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Articles de la rubrique "Information / médiatisation"
Analyse Décision n°2004-505DC - in english !
Publié par thierryZ dans Information / médiatisation V/REF. N/REF. THZ OLLIOULES /french 27.01.2005 /translation 01.02.2005 SUBJECT: Examination of the Constitutional Council Decision of the French Republic Decision n° 2004-505 cd. - November 19, 2004 Treaty establishing a Constitution for Europe Decision n° 2004-505 cd. of November 19, 2004 Treaty establishing a Constitution for Europe The constitutional Council was seized by the President of the Republic on October 29, 2004, pursuant to article 54 of the Constitution, the question of knowing if the authorization to ratify the treaty establishing a Constitution for Europe, signed in Rome the same day, must be preceded by a revision of the Constitution The CONSTITUTIONAL COUNCIL, Considering the Constitution of October 4, 1958, in particular its title XV: "Of the European Communities and the European Union"; Considering the ordinance n° 58-1067 of bearing 7 November 1958 modified organic law on the constitutional Council; Considering the treaty establishing the European Community; Considering the treaty on the European Union; Considering the other commitments outstanding by France and relating to the European Communities and the European Union; Considering the European Convention of safeguard of the humans right and fundamental freedoms; ................... To the attention of Members of European' s Parliament Ladies and Gentlemen, The diffusion to your attention of this examination of legal and exclusively legal nature, finds its origin in relation of major’s not conformities of the Project of Constitution of the European Union which when compared to the European Convention of safeguard of the Humans Right and of fundamental freedoms (ECHR). The documents in enclosures were diffused initialy to the media and the French government, like later of a diffusion towards the national members of Parliament, the members of the regional Councils and those of the general Councils. As a head of company in a legal situation of rectification, then of bankruptcy with illegal procedure forced of Commercial court in January 2003, we since examined by ourself the legal laws and Codes concerning us and their effective application. Force was to us to pose in France a total report of "gabegie institutional" of share the application null or erroneous of official texts into force, moreover the current defective drafting of the Project of Constitution of the European Union, works Community if it is, seems to oblige to extend this report to the European Union and to the other countries. The aspects and legal elements of our own situation will be the subject of information and of mediatization adapted thereafter, the urgency presents appears to us to share the conclusions on the Project of Constitution to which we arrived and to subject them to the public discussion, however which can be more capable to discuss it than the European members of Parliament. To date, after communication of thousands of electronic mails, we did not receive any contradictory opinion, which perhaps knows will be it European members of Parliament ready to jointly examine by themselves the Project of Constitution to European Convention, then to make share with the European citizens concerned. The text of the decision n°2004-505 CD. of the Constitutional Council of the 19.11.2004 relating to the Treaty establishing a Constitution for Europe can be consulted on its Internet site with the following co-ordinates: Our text hereafter is the evolution of an email addressed to the Constitutional Council the 25.11.2004, the evolutions of the drafting having primarily for object the improvement of the presentation and the connection of the ideas or to add some. All our analyses in report/ratio with the French constitutional Law have necessarily their direct correspondences in the system of right of that of the other European Convention countries. Please thus find in part-joined (*) copy of some established analyses during June 2004 in connection with the Project of Constitution of the European Union. Taking into account the Decision n°2004-505 cd. of the 19.11.2004, we draw the attention to the following points: - A treaty requiring a ratification must be negotiated under the conditions of article 52 of the Constitution for the French part and with partners approved in conformity in their own Constitution or national fundamental Law, the Constitutional Council does not mention if it is acquity of the formality of this checking with French part and if it aimed by itself the accreditations, in the event of legal flaw and of vice of procedure, the treaty concerned would be of null constitutional value even in the event of ratification with vote by referendum or vote by members of Parliament and presidential visa. By definition for the French Republic, its negotiator was at least accredited by the President of the Republic in exercise, however to our knowledge this basic condition is already not filled. - Insofar as the European Convention of safeguard of the humans right and of fundamental freedoms is a duly valid reference frame in the constitutional plan, the item 14 of the Constitutional Council Decision is incorrect or rather insufficient, this owing to the fact that the checking preliminary of conformity of the Charter to the European Convention of the humans right who would have been necessary was not carried out by an official way. Owing to lack of this imperative formal precondition always unaccomplished to date, it is necessary for the Constitutional Council at least to recall that the Charter is considered to respect the characteristic of safeguard of Convention guaranteeing the respect of at least the rights and freedoms already envisaged by this one, and to affirm that concerning the rights and freedoms the Charter cannot in no case to be in retreat compared to Convention, but precisely or rather curiously this characteristic of safeguard is not respected like exposed further. - 14. Considering that it is necessary to appreciate conformity with the Constitution of the "Charter of the basic rights of the Union" which constitutes the second part of the treaty subjected to the constitutional Council; - Items 17, 18, 20 and 21 of the Constitutional Council Decision are referring to the explanations of præsidium of Convention which are thus taken into account by the Constitutional