Back to the legal arguments that are favorable or opposés.à this measure the government wants to introduce into the Constitution.
Should we include the deprivation of nationality in the Constitution, and whether to extend it to the French born? Many lawyers, professors of law or constitutional experts have spoken out in the press. With, the vast majority of arguments against the project of the government of François Hollande, and some voices in support. We reviewed them, going as ourselves interview other specialists to complete this picture.
We retained first that the arguments may apply to the latest version of the project, without reference to dual nationality and extended to crimes. The debate thus concerns whether to write into the Constitution the possibility of disqualifying a person “of French citizenship and the rights attached thereto when convicted of a crime or offense constituting an infringement serious in the nation’s life “ .
We then made a distinct place to arguments Whereas the bill concerned in fact that binational, and those considering he addressed to everyone and could result in stateless, this question is still, for the moment, unclear and suspended from a text application. This is an argument also against the text.
THE CASE TO PROMOTE REGISTRATION OF Dech E NATIONALITY OF SITTING IN THE CONSTITUTION
1. To avoid censure by the constitutional Council
this is what motivated the decision François Hollande and the government to include the deprivation of nationality in the Constitution. The State Council, the highest courts of the administrative order, considered in its opinion of 11 December 2015 that it should be enshrined in the supreme text “given the risk of unconstitutionality which would weigh on ordinary legislation “
clearly. the constitutional Council could retoquer such a law, according to the Council State to preserve one of the fundamental principles recognized by the laws of the Republic . At the forefront of these fundamental principles, that some consider “hypothetical” and whose existence is nowhere in stone, would appear impossible to fall from their French nationality by birth. The State Council cautiously ahead however, believing that “assuming that the conditions for recognition of such a principle are met, that does not necessarily enough to recognize it.”
the teacher Sciences Po, Olivier Duhamel, also shares the view of the State Council on the need to include the measure in the Constitution to be sure to avoid censorship the constitutional Council:
“I have little doubt that this requires a constitutional provision. All laws which provided for the forfeiture of nationality, and particularly those of 1915, 1927 and 1938 excluded people born in France. Even in 1915, during the war, a Franco-German born in France siding with Germany could not be deprived of citizenship. The Constitutional Council would consider, no doubt, as one of our fundamental principles that impossibility, since it has been repeatedly recognized by the laws. “
“Once you constitutionnalisez, you give much greater power you put in the shelter of a challenge, protected as a priority issue constitutionality “, also writes Richard Ghevontian, constitutional law professor at the faculty of law and political science of Aix-Marseille, in a blog post, adding not understand ‘s interest “ of the measure, since ” deprivation of nationality is already provided by the civil Code. “
2. in order to establish equality between French dual nationals by birth and by acquisition binational
the forfeiture of nationality, say the government and the State Council, applies today as French who acquired French nationality (Article 25 of the civil Code, but the argument is challenged, as we will see below). In other words, the French-born and binational binational become French by naturalization are not on an equal footing. Professor of Public Law Dominique Rousseau therefore considers that the French post of birth and French by acquisition the same legal regime of forfeiture “would restore the principle of equality” . The law considers today, he argues, than the French who have become by acquisition as “less French than the other” , then they are endowed, like the French of binational birth of another nationality
a view shared by Olivier Duhamel in a forum and in an interview with the World.
“Today the French by birth can not be deprived of citizenship, but one who became French can be. From this perspective, the government’s plan is towards more equality. “
3. Because the symbolism is important
Against detractors that link the symbolic aspect and ineffective for such a measure, Olivier Duhamel replied that the symbolic, especially in a Constitution is important:
“There are many symbolic provisions in a constitution. We will not remove the reference to the “brotherhood ” under the pretext that it has a particularly symbolic. “
The editor of the magazine, however, Powers says he would order the disqualification of nationality for crimes of terrorism, without extending to crimes, otherwise the symbolic significance in would be reduced.
4. to protect from misuse of forfeiture
the deprivation of nationality is today ruled by an administrative decision by decree, subject to the assent of the Council of State. According to the government proposal presented to the Council of Ministers on February 3, it would become “additional sentence imposed by a judicial court” . This, according to Olivier Duhamel, contacted by Slate.fr, would protect the forfeiture “to misuse” .
5. A more visible decline and therefore more dissuasive
While many celebrities have expressed to point according to them the character “no deterrent” of the disqualification of former minister Jean-Pierre Chevènement, to the president of Paris Frédéric Sicard, through judge Marc Trévidic or the president of SOS Racisme, Dominique Sopo, some think otherwise, especially for people who might be induced to lend a hand to terrorists without risking their own life. “There may be extreme cases of youth radicalization way in which it would play a role as a brake ‘ writes Olivier Duhamel in the World.
D especially qu’inscrire forfeiture in the Constitution, it is also making it more visible. “The risk of forfeiture would be more visible and therefore more content, which would be likely to give this penalty a deterrent effect ‘ and ” not just symbolic “, argues Professor .
