Keywords COMMISSION national CONSULTATIVE human rights, INTERNATIONAL agreement, Bill, mutual assistance, Morocco JORF No. 0155 July 7, 2015, text no. 92 opinion on the bill authorizing approval of the Protocol to the mutual assistance agreement, CNCDH judiciary in criminal matters between the Government of the French Republic and the Government of the Kingdom of Morocco NOR : CDHX1512302V ELI: not available (plenary Assembly of May 21, 2015 - Adoption: unanimity) 1. The France and the Morocco are bound by the convention to support justice in criminal matters signed on April 18, 2008, authorized for approval by law No. 2010-609 from June 7, 2010 and published by Decree No. 2011-960 16 August 2011, which repealed, in its specific field, the provisions of the Moroccan convention for mutual legal assistance and extradition of 5 October 1957 (1) exequatur. The new agreement regulates various facets of legal cooperation classic as, for example, the content of requests for assistance, their transmission and their execution, etc. The application of this convention, and any form of judicial cooperation between the France and the Morocco, was suspended unilaterally by the Morocco in February 2014 (2).
2. a bill authorizing approval of the additional protocol to the Convention on mutual legal assistance in criminal matters between the Government of the French Republic and the Government of the Kingdom of Morocco has been placed on the office of the National Assembly under the accelerated procedure (3). This Protocol aims to introduce a new article 23 bis to the convention for mutual assistance. An impact study, for the less summary, notes that the Protocol is likely to tighten links with one of our key partners "just stating that this" more sustainable and effective cooperation between the France and the Morocco"comes" in respect for the law and commitments of both Parties "(4)"
3. the CNCDH cannot immediately repeated its firm opposition to the implementation of the accelerated procedure in sensitive materials for rights and freedoms (5). The constitutional reform of 2008 has certainly led to a reduction of parliamentary time devoted to the consideration of bills which, in practice, led the Government to implement the expedited procedure more frequently. This one however does not have a normal functioning of Parliament, therefore it restricts considerably the time for reflection and maturation necessary for democratic debate, and night, in turn, to the quality of the law. This concern for consistency, intelligibility of the law and legal certainty is particularly true for the conduct of international relations. As the CNCDH has pointed out in its opinion of 19 March 2015 on the high-level Brussels conference, a comprehensive human rights impact study should be carried out systematically for any project or proposal for legislation (6). Similarly, referral to the CNCDH should be made in good time to allow informed debate, despite the constraints of the accelerated procedure.
4. the Commission decided to refer to the Bill, considering that it is not only the political considerations, but that it involves the legal issues whose consequences greater than diplomatic bilateral relations between two countries with ties of cooperation close. Despite his character wanted to innocuous (a single article authorizes the approval of an additional protocol that merely himself to add a single item to the Convention on mutual legal assistance of 2008), the Bill has issues legal and judicial matter, in the light of the rules on international law enforcement jurisdiction of laws and jurisdictions French.
5 A respect, the CNCDH particularly wishes to recall its studies and opinions in international criminal justice, especially its opinion of 23 October 2012 on the assessment of the International Criminal Court, which specify its policy positions and recommendations on universal jurisdiction (7). She regretted that the Government answers to its concerns and recommendations remain far from expectations about the transposition into french law of the Rome Statute (8). The CNCDH also recalls the converging recommendations on the subject of oversight bodies of treaties relating to the rights of man, as the Committee against torture in 2010 (9) and the Committee on enforced disappearances in 2013 (10).
6. in addition and above all, if the CNCDH gladly recognizes that Moroccan cooperation is particularly important, especially in the fight against terrorism, she recalled that this agreement cannot come at the expense of respect for the rights and constitutional freedoms and other international commitments made by France, as they continue a strictly repressive object or protection of human rights. As well, the additional protocol having been signed, on February 6, 2015, by the France and Morocco, it is feared that its ratification by Parliament seen as a mere formality, and it all the more that the debate relates to a legal question extremely technical.
