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Decision no. 2014-427 QPC of 14 November 2014

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Mr Mario S. [Extradition of persons who have acquired French nationality]

On 9 September 2014 the Constitutional Council, pursuant to Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality from the Cour de Cassation (criminal chamber, order no. 4895 of 3 September 2014) raised by Mr. Mario S., regarding the compatibility of the first subparagraph of Article 696-4 of the Code of Criminal Procedure with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Code of Criminal Procedure;

Having regard to Law no. 2004-204 of 9 March 2004 adapting the justice system to developments in crime;

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 of the Prime Minister, registered on 1 October 2014;

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

Having heard Jérôme Rousseau Esq., Attorney at the Conseil d'État and the Cour de Cassation, for the applicant, and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 4 November 2014;

Having heard the Rapporteur;

1. Considering that, in the version in force following the enactment of the aforementioned Law of 9 March 2004, subparagraph 1 of Article 696-4 of the Code of Criminal Procedure provides that extradition shall not be granted: "Where the requested person is a French national, this status being assessed with reference to the time when the offence for which extradition is sought was committed";

2. Considering that, according to the applicant, in providing that, for the purposes of applying the rule that France does not extradite its own nationals, the nationality of the person whose extradition is sought is to be assessed with reference to the time when the offence was committed, these provisions create a distinction between French nationals that violates the principle of equality;

3. Considering that the application for a priority preliminary ruling on the issue of constitutionality relates to the phrase ", this status being assessed with reference to the time when the offence for which extradition is sought was committed" included in subparagraph 1 of Article 696-4 of the Code of Criminal Procedure;

4. Considering that, pursuant to Article 6 of the 1789 Declaration of the Rights of Man and the Citizen, the law must be “the same for all, whether it protects or punishes”; that the principle of equality neither prevents the legislator from settling different situations in different ways, nor does it depart from equality in the general interest, provided that in both cases the resulting difference in treatment is directly related to the subject matter of the law providing for the different treatment;

5. Considering that the first subparagraph of Article 696-2 of the Criminal Procedure Code provides: "The French Government may surrender to a foreign government, upon request by the latter, any person present within the territory of the Republic who is not a French national and who is the object of a prosecution launched in the name of the requesting state or has been convicted by its courts"; that Article 696-4 of the Code lists the situations in which extradition is not to be granted; that subparagraph 1 of this Article provides that the French nationality of the person whose extradition is sought will preclude it, and specifies that nationality is to be assessed with reference to the time when the offence for which extradition is sought was committed;

6. Considering that in prohibiting the extradition of French nationals, the legislator granted to such persons the right not to be surrendered to a foreign authority for the purposes of prosecution or in relation to a conviction for a criminal offence; that the difference in treatment in the operation of this protection, depending upon whether or not the person was a French national at the time when the offence for which extradition is sought was committed, is based on a difference in circumstances that is directly related to the object of the law; that the legislator also intended to prevent the usage of rules on the acquisition of nationality in order to avoid extradition; that accordingly, in providing that the nationality of the person whose extradition is sought is to be assessed with reference to the time when the offence was committed, the contested provisions do not violate the principle of equality before the law;

7. Considering that the contested provisions, which do not violate any other right or freedom guaranteed by the Constitution, must be upheld as constitutional,

HELD:

Article 1.– The phrase " , this status being assessed with reference to the time when the offence for which extradition is sought was committed" included in subparagraph 1 of Article 696-4 of the Code of Criminal Procedure 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 of 13 November 2014, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL and Ms Nicole MAESTRACCI.

Announced on 14 November 2014.