Version en anglais - 2017-674 QPC

Decision no. 2017-674 QPC of 1 December 2017 - Mr. Kamel D. - [House arrest for a foreigner subject to being banned from the territory or a deportation order]



THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 20 September 2017 by the Conseil d'État (Decision no. 411774 of that same date), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for Mr. Kamel D. by Mr. Bruno Vinay, Esq., attorney admitted to the Paris bar. It was registered by the General Secretariat of the Constitutional Council under no. 2017-674 QPC. It is related to compliance with the rights and freedoms guaranteed by the Constitution under the last sentence of the eighth subparagraph and under the third sentence of the ninth subparagraph of Article L. 561-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum, in its drafting resulting from the Law no. 2016-274 of 7 March 2016 on the rights of foreigners in France.


In light of the following texts:
- the Constitution;
- Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
- the Code on the Entry and Residence of Foreigners and the Right of Asylum;
- the Criminal Code;
- Law no. 2016-274 of 7 March 2016 relating to the rights of foreigners in France;
- the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;
In light of the following items:
- the observations put forth for the applicant by the firm Fabiani Luc-Thaler Pinatel, Attorney at the Conseil d'État and the Cour de cassation, recorded on 11 October 2017;
- the observations of the Prime Minister, registered on 12 October 2017;
- the intervening observations presented for the association Gisti by the firm Sevaux et Mathonnet, Attorney at the Conseil d'État and the Cour de cassation, recorded on 12 October 2017;
- the intervening observations presented for La Ligue des Droits de l'Homme [the League of Human Rights] by the firm Spinosi and Sureau, Attorney at the Conseil d'État and the Cour de cassation, recorded on 12 October 2017;
- the documents produced and appended to the case file;
Having heard Mr. François Pinatel, Esq., Attorney at the Conseil d'État and the Cour de cassation, for the applicant, Mr. Paul Mathonnet, Esq., Attorney at the Conseil d'État and the Cour de cassation, for the association Gisti, intervening party, Mr. Patrice Spinosi, Esq., Attorney t the Conseil d'État and the Cour de cassation, for the Ligue des Droits de l'Homme [League of Human Rights], intervening party, and Mr. Philippe Blanc, appointed by the Prime Minister, at the public hearing of 22 November 2017;
And having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:


1. Article L. 561-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum, in its drafting resulting from the Law of 7 March 2016 mentioned hereinabove, allowing the administrative authority to place under house arrest a foreigner that is unable to leave the French territory, to return to this individual's country of origin or to another country, until there exists a reasonable prospect of carrying out the expulsion measures that this individual is subject to. The maximum time frame of the house arrest measure is six months, renewable once. Exceptionally, the last sentence of the eighth subparagraph of Article L. 561-1, applicable to foreigners that are to be deported due to a legal order banning them from the territory or a deportation order establishes:
«The term of six months does not apply to the cases mentioned in Section 5° of this Article, or to those mentioned in Articles L. 523-3 to L. 523-5 of this Code.?