7. the Bill introduced in the convention of 2008, following an item 23 entitled "Information for the purpose of prosecution" self-help and before a 24 article titled "Spontaneous exchange of information", a new article 23 bis entitled "Application of international conventions" and consisting of four paragraphs. His imprecise and unclear writing shows that he is in reality a sui generis Protocol, whose implementation will lead to circumvent the traditional criminal jurisdiction rules under both internal law law international (11). It appears to the CNCDH that through an amendment to a bilateral treaty, both States intend to set a regime sui generis of mutual legal assistance, aiming to review indirectly legal obligations established by multilateral agreements. Without mentioning in abstracto the technical question of the hierarchy of international commitments, it should be recalled that, as stated by the International Court of justice in its opinion of 28 May 1951 on reservations to the genocide convention: "can be considered a recognized principle that any multilateral convention is the fruit of an agreement freely concluded on its clauses and that accordingly it cannot belong to any of the Contracting Parties to destroy or compromise by unilateral decisions or specific agreements, which is the goal and the purpose of the convention "(12).
8. for the review of the Protocol, the CNCDH will make a number of observations following the order of the new stipulations and placing of the single point of view of the obligations of the France.
I. - The title of article 23 bis 9. Of immediately, the CNCDH not fail to meet the unusual character within bilateral or multilateral on mutual legal assistance of title agreements: "Application of international conventions". Increasingly, the Protocol does not specify what are these international conventions: conventions whose purpose is specifically repressive, whether to criminalise conduct or cooperate in judicial terms, of the conventions whose purpose is general, the conventions for the protection of human rights? And even multilateral, bilateral agreements? etc. Impact assessment refers "to the good implementation of agreements"between the France and Morocco,"such as the convention of United Nations against torture and other cruel treatment and punishment, inhuman treatment or punishment adopted at New York on 10 December 1984 or the convention of the UN against transnational organized crime, adopted in New York on 15 November 2000" (13). For the CNCDH, this indicative list is not clarified the scope of the Protocol. It also contains serious flaws such as the international convention for the protection of all persons against enforced disappearances to which the France and the Morocco are parties, or the many international conventions on the criminalization of terrorism. It should also wonder about the implementation of the conventions which bind only one of the two partners, starting with the obligations imposed on the France. the Rome Statute of the International Criminal Court.
10. in view of the foregoing, the vagueness of the title of the article 23 bis, as the blur of its scope and the indeterminacy of its scope, is, for the CNCDH, contrary in itself to the quality requirements of the law, especially in law enforcement, and more broadly of legality and legal certainty, guaranteed at both constitutional and European levels.
II. - paragraph 1 11. The first paragraph reads:
"As part of their respective commitments and to contribute to the implementation of the international conventions that bind them, the Parties are working to foster more effective cooperation as well as all exchanges between judicial authorities for the purpose of good conduct of the proceedings, including when the allegations were committed on the territory of the other party." These new stipulations imposed to States parties a general obligation to exchange information, but without setting the technical modalities, namely diplomacy or a simplified channel (14). In addition, the reference to the "allegations" seems to evoke at first sight an "information for the purpose of prosecution" in the technical sense of article 23 (15), even while:-paragraph 2 provides an enhanced information obligation (see below);
-paragraph 3 aiming "discharge" of the procedure, can be interpreted as organizing a true divestiture of the french judge (see below) (16) and not an "information for the purpose of prosecution" as suggested by the impact study (17).
However, in reality, "Facts reported" "means no doubt all the criminally sanctioned facts" doors to the knowledge "of the French authorities by a victim.
In the light of the foregoing, the CNCDH cannot but regret this lack of precision as well as clarity, which is detrimental to the quality of the text.
