France – Constitutional Council, 1 June 2018, N° 2018-709 Priority Question of Constitutionality (QPC)
| Country of Decision: | France |
| Court name: | Constitutional Council |
| Date of decision: | 01-06-2018 |
| Citation: | (France) Constitutional Council, 2018-709 Priority question of constitutionality |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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.
Subsequent proceedings:
Observations/comments:
Text commentary on Constitutional Council’s decision n° 2018-709, Priority question of constitutionality, 1 June 2018 (available in French only)
Documentary record of Constitutional Council’s decision n° 2018-709, Priority question of constitutionality, 1 June 2018 (available in French only)
This case summary was written by Celia Minh Boyon, LLM student at Quen Mary University, London.