6. a measure of such gravity needs to be enshrined in the Constitution (in case of forfeiture for all)
” the hypothesis of a possible disqualification for all French even mononationaux, is serious enough, because then creating in the latter case of stateless persons, to require (or justify) a constitutional basis “, argues Olivier Duhamel. Professor Emeritus and Associate Public Law specifies, however, that it is now, “personally” , opposed the extension of deprivation of nationality enshrined in the Constitution:
“The sometimes very excessive political criticism or, more broadly, in principle, and finally the appearance altogether limited to such a review as to its actual consequences with respect to the present state of law, fact, now proved that such a constitutional amendment, which approved by a vast majority of French, struck so deep a minority of them should lead the power to give it up. Introducing into our constitution changes experienced by a significant minority as discrimination, a violation of their rights and / or dignity, is not justified, unless absolutely imperative for the defense of the higher interests of the nation, which n is obviously not the case here, although marginally, such revision could have a bearing in some cases more than symbolic. “
THE CASE FROM REGISTRATION OF REVOCATION IN THE CONSTITUTION
1. a breach of a fundamental principle of law
the argument that deprivation of nationality undermines a fundamental principle of french law (and therefore should be included in the Constitution to avoid censure by the constitutional Council) is used by other lawyers and law experts precisely to argue against this registration. They emphasize the strange logic that there would be to admit that a law violates the humanist tradition of French law and should therefore be precisely for this reason, in the Constitution, the receptacle of the main principles of law.
“They tell us that there is a risk that the forfeiture is anti-republican, and should therefore be put in the Constitution. But if we follow the logic, we should not put it, then! “ exclaims Serge Slama, lecturer in public law at the University Paris Ouest Nanterre La Défense, contacted by Slate.fr .
2. No need to entrench deprivation
constitutionalize forfeiture to avoid the wrath of the constitutional Council? An interpretation with which Jules Lepoutre, Public Law PhD student whose thesis focuses on the study of the relationship between the law of nationality and sovereignty of the State, disagrees. According to him, the Civil Code has already helped to strip French nationality from birth, even if the items for the (23-7 and 23-8) are “somewhat fallen into oblivion” . 523 French were deprived of their citizenship between 1949 and 1967, he says, which include “many French-born” even if they “are not the majority” . There is no need, therefore, to use the weapon of the constitutional revision
A view shared by Dominique Rousseau in a forum to release.
“In its decision 93-321 DC of 20 July 1993, the Constitutional Council refused to qualify the soli juice (jus soli) fundamental principle recognized by the laws of the Republic [...]. The extension of deprivation of nationality dual nationals born French is not contrary to any constitutional principle and can therefore be done by an ordinary law without being censored by the Constitutional Council. “
3. It is not the role of the Constitution
One of the major arguments against the inclusion of the deprivation of nationality in the Constitution, now defended by many celebrities left and right, is that Constititution is not just the place to put that kind measurement. This is what qu’argumente eg the former Minister of Justice and Chairman of the Constitutional Council Robert Badinter in an article for the World:
“It is finally not need to resort to a constitutional revision. It would suffice to Parliament to replace in Article 25 of the Civil Code, the reference to that “which has acquired the status of French ” by “all French ” to delete text distinguish between French by birth and French by nationality acquisition. “
“The Constitution is designed to provide guarantees. Not stigmatizing part of the population “, says Serge Slama, as a collective of many legal scholars who signed an also text published in the daily
“By constitutionalising a measure of punishment, reform is altering the very function of the Constitution, which is supposed to organize the state and guarantee the rights and freedoms of citizens and no enact it -even, punitive measures. “
A view also shared by Jules Lepoutre, where “a Constitution aims to unite the people, not to divide them.” He recalled the two fundamental roles of our Constitution: regulate the power of the rulers and guarantee fundamental rights. Through the Constitution to override the Constitutional Council, “we violate that legal tradition is to frame the power of the rulers and also violates this second tradition, the guarantee of fundamental rights” , since individuals to be deprived along their nationality.
4. a disproportionate sentence
This is also a warning of the Council of State, which, although given the green light to the government to a constitutional revision believes that the deprivation of nationality by the ordinary legislator “could be regarded as excessive and disproportionate infringement” fundamental rights, “which, consequently, would be unconstitutional” .
the principle of proportion is a principle of law that, when you take a penalty, it must be proportionate to the acts. The difficulty is to know … move the cursor. The question arises particularly if the deprivation of nationality is established also for offenses, as is currently the case in the bill proposed by the government.
Here is a example to understand, concerning the crime of criminal association in relation with a terrorist enterprise. Jules Lepoutre cites the case of convicted persons as such after being in relationship with people of Kurdistan Workers’ Party (PKK), set by the European Union on the official list of terrorist organizations-and which, for years, personalities such as Bernard-Henri Lévy, demanding the withdrawal of the list. Now, in the example cited by Jules Lepoutre, “the facts were missing so much gravity they had only suspended sentence” and convicted, says the PhD student, “was exempted from entry in the criminal record of his sentence.”
“A crime can lack seriousness, do not be so serious that it would lead to the same registration record “, Jules Lepoutre argues, evidence that making nationality of the forfeiture possible for such cases is ” disproportionate “ . True, the judge, who, in the current version of the bill, is responsible for disqualification nationality, certainly choose not to apply in such a case. But for the student, allow the Constitution to allow this is “already shocking.”
