The Supreme Court upheld Wednesday the marriage of a homosexual couple Franco-Moroccan, considering that the fundamental freedom to marry the good outweighed a bilateral agreement between France and Morocco. This marriage had already been authorized twice in October 2013 by the High Court and the Court of Appeal of Chambéry, but the public prosecutor had filed an appeal. The prosecution was based on a French-Moroccan bilateral agreement ratified in 1981 on the “status of persons and the family” and “judicial cooperation”. This agreement provides in particular that if Franco-Moroccan wedding each member of the couple must comply with the laws of his country. Or Moroccan law prohibits marriage between persons of the same sex.
The Supreme Court reiterated Wednesday that Article 4 of the agreement provided that the law of one country could be excluded when it was “manifestly incompatible with the public order.” Public policy is a set of rules for the organization of the nation, economy, morality, health, security, public order and the rights and basic freedoms of each individual. Or, stressed the highest court in the French judiciary, freedom to marry is a fundamental right, open to same-sex couples since the law of 17 May 2013. It therefore dismissed the appeal, on the advice Advocate General Jean-Dominique Sarcelet. “It’s a great relief that it’s over because my clients were fed up. They felt a judicial persecution,” said Mr. Didier Besson, board couple.
“Double discrimination “
The appeal is not suspensive and the couple was married in November 2013 in the municipality of Jacob-Bellecombette (Savoy). “I take care of different mixed or same-sex couples who can not even manage to file their marriage file in city hall,” said Mr Besson. For him, “it will make an argument under the town councils who wish to oppose a marriage.”
At the hearing on December 16, Me Pauline Corlay, the board of the Franco family association -maghrébine Ahluna, favorable to quash the decision of the court of appeal, had argued that the law allowing marriage for all was not “sufficiently shared by the French people” to be considered now as “value essential French law. ” It therefore does not necessary, she said, an international agreement. “The opposite solution (to that adopted by the Court of Cassation) would have resulted in double discrimination” based on sexual orientation and nationality, reacted Me Patrice Spinosi, council Defender of Rights.
Eleven countries have concluded with France a convention governing marriage including Algeria, Tunisia, Morocco, Laos, Cambodia, Poland, Bosnia and Herzegovina, Montenegro, Serbia, Kosovo and Slovenia. In a circular dated 29 May 2013, the Minister of Justice, Christiane Taubira, indicated that the law allowing marriage for all could not apply to nationals of these countries, “the agreements with a value above the law.” For me Spinosi, the judgment of the Supreme Court is “the assertion that the bilateral agreement is neutralized by the international public order.”
The decision of the Supreme Court intervenes that a diplomatic crisis affect relations between Morocco and France since the filing of complaints in February 2014, to Moroccan officials for acts of torture. In response, Rabat suspended judicial cooperation with Paris, calling for a thorough review in full. The head of the Moroccan diplomacy announced Tuesday that the Moroccan and French justice ministers were to meet on that “this week.”