Wednesday, September 25, 2013

THE FREEDOM TO COME AND GO

The freedom to come and go

The freedom to come and go is a component of individual freedom. It is inherent in the human person to move, park, stay part of its vital functions.
Able to move freely without constraints and without authorization of state power is a privilege of democratic societies.The free movement of persons is now a cornerstone of European integration. Its exercise must be reconciled with the need to preserve public order.
I) Sources of freedom to come and go
Sources of law were joined by international treaties and Community law.
A) Internal sources:
The sources of law are first constitutional, by its decision of 12 July 1979 the Constitutional Council recognized the freedom to come and go a constitutional value.
The freedom to come and go as a constitutional value, it means that this principle is part of the fundamental rights protected by the constitutional bloc.
This freedom relates to Article 4 of the Declaration of the Rights of Man and of the Citizen of 1789, which enshrines the principle of freedom.
Freedom of movement is guaranteed by Article 66 of the Constitution of 4 October 1958 the exclusive jurisdiction of the courts.
Legislative sources allow the realization of this principle, it is for the legislature to clarify the implementation of the freedom to come and go and to ensure reconciliation between the exercise of the constitutionally guaranteed freedom and safeguard other rights and constitutional principles such as the prevention of public order and the search for perpetrators. The laws involved in organizing the freedom to come and go must respect this constitutional imperative.
The task of the legislator is to intervene only when that freedom conflicts with another right, another freedom.
The legislative intervention can be helpful to promote the exercise of this freedom by requiring certain behaviors such as the requirement for public places to provide specific access facilities for people with disabilities.
Regulatory sources are normative acts issued by the executive, they were common in the past due to the lack of control of constitutionality and compatibility of legislation. Until 1958, the constitutionality of laws do not exist in France.
As a result, a law that violated the principle of freedom of movement could not be questioned. Today they are less important to the extent that they can only specify the legislation surrounding this freedom.
Regulatory acts are an extension of the legal prescriptions organizing the freedom to come and go.
B) International sources:
Freedom of movement is enshrined in several international instruments duly ratified by France.
The primary source for international agreements by which States undertake to respect through their regulatory freedom to come and go.
The second category of international sources for international texts regional and especially European texts.
Their peculiarity lies in their direct effect: the individual can rely directly before the national court as he would for a standard domestic law. Several texts can be cited as Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms or Article 2 of the Protocol of 16 September 1963 which recognizes the freedom of movement and residence.
The European Union was also present in the consecration of the freedom to come and go. The principle of freedom of movement is the basis for the construction of the Common Market as it has been asked since the Treaty of Rome.
The Treaty of Rome of 25 March 1957 establishing the European Community recognized among the great freedoms, the free movement of persons and freedom of establishment, which represents the core of the freedom to come and go.
This same treaty recognized the right of every citizen of the Union to move and reside freely in the Member States.These provisions provide a framework for the protection of the freedom to come and go. The Schengen Agreements remove border controls within the community.
II) The manifestations of the freedom to come and go
A) The restriction on the freedom to come and go
Freedom includes a number of restrictions which justifications are sometimes legitimate and sometimes others are more questionable. For French citizens, freedom to come and go in the country may be subject to restrictions not strictly justified by the requirements of maintaining public order. Any measure of general police and absolute is considered illegal.
Meets these criteria, for example a measure adopted in the name of child protection, merely set curfews banning in certain areas and at certain times in the night traffic of minors (State Council Order interim, 27 July 2001).
Legal research or prevention of public order justify such restrictions on the freedom to come and go by the operations of identity verification.
It is, for example, restrictions on the freedom to come and go in case of lawful detention (imprisonment able to banishment; judicial review).
Also constitute a restriction on the freedom to come and go, the police measures taken for the prevention or suppression of disruption in public order. These measures of administrative police or police are characterized by the identity checks.
If such controls were admitted by the Constitutional Court, however, they were supervised in that the practice of identity checks and widespread discretionary was convicted.
For example, the law on the installation of video surveillance systems on public roads is confirmed. Although this type of means is authorized by the legislature, installation should not be based on a tacit approval of the administrative authority.
In the European context, the removal of border controls does not prevent Member States to apply to anyone entering the country to prove his identity and nationality under penalty of criminal sanction states.
The granting of the passport can be attached to a form of restriction on the freedom to come and go. The implementation of freedom of movement requires the issuance of a title that allows the movement outside the territory.
