FECL 04 (March 1992):

FRENCH CONSTITUTIONAL COUNCIL DECLARES "TRANSIT ZONES" FOR "UNDESIRABLE ALIENS" UNCONSTITUTIONAL

When the parliament had to adapt a decree from 1945 on the entry of foreigners on French territory to the new obligations resulting from the Schengen II treaty, Minister of Justice Marchand seized this occasion for introducing an amendment which should legalize "post hoc" a legally questionable practice of the border police (Police de l'Air et des Frontières, PAF). Until now, undesirable ill- or undocumented aliens or asylum seekers with "manifestly unfounded" claims were detained in so called "international zones" at the airports or in nearby accommodation centers without any decision of a judge and for up to thirty days. This practice was justified by the contention that the transit zones were international territory outside French jurisdiction. The Constitutional Council's decision comes after vigourous protests from human rights organizations and even the President's wife, Danielle Mitterrand.

Critics of the bill feared that the transit zone practice prevented bona fide refugees, who often lack valid documents, from entering French Territory. Several foreigners had already filed Minister Marchand for "arbitrary deprivation of liberty".

Nonetheless the bill had been approved by the first Chamber of the Parliament, but in the second chamber, the Senate, the socialist senators successfully pressed Prime Minister Edith Cresson to bring the case to the Constitutional Council.

In its decision the Constitutional Council states that, whatever guarantees are provided for in the "Marchand bill", no "intervention of the judiciary authorities" is required in order to hold a person in the "international zone". Although the Constitutional Council did not condemn the principle of holding undesirable foreigners in transit zones altogether it demands that in respect of individual liberty such a measure must be decided by a judge and shall not exceed a "reasonable period".

In a first reaction to the Council's decision the government asserted that the Constitutional Council had not invalidated the principle as such of international zones and regarded the holding of an alien for a period exceeding seven days as being in conformity with the constitution on the basis of a judiciary decision. In the view of the government the Council's decision does not either question the right of the administrative authorities to decide upon whether an alien is to be admitted to French territory or not.

Should this interpretation dominate future practice at the borders, it is more than doubtful, that the Constitutional Council's decision will lead to a material improvment in the situation of "undesirable" foreigners.

As long as transit zones in international airports can be considered as "extralegal" spaces where national law is inapplicable or does not fully apply, a high risk for discriminatory and arbitrary administrative practices will remain.

Nonetheless, the Constitutional Council's decision represents a serious blow to the credibility of Minister Marchand and an encouragement to human rights activists in France, including Madame Mitterrand.

Nicholas Busch