France – Constitutional Council, 1 June 2018, N° 2018-709 Priority Question of Constitutionality (QPC)

Country of Decision:
Country of Applicant:
Date of Decision:
01-06-2018
Citation:
(France) Constitutional Council, 2018-709 Priority question of constitutionality
Court Name:
Constitutional Council
National / Other Legislative Provisions:
France - French Constitution (Articles 61-1
62)
France - Ordinance n° 58-1067 of 7 November 1958 on the legislation governing the Constitutional Council
France - Regulation of 4 February 2010 on the procedure to follow for priority questions of constitutionality before the Constitutional Council
France - Code of Entry and Stay of Foreigners and the Right to Asylum (Article L. 512-1)
France - Law n° 2016-274 of 7 March 2016 regarding the rights of foreigners in France
1789 Declaration on the Rights of the Man and of the Citizen (Article 16)
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Headnote: 

The Constitutional Council decides on the constitutionality of the deadline to appeal against a return order, as applicable to a third-country national being detained, under paragraph 4 of Article L. 512-1 of the Code of Entry and Stay of Foreigners and the Right to Asylum (CESEDA). The Council decides hereby that the deadline proves to be too short- consequently unconstitutional- to effectively exercise the right to remedy in the context of detention.

Facts: 

The Council of State referred a priority question of constitutionality to the Constitutional Council regarding paragraph 4 of the article L. 512-1 of the CESEDA during the proceedings of cases nos 416737, 417314 of 14 March 2018.

The question relates to deadlines applicable to a third-country national wishing to appeal against a return order. More particularly, it relates to the applicability of those deadlines provided in paragraph 3 and mentioned in the context of paragraph 4, dealing with a third-country national in detention and wishing to seek legal and interpretative assistance once notified of an obligation to leave French territory.  

Decision & Reasoning: 

Applicants and interveners argue that the words “and in the deadlines” at paragraph 4 of Article L. 512-1 mentioned above do not guarantee neither the effective exercise of the right to remedy, nor of the rights of defence. They argue that the global deadline of 5 days from the notification of the obligation to leave French territory to the time the judge rules is too short to ensure a third-country national to have access to legal and interpretative assistance, which disregards Article 16 of the 1789 Declaration of the Rights of the Man and of the Citizen.

The Constitutional Council recalls the importance of guaranteeing rights and prohibiting their violation on the basis of Article 16 mentioned above. In view of the deadline provided in paragraph 3 of Article L. 512-1 of the CESEDA, the Constitutional Council notes that it proves to be ‘particularly short to present arguments before the judge and gather evidence’ in the context of paragraph 4 applicable to a third-country national in detention.

The Constitutional Council hence concludes that the purpose of the legislator to prevent administrative detention following detention is not proportional to the guarantee of the right to remedy. Indeed, the administration can notify the third-country national before the end of his detention while postponing the execution of the decision up until the end of his detention.  

Outcome: 

Declaration of unconstitutionality of the words “and in the deadlines” mentioned under paragraph 4 of Article L. 512-1 of the CESEDA.

The Constitutional Council also added that the effects of this unconstitutionality were to intervene on the date of the publication of this decision, under Article 62 of the French Constitution. 

Observations/Comments: