decision No. 79-109 DC of 9 January 1980).
This case law was reiterated in your decision of 13 August 1993 that the detention cannot deprive the judicial authority of the possibility of interrupting the continuation of detention, and that such a measure, even under the control of the judge, cannot, except absolute urgency and threatens a particular gravity for public order, be extended without prejudice to the individual freedom guaranteed by the Constitution (decision above). Jurisprudence which was not contradicted by the decision of 22 April 1997 which, in a different context, maintained the rule of the intervention of the judicial judge as soon as possible and, for the benefit of an interpretation reserve, limited the reiteration of a detention measure only once.
(i) In this case, the succession of periods of lengthening of detention, either by fifteen days, or for a five-day period, results, in a misappropriate manner, in extending the retention of up to 32 days and depriving the judicial judge of the ability to play fully his role as custodian of individual freedoms as defined in Article 66 of the Constitution.
Thus, the foreigner may be detained for fifteen days without the judicial judge being able to intervene again to decide on his release. The circumstance that the detention decision is taken by the judge of freedoms and detention does not serve that vice. While the foreigner sees his or her limited individual freedom as a result of the intervention of a judicial judge, he or she is deprived of the possibility of adapting the duration of detention according to the circumstances of fact that may be involved. Therefore, the alternative is reduced: either it extends for fifteen or five days, depending on the case, or it releases the foreigner. But once the decision of the judge to retain custody, the foreigner will be deprived of the benefit of the judicial judge for at least fifteen days. The power of appreciation of the judge of freedoms is therefore compelled and cannot fully fulfil his office as guardian of individual freedoms.
Your jurisprudence requiring that the intervention of the judicial judge be the fastest possible must therefore find here a new application.
Especially since conciliation with the aim of safeguarding public order does not impose such a retention period. It is well known that the issue of the foreign pass takes place in the very first days of detention and that the effective conduct on the border takes place between the third and sixth day of detention (see the work of CIMADE).
In other words, there is no special need for the maintenance of public order that the length of detention in such proportions should be extended.
In any case, the criticized article reveals a disproportionate violation of individual freedom.
(ii) This infringement of its mission of protection of individual freedom is further characterized by the aune of the last paragraph of § I as proposed by the contested article. It is envisaged, in fact, that in the event of a decision of the judge of freedoms that put an end to the detention of the alien he "is then kept at the disposal of the justice for a period of four hours from the notification of the order to the prosecutor of the Republic".
However, this is a direct obstacle to the principle that, pursuant to Article 66 of the Constitution, when a magistrate of the siege has decided, by a court decision, that a person must be released, he cannot be obstructed, even pending the decision of the judge of appeal.
There is nothing here to justify the extension of the deprivation of liberty to go and come, even though a judicial judge has declared the end of detention. In vain, it would be argued that the need to remain in detention abroad in order to satisfy the possible request for suspensive effect by the public prosecutor in case of appeal. Indeed, nothing in the criticized text established such a link. In any case, it is constitutionally unacceptable that a person released by a court decision may not immediately benefit from his or her recovered freedom.
Certainly, the authors of the referral do not know that you have validated a mechanism with similar consequences (decision of 22 April 1997). But in this case, it was a special appeal and circumstances procedure. Nothing like this in this case, as no reason is required to justify such deprivation of liberty against the decision of a sitting judge.
The paradox of the provision here criticized being that the prosecutor of the Republic can dispense with this additional detention. Thus, it would be up to the Public Prosecutor ' s Office to give full effect to the decisions of the headquarters magistrate to protect individual freedom. It's here, even for four hours, a regression. Admitting it in this situation would open the way for even more offensive measures to freedoms in the future.
(iii) Finally, it appears that the grounds to justify the extension of administrative detention may lead to the deprivation of liberty of a person for acts to which it is foreign.
The proposed § III for the new drafting of Article 21 of the 1945 order allows the judge to extend the detention, for five days, if the removal measure could not be executed "because of the failure to issue travel documents by the consulate of which the person concerned or the absence of means of transport, and that it is established by the representative of the State in the department, or, in short, by Paris, by