Council, according to legal provisions' positive (substantivizes law) the documents supports of these explanations were thus at its disposal or the means of consulting them freely at any moment, for example on an Internet site, this is a minumum, moreover this must be made possible to all one each one, but at least for ourself to find these explanations of praesidium proved to be impossible… - Item 17 of the decision, by its drafting, already confers by itself a constitutional value to the explanations of praesidium. The documents supports of these explanations are however not quoted in introduction of the decision like having to be taken into account in its examination by the Constitutional Council. The reference frame used just as it is cannot thus be correct. These explanations cannot of the blow being validly integrated and to be used as support to found the Constitutional Council Decision without as a preliminary the obligation of the conformity of these explanations not being recalled to the other commitments outstanding by France and relating to the European Communities and the European Union; and with the European Convention of safeguard of the humans right and of fundamental freedoms. It is under this reserve that the checking of the Constitutional Council in connection with the European Constitution considered could be continued. However that was equivalent above all to a highlighting owing to the fact that conformity between Charte and European Convention never had been officially guaranteed, neither front, neither in, nor after the development of the Project of Constitution itself. In sum the drafting of the Project of Constitution of the European Union car-asserts its illegality, without none of those which had the obligation to cure it about of being troubled. - Item 25 of the decision implies the "principle of subsidiarity", stated by the I-11 article of the treaty, without referring least to the corresponding Protocol, according to the Constitution Article 39 the initiative of the laws belongs jointly to the Prime Minister and to the members of the Parliament…, according to this protocol annexed to the project of European Constitution, within the European Parliament only the European Commission has the initiative of the law. The initiative of the law is preserved at the Prime Minister through the Council of Ministers. Should the constitutional update go until confirming that the initiative of the law is withdrawn in whole or part with the national members of Parliament, whereas the Project of Constitution of the European Union does not transfer this competence to the European members of Parliament within the framework from operation from the European Parliament? Moreover it would also be necessary to recognize officially with the French members of Parliament of the European Parliament, the exercise of whole or part of national sovereignty, which is not yet the case. These interrogations would return to the style of the day if the Constitutional Council were brought to revise its decision. According to the Constitution Article 54 If the Council constitutional, received by the President of the Republic, the Prime Minister, the President of one or the other assembly or by sixty deputies or sixty senators, declared that an international engagement comprises a contrary clause with the Constitution, the authorization to ratify or to approve international engagement in question can intervene only after the revision of the Constitution. The constitutional Council does not present a declaration, but a decision, and announces to the item 23 and 24 like only reason for revision of the Constitution the violation of its article 88-2. - 23. Considering that under the terms of article 88-2 of the Constitution, in its drafting resulting from the constitutional revisions of June 25, 1992, January 25, March 1999, and 25 2003: "Subject to reciprocity and according to methods' provided for in the Treaty on the European Union signed on February 7, 1992, France grants the transfers of competences necessary to the establishment of the economic and monetary Union European. - Under the same reserve and according to methods' provided for in the Treaty establishing the European Community, in its drafting resulting from the treaty signed on October 2, 1997, can be authorized the transfers of competences necessary to the determination of the rules relating to freedom of movement of the people and the fields which are dependent for him. - the law fixes the rules relating to the European warrant for arrest pursuant to the notes taken on the base of the Treaty on the European Union "; - 24. Considering what calls a constitutional revision the clauses of the treaty which transfer to the European Union from competences affecting the conditions essential from exercise from national sovereignty in fields or according to methods' other than those provided for in the treaties mentioned with article 88-2; - 42. Considering that none of the other provisions of the treaty subjected to the constitutional Council in accordance with article 54 of the Constitution implies revision of this one; Article first. - The authorization to ratify the treaty establishing a Constitution for Europe can intervene only after revision of the Constitution. Article 2. - The present decision will be notified to the President of the Republic and will be published in the Journal officiel de la République française. The constitutional Council Decision thus engages so that the constitutional revision will relate to only article 88-2 and engages so that in spite of the current drafting of the treaty, competences of article 39 of the Prime Minister and those especially of the national members of Parliament will be limited neither in article 88-2, nor in any other manner. This fact has strictly as a consequence that the revision of the only French Constitution will be insufficient, and that the Projet treaty of Constitution of the European Union will have to also be the subject of at least one revision, this so that the Project respects article 39 of the Constitution, which is not yet the case of the text signed by President of the Republic on October 29, 2004. Since at least an amendment of the treaty will be necessary before its ratification, it will be obviously judicious to make the project in conformity with the other commitments outstanding by France and relating to the European Communities and the European Union; and with the European Convention of safeguard of the humans right