Decision no. 2014-439 QPC of 23 January 2015

On 31 October 2014 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 383664 of 31 October 2014) on behalf of Ahmed S., raising the conformity of Article 25(1) and Article 25-1 of the Civil Code 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 Civil Code;

Having regard to Law no. 96-647 of 22 July 1996 on stricter punishment of terrorist offences and attacks against persons vested with public authority or responsible for a public service obligation and laying down provisions on the investigating police, along with decision no. 96-377 DC of the Constitutional Council of 16 July 1996;

Having regard to Law no. 2003-1119 of 26 November 2003 on the control of immigration, stays by foreign nationals in France and nationality;

Having regard to Law no. 2006-64 of 23 January 2006 to combat terrorism and laying down miscellaneous provisions on security and border controls;

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 on behalf of the applicant by Nurettin Meseci Esq., Attorney at the Paris Bar, registered on 24 November and 9 December 2014;

Having regard to the observations in intervention filed on behalf of association "SOS soutien ô sans papiers" [SOS Support Undocumented Workers] by Henri Braun Esq., Attorney at the Paris bar and Nawel Gafsia Esq., Attorney at the Val-de-Marne bar, registered on 24 November 2014;

Having regard to the observations of the Prime Minister, registered on 24 October and 9 December 2014;

Having regard to the request for recusal submitted on behalf of the applicant by Meseci Esq., registered on 12 November 2014;

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

Having heard Meseci Esq. on behalf of the applicant, Braun Esq. on behalf of the intervener association and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 13 January 2015;

Having heard the Rapporteur;

1. Considering that Article 25 of the Civil Code enables the French nationality of a naturalised French national to be revoked by Decree, subject to confirmation by the Conseil d'État, unless the revocation of nationality would render the person stateless; that Article 25(1) of the Civil Code stipulates as one of the grounds for revocation the conviction of the individual "for an act classified as a crime or offence amounting to an attack against the fundamental interests of the Nation or for a crime or offence constituting an act of terrorism";

2. Considering that pursuant to Article 25-1 of the Code: "Revocation shall only occur if the conduct falling under Article 25 of which the person concerned is accused occurred prior to the acquisition of French nationality or within ten years of the date of acquisition.
   "It may only be ordered within ten years of the commission of such acts.
   "If the conduct of which the person concerned is accused falls under Article 25(1), the periods referred to in the two preceding subparagraphs shall be extended to fifteen years";

3. Considering that, according to the applicant, in enabling the French nationality of the perpetrators of acts of terrorism who have been naturalised as French nationals to be revoked, the contested provisions violate the principle of equality, the principles that punishment must be necessary and proportionate and the objective that the law should be accessible and intelligible; that, according to the intervener association, the deprivation of citizenship would also violate the right to respect for private life and the "principle of legal certainty";

4. Considering that the application for a priority preliminary ruling on the issue of constitutionality relates to the phrase "or for a crime or offence constituting an act of terrorism" featured in Article 25(1) and Article 25-1 of the Civil Code;

• THE ADMISSIBILITY OF THE APPLICATION FOR A PRIORITY PRELIMINARY RULING ON THE ISSUE OF CONSTITUTIONALITY:

5. Considering that, according to the combined provisions of Articles 23-2 and 23-4 of the aforementioned Ordinance of 7 November 1958, a provision that has not already been upheld as constitutional in the reasons and operative part of a decision by the Constitutional Council may be referred to the Constitutional Council, unless there has been a change in circumstances; that the phrase "or for a crime or offence constituting an act of terrorism" featured in Article 25(1) of the Civil Code was introduced by the aforementioned Article 12 of the Law of 22 July 1996; that the Constitutional Council specifically examined this provision in recitals 20 to 23 of the aforementioned decision of 16 July 1996; that however, the Constitutional Council did not rule that this provision was constitutional in the operative part of its decision; that the application for a priority preliminary ruling on the issue of constitutionality is therefore admissible;

• THE ARGUMENTS RELATING TO THE TRANSMISSION OF PRELIMINARY REFERENCES TO THE COURT OF JUSTICE OF THE EUROPEAN UNION:

6. Considering that the applicant has requested the Constitutional Council to transmit two preliminary references to the Court of Justice of the European Union concerning the compatibility of the contested provisions with the principles of equality and non-discrimination on the grounds of nationality established by the Charter of Fundamental Rights of the European Union and the Treaty on the Functioning of the European Union;

7. Considering that, on the one hand, a challenge alleging that a legislative provision is incompatible with the commitments of France under international and European law cannot be deemed to be a challenge to their constitutionality; that accordingly it is not for the Constitutional Council, when seized pursuant to Article 61-1 of the Constitution, to examine the compatibility of the contested provisions with the treaties or with European Union law; that the examination of such a challenge and the transmission of those preliminary references fall under the jurisdiction of the ordinary and administrative courts;

8. Considering on the other hand that the assessment of the compatibility of the contested provisions with the rights and freedoms guaranteed by the Constitution does not imply that a prior ruling must be made concerning the interpretation of a provision of EU law;