III - 2 12 paragraph. In the situation referred to in the first paragraph, namely offences committed on the territory of one of the two States parties, the second paragraph provides that "each party informed immediately the other part of the procedures for criminally punishable facts in the commission of which the nationals of the latter are likely to see their liability". These stipulations are spending an obligation reinforced information on the responsibility of States parties (and not directly of French and Moroccan judicial authorities), while imposing the immediacy of deliverance (18). However, on the one hand, the obligation of information here is distinct from that of "denunciation" improperly referred to in the previous article, which makes difficult the understanding of these two paragraphs. On the other hand, would it be a simple obligation to provide information, as the CNCDH thinks, it would be open to criticism. First, the CNCDH regret the vagueness of the concept of immediacy and is surprised that, paradoxically, the transmission of this information is through diplomatic channels (from part to part and not judicial authority to judicial authority) heavy and so slow. Secondly, this obligation to provide information violates the independence of the judiciary and the effectiveness of the investigation, outside of any procedural guarantees. A risk of manipulation of evidence prejudicial to the respondent is not to exclude (destruction of existing evidence, creating false evidence) (19). Thirdly, this obligation to provide information may be, in sensitive cases, prejudicial to victims or witnesses facts, therefore risks of pressure or intimidation against them are far from being non-existent. Fourthly and finally, the immediacy of the information inevitably led to the suspension of the French procedure pending the response of the Moroccan authorities (20).
IV - 3 13 paragraph. This paragraph includes four paragraphs which the Commission considers that some of them faced serious difficulties of interpretation the judges responsible for their application.
A. - The first paragraph 14. The first paragraph (21) is the hypothesis of a proceeding to the French judicial authority by a person not having French nationality - so foreign without being necessarily Moroccan - for offences committed at the Morocco by a Moroccan. In this case, the French judicial authority before it collects, "as soon as possible" to the Moroccan judicial authority, "its observations or information".
15. on the one hand, the CNCDH intends to clarify that, in relation to the judicial authority in French of an offence committed abroad by a foreigner on a foreign victim, in the absence of any connection with the France, the only jurisdiction exercised by the courts and laws French is here implicitly but necessarily the universal jurisdiction provided for by articles 689-1 and following of the code of criminal procedure on the basis of multilateral law enforcement conventions ratified by the France. The offences involved are deemed extremely serious crimes, for example acts of torture, the terrorist crimes or disappearances. In order to avoid the impunity of their alleged in the State on whose territory they were committed, some international conventions to combat these crimes require that any person located in the territory of a State party to the convention and suspected of having committed such an act be challenged by the authority of this State, pursued and judged according to the criminal law.
16. on the other hand, it is always implicitly but inevitably the new text, that the procedure conducted in France is called to be paralyzed in anticipation of the "information and observations" of the authority Moroccan judiciary. The Commission cannot, therefore, once again, deplore the vagueness of the new stipulations.
B. - The second paragraph 17. It provides that in this assumption (the one provided for in the previous paragraph), the Moroccan judicial authorities "takes all the measures it deems appropriate including as appropriate the opening of proceedings". In this respect, the CNCDH recalled that a procedure is however already initiated in France. It was therefore desirable that the provisions more clearly contemplate the articulation of the two procedures (the Moroccan and French), as well as the preservation of the procedural guarantees of the parties.
C. - The third paragraph 18. The third paragraph, which illuminates and complements the previous one, provides that "in view of the elements or information received", the French judicial authorities seized "determines the follow-up procedure, primarily his dismissal" in the Moroccan judiciary or its "closing". If the words have a meaning, the verb "determine" means no not the simple consideration of the follow-up to the process, but making a decision on these suites. In other words, unless dismissed by the Prosecutor's office (article 40, paragraph 1 of the code of criminal procedure), or refusal to inform ab initio by the investigating judge (in the cases provided by article 86, paragraph 4, of the code of criminal procedure (22), the French judicial authority is requested to "priority"refer the case back to the judicial authority Moroccan, and not simply to him denounce the facts for the purpose of prosecution) as suggested by the environmental assessment, in fact devoid of normative value (23). Besides, if it was technically an information for the purpose of prosecution under article 23, the new provisions will refereraient this latter text and its terminology ("denunciation", not"reference").