and of fundamental freedoms, which is not the case until now, we mention elements of demonstration below. The Project of Constitution of the European Union is considered to organize between Union and Member States the distribution of the obligations envisaged by the acts and treaties former. For the European Convention of the Humans right (ECHR) or European Convention of safeguard of the humans right and fundamental freedoms, the concept of safeguard prohibited to reduce of them the range and thus the cases envisaged, but were in particular eliminated from the Project: 1° guaranteed effective application of the rights and freedoms, ECHR Preamble and art. 52, 2° to defend oneself by oneself even in a procedure, ECHR 6.3.c), 3° effective recourse for violations of the rights and freedoms even by people in the exercise of their official functions, ECHR 13, Particularly these rights and freedoms are not distributed between Member States and Union whereas they are those guaranteeing all the other rights and freedoms of Convention. The Project comprises the quasi total cancellation of the effective legal practice of the rights and freedoms laid down in the European Convention of the Humans right, indeed those "fall" of a statute of effective application guaranteed in front of the jurisdictions to a statute of nonoperational general principles legally speaking. Except violating the French Constitution, the vote of the Project of Constitution of the European Union in its current drafting is impossible in the constitutional plan, moreover this would remain true even after the modification of the Constitution of the French Republic strictly limited to the indications or current regulations of the Constitutional Council, constitutional impossibility would remain. So that the violation of the Constitution is not effective with a Project unrevised as a preliminary, one would need that the decree of application of European Convention is repealed and that a vote of the French Parliament cancels the adhesion of the Republic to the European Convention of safeguard of the humans right and of fundamental freedoms, only a beginning again text or including the totality of the provisions of European convention can be presented at a vote without as a preliminary repealing the precedent, this is particularly true whereas it is a question of humans right and fundamental freedoms. The Project can make political illusion of program in continuity with Convention, in fact it is the exact political opposite, obviously to create conditions legal and lawful as much as compatible policies with its adoption is impossible, to subject it to a vote at this stage is qualifiable of act of high treason. To seize the High Court of Justice of the Republic against the President of the Republic will be a citizenship obligation in the event of persistence to want to make adopt this Project in the state for which the voters could not be favorable while being indeed informed on its reality. The respect of the rights and freedoms which were eliminated from the drafting of the Project is already very weak by the jurisdictions and other institutions of the Republic whereas legally speaking those currently have the obligation to hold account of it, and that until now the successive governments were extremely well satisfied. In addition to the questions of respect of the Constitution which we have just specified, the principal question who gets clear can be expressed as follows: If legal obligations guaranteed by the Constitution of the Republic and formalized through the European Convention of the Humans right are not currently respected by some members, or by the members, of the legal and administrative institutions, that will occur when these provisions are not any more one obligation for these same institutions, especially by holding account owing to the fact that already the European Charter of the Humans right was denatured before even the Project of Constitution of the Union européene which is only the prolongation. In addition, initiative of law is competence withdrawn from members of Parliament national without to be transmitted to members of Parliament European, since this competence is transmitted to the European Commission which is an executive power compared to the legislative power that are the European members of Parliament, it is the Protocol on the susbsidiarity which attests some. The national members of Parliament find quasi completely private initiative of the law to the faith on the reserved field and the shared field which moreover is indefinitely extensible in the state of the drafting. The current operation of the European Parliament is conceived with European members of Parliament not having the initiative of the law, this can be held for reasonable and acceptable in a European context or the national members of Parliament have themselves this competence. However this operation must obviously be entirely updated if the initiative of the law is withdrawn with the national members of Parliament, which means that the project is unacceptable for the moment, between a Constitution project of dictatorship and a project of federal or confederal Constitution, the most democratic option should be essential for members of Parliament… The majority of the people going guarantee of the Project in the mediae supported that the project of Constitution did not present any retreat and comprise only projections, the statement is of a remarkable ambiguity, because in its current drafting project of Constitution of the European Union is perfect advanced… dictatorial, and quite as perfect confiscation of national sovereignty, and quasi a disappearance of the democracy, in any case its programmed disappearance. Please accept, Ladies and Gentlemen, the expression of our distinguished feelings. Thierry ZUBANOVIC N.B.: (*)The documents in enclosure are compiled as a person in charge for company. (no translation at this date) The joined documents require the free software Adobe Acrobat Reader to be read and printed. P.S. : In case of misanderstanding of our personnal traduction, we recommand to renewal translation by a professional. For documents which are joigned, they are ot translate in english, embassy and consulate can requires professional in translation, however if necessary and in despite of our no much fluent or approximative english we will assume our own translation if expressly required, ... with delivery unknown. THZ.
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