It infers that the foreigner will then be held for reasons that are totally external to him. We are far from the motives usually used to justify the extension of detention - public order, destruction of identity documents - and you have admitted.
It will be recalled, in this regard, that article 8 of the Declaration of 1789 enshrines the principle of the personality of sentences, and that thus no one can be punished for acts he has not committed (decision No. 99-411 DC of 16 June 1999).
By approaching the requirements for the protection of individual liberty and the guarantees provided by Article 8 above, it must be assumed that no one can be held in detention or in detention for acts outside his or her will.
Under these conditions, the censorship of this criticized paragraph III can only intervene.
X-2. On the violation of the rights of defence and the right to a fair trial:
You have on several occasions devoted the rights of defence and the right to a fair trial (decision No. 89-260 DC of 28 July 1989).
Several provisions of the criticized article ignore these fundamental rights, which aliens enjoy, like nationals (decision of 13 August 1993 referred to above).
On the one hand, the eighth paragraph of paragraph I states that the foreigner is informed of his or her rights "as soon as possible", an expression that replaces that currently in force: "immediately".
This semantic shift can only be an obstacle to the rights of the defence and is a means of diverting the jurisprudence of the Court of Cassation with regard to the rights of the person placed in administrative detention (Civ. 2nd, 4 March 1999, to appeal No. 98-50.005, Mr. Türe / prefect of the Ardennes; Civ. 2nd, 18 May 2000, for no. 99-50.015, Eure Prefect / Mr. Demir).
On the other hand, the possibility of hearings in special rooms whose location may vary, or by means of audio-visual communication, undermines the rights of defence and the right to a fair trial (paragraphs I and VII of Article 21 taken in its drafting proposed by the law in question).
Of course, the legislator has taken care to clarify that these hearings will be public. But this inevitable editorial precaution cannot, on principle, purge the vice of unconstitutionality resulting from the introduction of materially exceptional jurisdictions. To what extent will the public be able to attend hearings that will be held in difficult places of access or, worse, whose location is likely to vary from one hearing to another?
As for television audiences, it is simply impossible to imagine that the rights of defence will be truly and fully preserved in such conditions. Will the interpreter be alongside the foreigner or elsewhere, will the lawyer be on his side or visible by interposed television. The "loft-justice" cannot be constitutionally admitted, except to deprive of any substance the rights of defence and the right to a fair trial. The equality of arms cannot be preserved if the material conditions of the hearing impede a full contradiction. The conduct of a hearing by audiovisual channels necessarily compels the rights of the defence in their expression. As for the advertising of debates, it is little to say that it will be more than virtual in such material conditions.
It should be recalled that article 6, paragraph I, of the European Convention on Human Rights similarly enshrines the publicity of judicial proceedings as it protects persons against secret justice and constitutes one of the means to preserve confidence in courts and tribunals. This requirement helps to achieve the purpose of this article: the right to a fair trial (CEDH, p. Pretto et alii/Italy, 8 December 1983, Series A, No. 71).
In this regard, it is important to recall that equality before the courts, and thus before the law, is imposed equally between foreigners and nationals (decision of 13 August 1993). It is therefore unacceptable that, with regard to the conditions under which justice is rendered, foreigners do not enjoy the same guarantees as the French. Unless this measure only anticipates future developments in the public service of justice...
No reason derived from public order, the good administration of justice, or exceptional circumstances, in fact, not alleged, can justify such an infringement of the rights of defence. And if such a reason was advanced, the disproportionate character of the measure chosen to satisfy it would also result in the censorship of the criticized provision.
Finally, also violates the rights of defence the limitation of foreign access to the lawyer "in case of force majeure" (paragraph I, paragraph 7). This fundamental right that is also manifested by the right to a human rights defender is not divisible. In addition, one must wonder what this notion of force majeure covers and the competent authority to decide whether or not it is carried out.
These words can only be invalid.
X-3. On the violation of the right to asylum:
Paragraph V, which makes an application for asylum inadmissible during the period of detention if it is formulated more than five days after the notification of foreign rights violates the right of asylum as you so strongly guarantee (decision of 13 August 1993).
Prohibiting the exercise of a fundamental right under a foreclosure of time that is not justified by public order or by any other circumstance may not be accepted.
Censorship can only intervene as well.