2. The third sentence of the ninth subparagraph of that same Article establishes:
«The foreigner subject to a deportation order or a legal or administrative order banning them from all areas of the French territory, no matter where they are, shall be compelled to reside in the location chosen by the administrative authority on the French territory.?
3. The applicant, and the intervening associations, contest these provisions insofar as they do not set a limit on the house arrest term of the foreigner subject to a deportation order or a legal ban from the territory and they do not establish a periodic reassessment of the situation or any effective recourse against the house arrest decision. This would result in an infringement on the freedom to come and go, on the right of respect for private life and on the right to live a normal family life. The intervening associations also contest that this infringes on the right to effective legal remedy. Along with the applicant, they further claim that there is an infringement on the right of respect for private life and on the right to live a normal family life by granting the administration the possibility to change, at its own discretion, the location of the foreigner's house arrest. According to the applicant and the Ligue des droits de l'Homme, due to the lack of sufficiently defined terms for house arrest, the legislature also failed to observe the limits of its competence regarding the conditions related to the freedom to come and go, the right of respect for private life and the right to live a normal family life. The applicant and the intervening associations further claim that, given the indefinite time frame and term of the house arrest established by the contested provisions, the latter infringe on individual freedoms contrary to Article 66 of the Constitution. Finally, the association Gisti contests the provisions insofar asthey infringe on the principle of equality before the law, in the sense that, regarding the time frame of the house arrest, they treat differently the foreigner who is supposed to be deported following a legal ban from entering the French territory or a deportation order, and the foreigner subject to this for other reasons.
- On the merits:
. Regarding the claims of infringement on the freedom to come and go, on the right of respect for private life and on the right to live a normal family life:
4. No principle nor any constitutional rule ensures foreigners general and absolute rights of entry and stay in the French national territory. The conditions for their entry and stay may be restricted by administrative policy measures granting the public authority extended powers and based upon specific rules. It is the legislature's responsibility to ensure harmonization between, on the one hand, safeguarding against attacks on public safety, and on the other hand, respecting the rights and freedoms granted to all those who live on French soil. Among these rights and freedoms is the right to come and go, making up the personal freedoms protected under Articles 2 and 4 of the Declaration of the Rights of Man and the Citizen of 1789, the right of respect for private life protected by Article 2 of this Declaration, and the right to lead a normal family life established in the tenth Subparagraph of the Preamble to the Constitution of 27 October 1946.
5. The last sentence of the eighth subparagraph of Article L. 561-1 of the Code relating to the Entry and Residence of Foreigners and the Right of Asylum allows the administrative authority, without a determined limit, to place under house arrest a foreigner subject to a legal ban from entering the territory or a deportation order, until there exists a reasonable prospect of carrying out the expulsion measures that this individual is subject to. The third sentence of the ninth subparagraph of the same Article also allows this authority to establish, anywhere on the territory, the location for the house arrest of the foreigner in question or those under an administrative ban on entry, no matter where those foreigners are located.
6. Pursuant to Article L. 521-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum, only foreigners whose presence in France constitutes a serious threat to public safety may be subject to a deportation measure. Pursuant to Article 131-30 of the Criminal Code, being banned from the territory, principally or complementary, by law leads to the sentenced individual being deported, depending on the case, following his/her prison or detention term.
7. Firstly, generally, the house arrest measure established in Article L. 561-1 of the Code of the Entry and Residence of Foreigners and the Right of Asylum, is, on the one hand, to guarantee the representation of the foreigner subject to a deportation measure and, on the other hand, to establish the conditions for his/her temporary stay on the French territory, even though there is no legal authorization allowing him/her to stay, while taking into account issues regarding public safety that this stay may cause.
8. By establishing conditions for being placed under house arrest as established in Article L. 561-1 of the Code of the Entry and Residence of Foreigners and the Right of Asylum, with no time frame, for foreigners subject to a deportation order or a ban from the territory, the legislature specifically sought to avoid the free movement on national territory of a person not only deprived of the right to stay, but who has also been found guilty of an infraction or whose presence constitutes a serious threat to public safety. This measure was also motivated, in a dual manner, by the protection of public safety.
9. The legislature has the possibility not to establish a maximum time frame for house arrest in order to allow the administrative authority to exercise control over the foreigner given the threat to public safety that he/she represents or in order to ensure that a legal decision is enforced.
10. On the one hand, a deportation order, in the absence of its repeal, attests to the continuation of the threat to public safety caused by the foreigner. However, if being placed under house arrest after being banned from the French territory may continue to be justified in the spirit of carrying out the sentence that the foreigner faces, the legislature did not establish that beyond a certain time, the administration must justify the particular circumstances for continuing the house arrest to carry out the decision banning this individual from the territory. Therefore, the terms «in Section 5° of this Article? that appear in the last sentence of the eighth subparagraph of Article L. 561-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum disproportionately infringe on the freedom to come and go. Thus, they should be declared unconstitutional.
11. On the other hand, the indefinite term of the house arrest measure extends its severity. Therefore, it is the responsibility of the administrative authority to establish the conditions and location for the house arrest taking into account, under the constraints that they impose on the individual in question, the time spent under this measure and the familial and personal relationships of the latter. Subject to this, the rest of the last sentence of the eighth subparagraph of Article L. 561-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum does not disproportionately infringe on the rights mentioned hereinabove and the claim that they are in violation, regarding these provisions, should thus be set aside.