B) The restrictions on freedom of movement of foreign
The situation of foreigners is much more severe than the national. All states implement an immigration policy to control entry and exit of foreigners in their country. The power to grant or refuse a visa is a sovereign prerogative of the state.
The alien must prove that he has the livelihoods and shelter that has a ticket back. The visa allows you to stay in the country for a period of three months beyond it must hold a valid temporary residence card one year and renewable or a residence permit for a period of ten years and automatically renewable.
The conditions for obtaining these securities have tightened, the residence permit is subject to the republican integration abroad appreciated in the light of the knowledge of the French language and the principles that govern the republic. The administrative authority may refuse to grant it poses a threat to public order.
The degree of protection of foreigners varies according to their position on the French territory.
The stranger in a regular situation, once paid the necessary formalities for the entry and residence in the territory enjoy the same rights as the national will to move and reside freely.
As against the foreigner who is illegally in France or if it represents a particular threat to public order, freedom of movement is reduced to the right to leave the country. In this situation, leaving the country is a requirement for foreign failing compliance and if it is not part of the protected classes.
The output of the country should be free but it can be forced in three cases:
          the deportation established by the law of 10 July 1990 authorizing the prefect remove the consequences of the lack of regulation of the stay abroad.
          expulsion, which must be distinguished from deportation and is a measure taken by the Minister of the Interior when the presence on the territory poses a serious threat to public order. The legislature provided for cases where expulsion is prohibited, so it goes minor eighteen.
The expulsion has certain limitations and guarantees for the person that can be removed in an emergency and when is an urgent need for state security or public safety. The effects of the expulsion is not exhausted with the departure abroad. As long as the order has not been repealed, the individual affected by the measure can not access the national territory. 
          extradition is to put at the disposal of a foreign person prosecuted or sentenced in the state courts. Extradition shall be decided by decree after obtaining the assent of the investigating chamber. The implementation of the extradition process is under dual control.
The Court of Cassation can be entered to examine the legality of the opinion of the investigating chamber and the Council of State has jurisdiction to consider the legality of the extradition decree. It verifies compliance with the provisions of decree law and the European Convention on Human Rights. He canceled a decree of extradition infringed fundamental rights such as the risk of incurring the death penalty. 
III) The control of violations of freedom of movement
It is based on a division of powers between the judicial and the administrative court judge. If the judicial court is the guardian of individual liberties, the administrative judge is asked to rule on general measures restricting the free movement of individuals.
A) The division of powers between the judicial and the administrative court judge
The jurisdiction of the ordinary courts, however, has never been exclusive, different forms of attacks on freedom of movement have been brought before the administrative judge. The administrative judge has long integrated judicial review of violations of freedom of movement in the control of police action.
The judicial court is naturally seized during the commission of an offense or in the event of a serious violation of freedom of movement reached. The administrative judge shall have jurisdiction to rule on police regulations that are contrary to the principle of freedom to come and go such as bylaws.
B) The assessment of the achievement of freedom to come and go
That jurisdiction is vested in the judicial or administrative judge, they must perform a test of proportionality between the need to achieve and the severity of the threat to public order.
The proportionality test lies in reconciling the means employed, the measure and the objective.
The assessment of the legality of the deprivation of liberty depends on the circumstances. For example, one general and absolute measure may be justified in one case and in the other to be illegal.
The proportionality test is not the sole preserve of judges but was reinforced by conventional and legislation.
The degrees of control freedom violations vary depending on several parameters: the recipient of freedom (domestic or foreign), the nature of the injury (total or partial), preventive or repressive nature of the measure which gave rise in breach of the freedom.
The control exercised against foreign gives rise to only minimal control of the administrative judge.
The principle of private and family life came to reinforce the freedom to come and go through the right to stay. The judge verifies that the measure does not disproportionate to the rights guaranteed by the Convention and by implication the freedom to come and go achieved.
This freedom of movement not only has a thorough check, it is protected by including a number of procedural measures to bring its most efficient protection. It should be mentioned, for example, referred parole (Article L 521-2 of the Code of Administrative Justice) that captures the administrative court in emergency when the administration has a serious violation of a fundamental freedom.
The Council of State has granted the freedom to come and go this character in a decision of January 9, 2001 "freedom to come and go, which includes the right to move out of French territory ... is a fundamental freedom meaning of Article L 521-2 above. "