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Decision no. 2011-217 QPC of 3 FEBRUARY 2012

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Mr Mohammed Alki B. [Offence of illegal entry into and residence in France]

On 23 November 2011 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (first civil chamber, decree no. 1252 of 23 November 11) on behalf of Mr Mohammed Akli B., raising the conformity of Article 621-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 581067 of 7 November 1958 as amended, concerning organic law on the Constitutional Council;

Having regard to the Code on the Entry and Residence of Foreigners and the Right of Asylum;

Having regard to Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations in intervention filed on behalf of the association "SOS soutien ô sans papiers" [SOS Support Undocumented Workers] by Henri Braun Esq., Attorney at the Paris bar and Nawel Gafsia Esq., Attorney at the ValdeMarne bar, registered on 8 December 2011;

Having regard to the observations in intervention filed on behalf of the association, "Groupe d'information et de soutien des immigrés" [Immigrants' Information and Support Group] (GISTI) by Stéphane Maugendre Esq., Attorney at the SeineSaintDenis bar, registered on 13 December 2011;

Having regard to the observations in intervention filed on behalf of the association "Comité InterMouvements Auprès des Evacués" [Inter-Movement Committee for Evacuees] (CIMADE) by Patrick Spinosi Esq., Attorney at the Conseil d'État and the Cour de cassation, registered on 14 December 2011;

Having regard to the observations of the Prime Minister, registered on 15 December 2011 and 3 January 2012;

Having regard to the documents produced and appended to the case files;

Having heard Julien Gautier Esq., Attorney at the HautsdeSeine bar on behalf of the applicant, Braun Esq. on behalf of the association "SOS soutien ô sans papiers", Maugendre Esq. on behalf of GISTI, Spinosi Esq. on behalf of CIMADE and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 24 January 2011;

Having heard the Rapporteur;

1. Considering that article L. 621-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum provides: "Any foreign national who enters into or resides in France in breach of the provisions of Articles L. 2111 and L. 3111 or who has remained in France in excess of the period authorised by visa shall be punished to a term of imprisonment of one year and a fine of € 3,750.

"The court may moreover prohibit a foreign national who has been convicted of the offence from entering into or residing in France for a period of up to three years. The geographical ban shall automatically entail the deportation of the convicted individual, if appropriate upon conclusion of his term of imprisonment";

2. Considering that, according to the applicant and the intervener associations, having regard to Directive 2008/115/EC of 16 December 2008, by punishing to a term of imprisonment any national of a non-EU state who has entered into or resides illegally in France on the sole grounds that he is remaining in the country without a justified reason, the contested provisions violate the principle of the necessary nature of punishment guaranteed under Article 8 of the 1789 Declaration of the Rights of Man and the Citizen;

3. Considering that, on the one hand, a challenge alleging the incompatibility of a legislative provision with the commitments of France under international and European law cannot be deemed to be a challenge to their constitutionality; that accordingly it is not for the Constitutional Council, when seized pursuant to Article 611 of the Constitution, to examine the compatibility of the contested provisions with the treaties or with European Union law; that the examination of such a challenge falls under the jurisdiction or the ordinary and administrative courts;

4. Considering on the other hand that Article 8 of the Declaration of the Rights of Man and the Citizen of 1789 provides: " The law shall provide for such punishments only as are strictly and obviously necessary"; that Article 611 of the Constitution does not grant the Constitutional Council any general power of appreciation and decision making of the same nature as that of Parliament, but solely grants it competence to rule on the compatibility of the legislative provisions placed before it for examination with the rights and freedoms guaranteed under the Constitution; that, whilst the requirement as to whether penalties be associated with offences falls within the power of appreciation of Parliament, it is for the Constitutional Council to ensure that there is no manifest imbalance between the offence and the penalty imposed;

5. Considering that according to the contested provisions, a foreign national who has entered into or who resides in France in breach of the provisions of Articles L. 2111 and L. 3111 of the Code on the Entry and Residence of Foreigners and the Right of Asylum or who has remained in France in excess of the period authorised by visa shall be punished to a term of imprisonment of one year and a fine of € 3,750; that the courts may moreover prohibit a foreign national who has been convicted of the offence from entering into or residing in France for a period of up to three years, and that this territorial ban shall automatically entail the deportation of the convicted individual, if appropriate upon conclusion of his term of imprisonment; that having regard to the nature of the offence for which they have been established, the penalties thereby laid down, which are not manifestly disproportionate, do not violate Article 8 of the 1789 Declaration;

6. Considering that the contested provisions are not contrary to any other right or freedom guaranteed by the Constitution;

HELD :

Article 1. Article L. 6211 of the Code on the Entry and Residence of Foreigners and the Right of Asylum is constitutional.

Article 2. – This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session on 2 February 2012, sat on by: Mr JeanLouis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Ms Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 3 February 2012.