5. a forfeiture contrary to the Declaration of human rights
This is an argument put before the Council of State itself. According to him, the French nationality is “a human component” guarantee of fundamental rights. These fundamental rights are protected by the Bill of Rights of Man and of the Citizen, and in particular Article 16: “Any society in which the guarantee of rights is not assured, nor the separation of powers, n has no constitution. “
6. the revocation may be retoquée by the ECHR
Even without creating stateless persons, the constitutional law on deprivation of French nationality could be considered by the European Court human rights (ECHR) as a violation of Article 8 of the European Convention on human rights, which gives a right to respect “for his private and family life, his home and his correspondence. ” An article which the Court has in its case law a broad interpretation. This is what Estime Mireille Delmas-Marty, doctor of law and professor at the College de France, in an interview with TV5 Monde.
7. an artificial legal forfeiture
The nationality has two dimensions, a subjective dimension and an objective dimension, says Serge Slama. The subjective dimension reports to the desire to live in a state of feeling. And the objective dimension refers to the actual links an individual to a State such as birth on the territory, culture, education, etc. Revoke the citizenship of someone who has acquired French nationality, is in that “less serious” that to deprive an individual who has always been French, because we consider that the former has less “objective links” with France as the second.
“We’re trying to fall from the nationality of persons who are only French “, warns the specialist. The risk thereby causing an artificial situation, which will no longer be French legal terms people who will only French in their personal history.
8. ineffective forfeiture
the argument of inefficiency can sound policy, but Jules Lepoutre explained that the law is not insensitive to “the effectiveness of the standard” “. This is part of law” Gold title Constitutional law is “government: Nation protection” , he argues. While many voices were raised to specialists say the ineffectiveness of such a law against terrorism, lawyers, he said, were due to join theirs in this movement.
9. the argument of breach of equality (If the text concerns only dual nationals)
Although not with more reference to the impossibility of creating stateless or reference to dual nationality, it is possible that the text they be ultimately and according to changes that will be made during the parliamentary debate, intended.
Manuel Valls said several times that France would not create stateless. But in this case, argue professors and academic rights, the text would result in a breach of equality or discrimination because of their origin. It is an argument made by the Defender Jacques Toubon, who believes in its statement of 23 December that this is not consistent with the spirit of our Republic:
“This project comes to set in stone a higher standard of our basic division of French in two categories, contrary to the spirit and letter of the Constitution, Article 1 st provides: “France is an indivisible, secular, democratic and social. It ensures equality before the law for all citizens without distinction of origin, race or religion “. Citizenship is as indivisible as the Republic. Its fundamental principle is that citizens are equal and that no citizen less citizens than others. “
An argument also defended by the collective of lawyers quoted above, which speaks of “segregationist measures”
“According to established case law of the Constitutional Council, if the principle of equality allows the legislator to treat differently two distinct categories of persons, that principle requires that the difference in treatment thus characterized” either in relation to the object of the law establishing it “. In this case, the reform project introduced a difference of treatment -a manifestly inequality French “mononationaux ” and French dual nationals. This division into two categories of French, had it been made by a regular bill, would thus have to be considered by the Board in the light of the objective of the text, namely the fight against terrorism.
The Constitutional Council thus had to answer the absurd question of how the effectiveness of the fight against terrorism justifies specific sanction, the forfeiture of nationality, binational! These would they be more likely to carry out terrorist acts as “native French ” ? Preposterous, the question is obviously not neutral but found, instead, a desire to stigmatize again and again, and this time the same level of the Constitution, a specific category of French, those whose history is linked in part to former French colonies. [...] And if we recognize that there are two categories of French, it is the French people no longer one and indivisible, still a Republican myth that passes the ace. “
The State Council, however, rejected the argument of a breach of the principle of equality. According to him, “binational are not, under this measure in the same situation as the people who hold only French nationality because deprive the latter of their nationality would stateless make effect” .
as we have seen, Dominique Rousseau believes him that the constitutional law would not create less equality but more of ‘equality. “As for the French and French mononationaux binational, they are in objectively different situations -the first have one nationality, the second two- and treated differently does not infringe the principle of equality” , he says.
10. the argument against statelessness (If the text applies to all)
already examined in a the reasons for which the creation of stateless persons is not legally impossible, but could be retoquée by the European Court of human rights or the Court of justice of the European Union. As explained Mireille Delmas-Marty, statelessness is contrary to the Universal Declaration of Human Rights ( “Everyone has the right to a nationality” , item 15). The UN Covenant on Civil and Political Rights, ratified by France, also considers the latter as a right “non-derogable” , even if “public emergency” .
France signed the Convention on the Reduction of Statelessness, adopted on 30 August 1961. It offers a country that had reservations the possibility of create stateless “if an individual under conditions involving share a lack of loyalty to the Contracting State, [...] had a behavior likely to cause serious prejudice to the essential interests of the State “. But constitutionalise can create stateless persons at a time when worldwide movement, which includes France, is working to reduce their number, appear paradoxical to many lawyers. And is a serious legal argument against it.
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