quill.gif (3183 bytes) Decision of Aug. 13, 1993, Con. const., 1993 J.O. 11728

Facts: In France the legislation provided that the time necessary for arranging their departure, foreigners who are awaiting expulsion from French territory can be detained in a nonpenal institution prior to judicial approval. This detention lasts for a period of six days, but can be extended for a period of twenty-four hours if the foreigner does not have the proper documents necessary for expulsion and if so ordered by a magistrate. The proposed new legislation, called the "Pasqua Bill", provided that this detention period be extended by seventy-two hours upon the order of the president of the tribunal de grande instance (court of first instance) or a magistrate designated by the tribunal's president.

Complaint: the proposed Law was challenged before the Conseil Constitutionnel (Constitutional Council) on the ground that it deprived the foreigner of constitutional guarantees of individual liberty.

Holding: The Conseil held that the challenged provision was unconstitutional.

Reasoning:   the legislature is at liberty to modify detention measures on the condition that it does not deprive the foreigner of any constitutional guarantees. In the absence of an absolute emergency or serious threat to the public order, the extension, although subject to judicial scrutiny, violated the principle of individual liberty guaranteed by the Constitution.

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