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

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.