For all of these reasons, the CNCDH questioned the terms technical and procedural of which is similar to a divestiture noting that:-the code of criminal procedure, as currently drafted, does not assumption of reference for a foreign judge (24);
-the impact assessment however expressly states that the adoption of the Protocol "does imply no adaptation of the legislative provisions or national regulations" (25).
In all the cases, the priority of "discharge" or "closing" seems at first reading meet of the discretion of the french magistrate. The CNCDH, still think that the latter will estimate in practice bound, as soon as the conditions for application of the Protocol will be met (26).
19. in addition, regardless of these technical points, the CNCDH questioned the scope at the bottom of this text, noting any at the outset that it is considerable. Indeed, universal jurisdiction imposed on the France, notably by treaties such as the Convention against torture and other punishments or cruel treatment, or punishment of 10 December 1984, acts whose prohibition is mandatory under international law, should fade in front of Moroccan territorial jurisdiction, jurisdiction classic, reactivated here by a bilateral agreement, then even as universal jurisdiction was specifically intended to avoid impunity too often assured by the exclusive exercise of the territorial jurisdiction, particularly when the alleged perpetrator of the facts has acted on behalf of or under the guise of the State.
20. better yet, suffice that bilateral agreements of this type are increasing gradually to completely gut the Convention against torture of 1984 and beyond, all the multilateral conventions providing for universal jurisdiction to which the France is party. In addition, in addition the ripple effect that would produce the French attitude on that of its partners. However it is unclear how the France could refuse to other partners preferred plan that would benefit the Morocco. For the CNCDH, approval of the French-Moroccan protocol therefore would inevitably lead to impede an effective combat against impunity of the authors of those deemed the most serious crimes.
21. in addition, should be also considered the specific qualification of the terrorist crime, which she also obeys the French universal jurisdiction. Under french positive law, a Moroccan national suspected of a terrorist attack at the Morocco causing injury victims Moroccan if he is arrested in France, may be prosecuted and tried by a French court in application of French jurisdiction, substantive criminal law and procedure. In the hypothesis where the additional protocol would be approved, this individual must primarily be handed over and tried in the Morocco. This regard, the national Council of the Moroccan human rights has recently recalled that the consecration of the fair trial guarantees, access to justice and the independence of the judiciary, has become a major challenge for Morocco (27). He also noted the persistence of acts of torture and the existence of treatment inhuman and degrading treatment, including with respect to persons deprived of liberty (28). Added to that the pronouncement of the death penalty, if it is impossible in France is still possible in Morocco, only the execution of the sentence subject to a de facto moratorium (29).
22 total for the CNCDH, where the given preference to the Moroccan justice can make fear impunity for the perpetrator of acts of torture, therefore a miscarriage of justice for the victims, on the other hand, terrorism, the erasure of French justice can do fear a risk of violation of the right to a trial fair lato sensu of prosecuted person. This last finding weakens, under European law, the "reference" provided for in the additional protocol, as the European Convention on human rights protects those who are under the jurisdiction of France, including those who are handed over by its authorities to those of a third State, for there be judged under conditions that may constitute a violation of a right protected by its provisions (30).
As the victim of such crimes, it is, for the CNCDH, certainly losing, in law, as she is denied all the guarantees attached to his quality of prosecution by the french criminal procedure code (31), quality putting a game a civil right guaranteed by article 6 of the European Convention on human rights (32) but also, in fact, as she is forced to move to the Morocco to the effective defence of its interests during the procedure and during the trial.
The CNCDH is concerned about the absence of any recourse available to this victim against the decision of "reference", what constitutes a potential breach of article 16 of the Declaration of 1789, such as interpreted by the Constitutional Council (33), and article 13 of the European Convention on human rights.
D. - The fourth paragraph 23. The fourth and last paragraph of this paragraph 3 (34), seems to translate the fears of the whole of article 23 bis by instituting a safety valve to the waiver of the exercise, by the French judicial authorities, of universal jurisdiction. It provides that: "in the absence of response or in the case of inertia" Moroccan authority, the French judicial authority seised shall continue the proceedings on the basis of universal jurisdiction raised by the already mentioned conventions. For the CNCDH, this valve risk practice to have any effectiveness, as it is difficult to imagine the lack of response or the inertia of the Moroccan authorities in the case of a procedure initiated in France the head of torture or terrorism, given the extreme gravity of such facts (35). Finally, it results in hollow of this last paragraph that the conduct of the procedure in France is secondary, as "discharge" or the "fence" is a priority (see above).
V. - paragraph 4 24. The provisions of paragraph 4 are thus written: "the provisions of paragraph 3 of this article apply to individuals having the nationality of either party". They are intended to extend the scope of the previous paragraph (mainly the "removal" of the french judge) in ambiguous terms, out of universal jurisdiction, two readings of the text seeming permitted, affecting significantly its intelligibility.
-The restrictive reading of paragraph 4 25. The first restrictive, which is that adopted by the Commission, the expression "individuals possessing the nationality of either party" echoing the expression "proceedings (...) by a person who does not have citizenship "(paragraph 3), this"individual"can only be a victim." And facts committed for example at the Morocco by a Moroccan and of course provided for by international conventions (conventions which ignores the object) (36), paragraph 4 necessarily means a Moroccan victim. It is more then French universal jurisdiction which is discarded in favor of Moroccan territorial jurisdiction, but passive personal competence attached to the French nationality of the victim of the facts. Devoid of international conventional base such as universal jurisdiction, it is provided for in article 113-7 of the penal code: "the criminal law is applicable to any crime as well as any crime punishable by imprisonment, committed by a French or a foreign national when the victim is a French national at the time of the offence." In this case, the prosecution in France is more conditioned by article 113-8 of the penal code to a "motion of the public prosecutor" itself "preceded by a complaint of the victim or of those entitled under him or an official denunciation by the authority of the country where the offence was committed".
26 of course, as acknowledged by the CNCDH, this competence applicable to all crimes not covered by the French universal jurisdiction, i.e. the majority of them, and the offenses imprisonment, statement not an international obligation, but the responsibility of France against its own citizens, that their dual citizenship may deprive them of the protection of French for justice in particular, of the crimes committed against them abroad. Also, estimated the CNCDH that the legal and judicial Moroccan victim situation is less favourable than that of the victim of exclusively French nationality, for the reasons already stated (37). However, as soon as a binational remains, under french law, a citizen like any other, with the same rights and the same obligations (38), french paragraph 4 creates a discrimination at the expense of the civil party binational, potentially constitute a violation of articles 6 and 14 of the Convention rights of man, that would not fail to condemn the Strasbourg Court.
B. - The extensive reading of paragraph 4 27. The hearings led to the CNCDH showed he can be given a reading of paragraph 4, whereby the expression "individuals possessing the nationality of either party" would designate either the author or victim of the facts (39) criminally sanctioned by an international convention. Accordingly, it would be not only the rules relating to passive personal competence, but also those related to active personal jurisdiction, which ceded him not before Moroccan jurisdiction (article 113-6 of the penal code (40) and, with regard to estoppel in the above-mentioned public action, article 113-8 of the penal code).
This way, the fears of a breakdown of equality between a French who committed a crime in the Morocco and one bi-national French-Moroccan who committed the same offence in the Morocco are real. For the CNCDH, the questioning of the French rules of enforcement jurisdiction is in contradiction with sayings of the impact study which emphasizes that the adoption of the additional protocol is done "in accordance with domestic law" french (41).