12. Secondly, on the one hand, given the restrictions that the legislature may bring to the freedom to come and go, to the respect for private life and the right to lead a normal family life for foreigners who do not have a legal right to stay and who are subject to deportation measures and, on the other hand, subject to what is established in the preceding paragraph, for the unlimited house arrest, the powers of the administrative authority to establish the location of the house arrest anywhere on the French territory does not disproportionately infringe on the rights mentioned hereinabove. The claim of their infringement, subject to this, should also be set aside regarding these provisions.
. Regarding the claim of infringement on Article 66 of the Constitution:
13. Pursuant to Article 66 of the Constitution: «No one may be arbitrarily detained. - The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle under the conditions established by the law.? Individual freedom, the protection of which is entrusted to the judicial authorities, cannot be impaired to an extent that is unnecessarily strict. Infringement on this freedom must be appropriate, necessary and proportionate to the objectives sought.
14. Under the first sentence of the ninth subparagraph of Article L. 561-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum, the foreigner under house arrest must periodically appear at the police or gendarmerie services. The contested provisions of the third sentence of that same subparagraph establish that the foreigner subject to a deportation order or an administrative or legal ban on entry may, no matter where this foreigner is located, be required to reside at the location chosen by the administrative authority. Under the last sentence of the same subparagraph, a foreigner who presents a particularly serious threat to public safety may, upon decision of the administrative authority, be accompanied to the house arrest location by the police or gendarmerie services.
15. Firstly, if the house arrest measure might possibly include the requirement to stay at home, its timetable may not be longer than 12 hours per day without this house arrest being regarded as a measure for depriving an individual of their freedoms, contrary to the requirements of Article 66 of the Constitution, insofar as it is not subject to judicial oversight.
16. Secondly, the extension of such a house arrest measure does not have the effect of changing the nature of it or making it akin to a measure for depriving an individual of their freedoms.
17. It follows from the foregoing that, subject to what is established in paragraph 15, both in terms of its purpose and its scope, the house arrest measure established in Article L. 561-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum does not include deprivation of individual liberties as described in Article 66 of the Constitution. Therefore, the claim related to the infringement of this Article should be set aside.
. Regarding the claim of infringement on the right to effective legal recourse:
18. Pursuant to Article 16 of the 1789 Declaration: «A society in which the observance of the law is not assured, nor the separation of powers defined, has no Constitution at all.? This provision guarantees that the individual in question may exercise the right to effective legal recourse.
19. The house arrest order established by the contested provisions may be subject to recourse under the conditions of ordinary law. Specifically, the absence of a decision to renew the house arrest does not preclude the foreigner in question from seeking that the house arrest be lifted and even the re-examination of their situation on this occasion. The individual in question may specifically contest the terms of the house arrest and obtain, depending on the case, a reduction of the severity imposed upon said individual.
20. Consequently, the claim of infringement on the right to effective legal recourse should be set aside.
. Regarding the claim of infringement on the principle of equality:
21. According to Article 6 of the 1789 Declaration, the law "must be the same for all, whether it protects or punishes". The principle of equality before the law does not prevent the legislature from regulating different situations in different ways, nor does it depart from equality for reasons of public interest, provided that in both cases, the resulting difference in treatment is directly related to the objectives of the law establishing it.
22. By requiring foreigners who are subject to a deportation order to an unlimited house arrest measure, the legislature treated differently from other foreigners, persons who, given the seriousness of the threat that their presence poses to public safety, are placed in a different situation. This difference in treatment is related to the purposes of the law. Therefore, the claim of infringement on the principle of equality should be set aside.
23. It follows from the foregoing that, with the exception of the terms «in section 5° of this article? appearing in the last sentence of the eighth subparagraph of Article L. 561-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum and subject to what is established in paragraphs 11, 12 and 15, the contested provisions, which are not undermined by negative incompetence and do not infringe upon any other right or freedom that the Constitution guarantees, should be declared constitutional.
- On the effects of the ruling of unconstitutionality:
24. According to the second Subparagraph of Article 62 of the Constitution: «A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits according to which the effects produced by the provision shall be liable to be challenged". In principle, the declaration of unconstitutionality should benefit the individual who brought up this priority matter, and the provision declared unconstitutional may not be applied in proceedings pending on the date of publication of the decision of the Constitutional Council. However, the provisions of Article 62 of the Constitution reserve for the latter the power both to set the date of repeal and to postpone its effects as well as to reconsider the effects that the provision may have produced before this declaration took effect.
25. The Constitutional Council does not have general discretionary powers of the same nature that Parliament does. It cannot indicate the modifications that must be made in order to remedy the ascertained unconstitutionality. In this case, the immediate removal of the terms «in section 5° of this article? appearing in the last sentence of the eighth subparagraph of Article L. 561-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum would have manifestly excessive consequences. Consequently, the date of repeal of these provisions should be deferred to 30 June 2018.


THE CONSTITUTIONAL COUNCIL RULES:

Article 1. - The terms «in section 5° of this article? appearing in the last sentence of the eighth subparagraph of Article L. 561-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum, in its drafting resulting from the Law no. 2016-274 of 7 March 2016 regarding the rights of foreigners in France are unconstitutional.

Article 2. - The following provisions are constitutional:

- subject to what is established in paragraphs 11 and 15, the rest of the last sentence of the eighth subparagraph of Article L. 561-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum, in its same drafting;
- subject to what is established in paragraphs 12 and 15, the third sentence of the ninth subparagraph of this same Article L. 561-1, in its same drafting;

Article 3. - The declaration of unconstitutionality of this Article 1 shall take effect under the conditions set out in paragraph 25 of this Decision.

Article 4. - This decision shall be published in the Journal official of the French Republic and notified under the conditions provided for in Article 23-11 of the Ordinance of 7 November 1958 referred to herein above.



Deliberated by the Constitutional Council in its session of 30 November 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Dominique LOTTIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 1 December 2017.