9. Considering that, accordingly, the arguments concerning the transmission of a preliminary reference to the Court of Justice of the European Union must be rejected;

• THE COMPATIBILITY OF THE CONTESTED PROVISIONS WITH THE RIGHTS AND FREEDOMS GUARANTEED BY THE CONSTITUTION:

. The objection alleging the violation of the principle of equality:

10. Considering that Article 6 of the 1789 Declaration of the Rights of Man and the Citizen provides that 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;

11. Considering that only persons who have acquired French nationality and are also nationals of another country may be deprived of French nationality; that Article 25 of the Civil Code sets out a closed list of grounds for deprivation; that the contested provisions contained in subparagraph 1 of this Article provide that a person who has been convicted or a crime or offence constituting an act of terrorism may be deprived of his or her nationality; that the decision on revocation must be adopted by decree subject to confirmation by the Council of State;

12. Considering that Article 25-1 of the Code specifies the time limits applicable to the revocation of nationality; that the procedure will only be triggered if the conduct of which the person concerned is accused occurred prior to the acquisition of French nationality or within ten years of the date of acquisition; that in addition, it may only be ordered within ten years of the time when the acts in question were committed; that the third subparagraph of this Article extends the two time limits to fifteen years if the conduct of which the person concerned is accused is covered by Article 25(1);

13. Considering that persons who have acquired French nationality and those to whom French nationality was granted at birth are in the same position; that the Constitutional Council held in its decision of 16 July 1996 that "the legislator was able to make provision, taking account of the objective of stepping up the fight against terrorism, that the administrative authorities may be able for a limited period of time to revoke the French nationality of those who have acquired it without the resulting difference in treatment violating the principle of equality";

14. Considering that, on the one hand, since this decision of 16 July 1996 the ability to revoke nationality has been extended insofar as, pursuant to the aforementioned Law of 26 November 2003, revocation may be ordered in relation to events occurring prior to the acquisition of nationality; that this new possibility does not result in an extension of the period during which French nationality may be called into question;

15. Considering that, on the other hand, following this decision of 16 July 1996, the aforementioned Law of 23 January 2006 increased from ten to fifteen years the periods provided for under the first two subparagraphs of Article 25-1 for the offences provided for under Article 25(1); that this fifteen-year period provided for under the first subparagraph of Article 25-1, any extension of which would cause a disproportionate breach of the requirement of equality between persons who have acquired French nationality and those to whom French nationality was granted at birth, only applies in relation to particularly serious offences; that the time limit provided for under the second subparagraph of Article 25-1 is also limited to fifteen years for the offences falling under Article 25(1);

16. Considering that it follows from the above that the objection alleging a violation of the principle of equality must be rejected;

. The objection alleging a violation of the principles that punishment must be necessary and proportional:

17. Considering that pursuant to Article 8 of the 1789 Declaration: "The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offence"; that the principles laid down by this Article apply not only to the penalties issued by the criminal courts but also to any penalty with the nature of a punishment;

18. Considering that Article 61−1 of the Constitution does not grant the Constitutional Council any general power of appreciation and decision making of the same nature as that of Parliament, but solely grants it competence to rule on the compatibility of the legislative provisions placed before it for examination with the rights and freedoms guaranteed under the Constitution; that, whilst the requirement as to whether penalties be associated with offences falls within the power of appreciation of Parliament, it is for the Constitutional Council to ensure that there is no manifest imbalance between the offence and the penalty imposed;

19. Considering that the contested provisions subject the deprivation of nationality to the precondition that the person have been convicted of an act of terrorism; that they cannot have the effect of rendering the person stateless; that having regard to the very specific seriousness inherent within acts of terrorism, the contested provisions establish a sanction, the punitive character of which is not manifestly disproportionate; that accordingly, the objection alleging a violation of the requirements laid down in Article 8 of the 1789 Declaration must be rejected;

. The other objections:

20. Considering that Parliament is at any time at liberty, when ruling on the matters within its competence, to amend earlier legislation or to repeal it and replace it with new legislation as the case may be; that when doing so, it cannot however deprive constitutional requirements of legal guarantees; that in particular, it would violate the guarantee of rights proclaimed by Article 16 of the 1789 Declaration of the Rights of Man and the Citizen if it were to impinge upon acquired rights in a manner not justified by a sufficient reason of general interest;

21. Considering that in stipulating the conditions under which the acquisition of nationality may be called into question, the contested provisions do not encroach upon any acquired rights;

22. Considering that the deprivation of the nationality of a person does not call into question his or her right to a private life; that accordingly, the objection alleging a breach of the right to respect for private life is misconstrued;

23. Considering that the contested provisions, which are not in any case unintelligible, do not violate any other right or freedom guaranteed by the Constitution; that they must be upheld as constitutional,

HELD:

Article 1.- The phrase "or for a crime or offence constituting an act of terrorism" featuring in Article 25(1) and Article 25-1 of the Civil Code 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 22 January 2015, sat on by: Mr Lionel JOSPIN, serving as President, 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 23 January 2015.