In conclusion 28. For all of the reasons examined, the CNCDH expressed opposition committed to the adoption of the bill authorizing approval of the additional protocol in the State, therefore it leads to change number of French international rules of jurisdiction repressive in the relations between the France and the Morocco. The CNCDH emphasis on the fact that the France is bound by the United Nations Convention of 1984 requiring the establishment of a universal jurisdiction for crimes of torture, in order to prevent the impunity of perpetrators. The CNCDH, the France cannot adopt a bilateral agreement from defeat the purpose and object of this agreement.
Summary of the recommendations of the CNCDH recommendation 1: the CNCDH recommended the French authorities do not call into question the legal order that French diplomacy has contributed to develop within a multilateral framework, in order to combat impunity and to strengthen international criminal justice.
Recommendation No. 2: the Commission recommends that Moroccan cooperation more necessary than ever, be based on the respect for the rule of law and the independence of the judiciary in both countries, by strengthening the contribution of national institutions of the rights of man and of the organs of civil society, including the media, in an exemplary relationship.
Recommendation No. 3: the CNCDH accordingly, recommends that in the State bill authorizing approval of the additional protocol to the Convention on mutual legal assistance in criminal matters between the Government of the French Republic and the Government of the Kingdom of the Morocco be withdrawn or rejected.
(1) c. Cambon, report No. 476 made on behalf of the Committee on Foreign Affairs (...) on the Bill (...) allowing the approval of the Convention on mutual legal assistance in criminal matters between the Government of the French Republic and the Government of the Kingdom of Morocco, Senate may 19, 2010. (2) the suspension following several diplomatic incidents, has been touted as a reaction to the Moroccan authorities for crimes of torture complaints filed by four victims, before French justice in February 2014. Complaints included the head of the branch of the Moroccan, present homeland on the french territory at the time where he was summoned for a hearing by a french magistrate. (3) Bill No. 2725 authorizing approval of the additional protocol to the Convention on mutual legal assistance in criminal matters between the Government of the French Republic and the Government of the Kingdom of Morocco, recorded at the Presidency of the National Assembly on April 15, 2015. (4) impact study, p. 1. (5) in this sense CNCDH April 15, 2010, advice on the development of laws, online: www.cncdh.fr, paragraphs 3-9. (6) CNCDH March 19, 2015, opinion on the conference of Brussels on the implementation of the European Convention of the rights of man and the execution of judgments of the European Court of rights of man, JORF No. 0073 on 27 March 2015, text no. 78, § 19. (7) CNCDH October 23, 2012, the International Criminal Court reviews, online: www.cncdh.fr, paragraph 10. (8) the CNCDH was surprised the submission to Parliament of the additional protocol in expedited procedure and without any justification, while she claimed, repeatedly and without success, the inscription on the agenda of the National Assembly of the amendment of the Act of August 9, 2010 with adaptation of the Rome Statute into domestic law. (9) CAT/C/FRA/CO/4-6. (10) CDs/C/FRA/CO/1 and Add.1. See also sec/7/C/2. (11) for more details on these issues, see A. Huet and R. Koering-Joulin, international criminal law, 3rd ed., PUF, 2005. D. discarded, international criminal law, 2nd ed., Dalloz 2014. (12) ICJ on May 28, 1951, Rec.1951, p. 21, quoted by Alain Pellet in his commentary on the decision of the Council of State on 23 December 2011, Kandyrine de Brito Paiva, no. 303678, in: A. Pellet and A. Miron, the big decisions of the courts of France of public international law, Dalloz 2015. (13) impact study, p. 2. (14) d. Rebut, hearing of 6 may 2015. (15) has this connection, it should be recalled that, legally, the denunciation is the Act by which a State request to another State to pursue criminal or criminal facts. (16) see Cass. Crim. June 8, 2005, Bulletin No. 174, which specifies that an information is not a divestment under the European Convention on mutual legal assistance in criminal matters of 20 April 1959. (17) impact study, p. 3 (footnote on page no. 6). (18) d. Rebut, hearing of 6 may 2015. (19) in the field of mutual legal assistance, there