XI. - On section 50 of the law


The provisions of this article relating to legal proceedings and access to a lawyer are criticized for the same reasons as those referred to in section 49 of the Act.


XII. - On section 53 of the law


This article provides, on an experimental basis, that the transport of detained foreign nationals in detention centre may be organized by a private person following the conclusion of a public market. People who carry this transport may be armed.
(i) First of all, such a provision fails national sovereignty as guaranteed by Article 3 of the Constitution. You have thus validated a derogatory measure to the law of the public order in respect of the construction of a penitentiary institution after specifying that "are expressly excluded the tasks inherent in the exercise by the State of its sovereignty missions" (Decision 2002-461 DC of 29 August 2002).
In this case, it is a mission of sovereignty, as long as the transportation of persons placed in the hands of justice is concerned.
The fact that this provision is established on an experimental basis cannot be sufficient to make it constitutionally acceptable. Your jurisprudence in the field of legislative experimentation aims to organize the competences of a public institution and not the devolution of a power bound to a function of sovereignty (Decision 93-322 DC of 28 July 1993).
Again, it is a matter of transporting people while their individual freedom and public order are at issue. Only the State can assume such a mission whose delicate character must be emphasized.
(ii) Secondly, this provision threatens individual freedom by causing disproportionate risks to persons who will be transported under these exceptional conditions.
Indeed, the personnel of the attribute companies in these public markets will have weapons. Certainly, there was a procedure for the accreditation and moral control of these employees, as well as appropriate training. It remains that by authorizing the transport of persons placed in the hands of justice by employees of private law the legislator has decided on a measure presenting all the risks to the safeguard of individual freedom and, paradoxically, for public order.
The fact that the supervision of the persons transported remains, according to the letter of the critical article, under the control of the State does not remove anything from the grievance.
The work of the Joint Joint Joint Joint Commission shows that, to justify this weapon port, the comparison was introduced with the actual armed carriers (CMP, report No. 1164 AN, No. 36 S, page 7). We must be surprised at such a reference that tends to assimilate aliens transported to things! From the point of view of public order and the security of people, there is a need to fear the occurrence of incidents. For example, if a person suddenly manifests himself during the transfer or passionately asserts the injustice of his or her situation, can we not fear a defensive reaction and a tragic outburst?
In fact, the use of the criticized measure is certain as long as the legislator has taken care to recall that the State services will be present during these transport. That is to say, in the event of difficulty, it will be up to the public officials responsible for maintaining order, and armed accordingly, to act as it is appropriate.
Under these conditions, it is certain that the measure is disported with regard to the goal of safeguarding public order and individual freedom.
To date, only some of the ultraliberal thuriferaries have preceded the privatization of police forces or military forces. The door is enclosed by this provision, it is important to close it without delay.


XIII. - On section 76 of the law


The legislator has reintroduced a procedure for pre-trial control of the freedom of marriage, giving the public prosecutor the power to oppose marriage.
It is hardly necessary to insist on the violation of the freedom of marriage that you have devoted by censuring a very close provision, not to write similar to that here criticized, on the ground that by subordinating the celebration of marriage to such preconditions these provisions ignore the principle of freedom of marriage which is one of the components of individual freedom" (decision of 13 August 1993).
In this case, it is a good idea to prevent the freedom of marriage. Whether from the point of view of individual freedom or the right to privacy and family, such a procedure may lead to the suspension of the marriage celebration for several months: fifteen days more than one month for the investigation and renewable once.
This regime is, in any event, seriously disproportionate to the potential benefits that the Government could expect for the protection of public order. It is a logic of suspicion and constraint on foreigners, as on the nationals close to them, which clashes our republican tradition.
The same causes that produce the same effects, censorship for the motives you have already consecrated is therefore inevitable.


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(List of signatories: see decision No. 2003-484 DC.)


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