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France - the framework of the constitutional reform to be improved to comply fully with European standards

15/03/2016

Strasbourg, Council of Europe – The Venice Commission published an opinion in which it states that the framework of the current constitutional reform in France could be improved. In particular, any decision to deprive persons of their nationality must fully respect the right to a fair trial and the principle of proportionality.

In the Commission’s opinion, the introduction of a system for the deprivation of nationality or the rights attached to nationality, applying to all French nationals, whether of French origin or naturalised, or mono-, bi- or multinational, does not in itself infringe international standards. Nonetheless, the Commission recommends that the Constitution should specify that deprivation is an “ancillary penalty”, which must be applied by a criminal court on an individual and proportionate basis following a fair trial.

As to the state of emergency, the Venice Commission welcomes the attempt to incorporate it into the Constitution. It recommends, however, that the French Constitution should not only include the possibility of declaring (and renewing) a state of emergency but also outline the formal, material and temporal limits by which it should be circumscribed.

The text of Article 36-1, as adopted at first reading by the French National Assembly, is not incompatible per se with international standards. However, to avert the risk that the constitutional system for a state of emergency will be applied too widely, the Venice Commission recommends that Article 36-1 should be amended to specify that:

• “imminent danger arising from serious breaches of public order” and “events tantamount to a public disaster” must be “such as to potentially threaten the life of the nation” and;
• the civil authorities may take measures to prevent this danger or deal with these events only “insofar as is strictly required by the situation” and with full regard for the rights and freedoms which are not subject to derogation.

The Venice Commission also invites the French authorities to examine the possibility of extensions by parliament of a state of emergency by a qualified majority.

The English version of the opinion to be available soon.
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