is always the safeguard clause found in article 3 of the Moroccan Convention, which allows a refusal of mutual assistance, "If the requested Party considers that execution of the request is likely to undermine the sovereignty, security, public order or other essential interests of the country". As the France reminded the International Court of justice, the immediate communication of confidential parts of a trial record cannot call into question the effectiveness of the investigation (see International Court of justice judgment of June 4, 2008, Djibouti v. France (case black), Rec, p. 174). (20) in this sense D. scrapped, hearing of 6 may 2015. (21) "with regard to proceedings with the judicial authority of a party by a person who has no nationality and for offences committed in the territory of the other party by one of its nationals, the judicial authority before it collects as soon as possible to the judiciary from the other party its observations or information". (22) article 86, paragraph 4, of the CPC: "the Prosecutor of the Republic cannot grasp the investigative judge of requisitions to not inform if, for causes affecting public action itself, the facts cannot legally have a Chase or, assuming these facts demonstrated, they can admit no penalization." The public prosecutor can also take requisitions of dismissal where it is established clearly, as appropriate in the light of the investigations which have been carried out following the filing of the complaint or pursuant to paragraph 3, that the facts reported by the civil party had not been committed. Where the investigating judge goes further, he must rule by a reasoned order "." (23) impact study, p. 3. (24) comp. items 627 - 4 and following of the CPC related to the arrest and delivery of people claimed by the International Criminal Court. (25) impact study, p. 2. (26) in this sense D. scrapped, hearing of 6 may 2015. (27) national human rights Council, report presented by the president of the national Council of human rights before both houses of Parliament, on Monday June 16, 2014, p. 23. C. Cambon, report No. 476, op. cit., p. 8: the European Commission points out that, in Morocco, progress needs to be made to achieve a genuine rule of law and protection of the effective citizens. Are notably denounced the corruption of the judicial system and the status of the Moroccan prisons. (28) national Council of the human rights, report presented by the President of the national Council of human rights before both houses of Parliament, op. cit., pp. 23, 29-30. (29) http://www.abolition.fr/fr/pays/maroc. (30) the ECtHR 7 July 1989, Soering c. United Kingdom, req. No. 14038/88. (31) for more details, see G. Giudicelli-Delage and C. Lee (ed.), the victim the criminal scene in Europe, PUF, 2008. (32) see for example ECtHR November 21, 1995, Acquaviva c. France, req. No. 19248/91. (33) see decision of the Constitutional Council of November 4, 2010, no. 2010-614 DC. (34) "in the absence of response or in case of inertia on the other part, the judicial authority seised shall continue the proceedings". (35) it is regrettable that the text makes no reference to the criteria demonstrating the lack of will or ability of the State (comp. article 17 of the Rome Statute). (36) see above paragraphs 9-10. (37) see supra paragraph 22. (38) article 17, paragraph 1, of the European Convention on nationality of the Council of Europe, dated November 6, 1997: "nationals of a State party, with another nationality must have, in the territory of that State party in which they reside, the same rights and duties as other nationals of that State party". (39) see D. scrapped, hearing of 6 may 2015. (40) article 113-6 of the penal code: "French criminal law is applicable to any crime committed by a French outside the territory of the Republic. It is applicable to offences committed by the French out of the territory of the Republic if the facts are punished by the legislation of the country where they were committed. It is applicable to violations of the provisions of Regulation (EC) No. 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain provisions of the legislation in the field of transport by road, committed in another EU Member State European and observed in France, subject to the provisions of article 692 of the code of criminal procedure or the justification of an administrative penalty which has been performed or is no longer be implemented. Use is made of this article even if the defendant would have acquired French citizenship after the fact which is imputed to him "." (41) impact study, p. 1.