Gérald Darmanin would have some difficulty leaving his clothes as Interior Minister? In an interview granted Sunday, February 9 at BFM TV, the Keeper of the Seals explained wish to abolish the departmental commissions for the expulsion of foreigners (Comex). An body made up of magistrates, of course, but seized by the prefect, after a decision taken by the representative of the Ministry of the Interior to expel a foreigner in regular situations outside the territory.
His observations were made after the cancellation by the Administrative Court of the expulsion of the influencer Doualemn. This Algerian national who had made threatening remarks against France, had been sent back to his country of origin via an emergency procedure. “When you go through the emergency procedure, it’s faster, you do not go before Comex, a commission of magistrates that decide if you are right or not,” he developed, before S ‘ Ask out loud. “Should I delete the Comex? Yes”. According to him, the “advisory” opinion of this commission “takes a long time”. “The French wonder why to waste so much time” in the expulsion process, he continued.
The existence of this body, whose opinion is not always followed by the prefect, is debated even in the judicial sphere. When lawyers for the rights of the defense are concerned about the risk that such a suppression would pose over the contradictory, the magistrates seem divided. In Beauvau, the entourage of Bruno Retailleau indicates that “the deletion of Comex is a subject that deserves to be studied”. If it were to arrive, such a modification should go through a law.
A decision proportional to the danger of the person
Unlike the obligations to leave the territory (OQTF), which exclusively concern foreigners in an irregular situation, expulsion procedures may also concern people in good standing. They are pronounced in situations of grave threat to public order (such as violence or drug trafficking), or behaviors that can affect the fundamental interests of the State.
Their effects are much more important than OQTF. As a report of the Court of Auditors recalls on the policy of fighting irregular immigration published in January 2024, the expulsion can “target foreigners benefiting from protection”, appeals to the administrative court “are not suspensive of its execution and the measure is accompanied by a permanent prohibition of return to French territory “. This heavy decision is complex to pronounce, because it is up to the administration to prove the “reality of the threat” that a person can weigh, “under the control of the administrative judge”. The expulsions are therefore rare: according to the report of the Court of Auditors, 977 measures were pronounced between 2019 and 2023 (including 344 arrested in 2021).
So many comex therefore took place the same year. Because the decision of the prefecture is necessarily followed – except in cases of “absolute emergency” – by their referral. “They have existed since 1945, and allow the person concerned by the expulsion decree and his lawyer to exhibit his case, to make his arguments heard to challenge him,” explains Thibaut Fleury-Graff, professor in public law to The Panthéon-Assas University, whose research themes cover international migrations in particular. The magistrates then have the role of examining the file and estimating whether the prefect’s decision is proportional to the danger posed by the person.
Advisory opinion
In some cases, Comex approaches the prefecture’s decision. In March 2018, the former Torcy mosque’s alternate mosque was, for example, was expelled to Morocco. In 2016 and 2017, the Moroccan national had “explicitly legitimized the armed jihad”, calling on the faithful “to pray for jihadists around the world in order to destroy the enemies of Islam in France and in the world”. When he had been presented to the foreigners’ expulsion commission at the Melun tribunal de grande instance, she considered that her expulsion was “an imperative necessity for state security or public security”. More recently, in 2022, the COMEX chaired by the president of the Lille judicial court also agreed to the Ministry of the Interior concerning the expulsion of Imam Hassan Iquioussen. His “anti -Semitic speeches”, “systematic on the inferiority of women” and “explicit and deliberate acts of provocations to discrimination or hatred”, had even finally led the Council of State to validate this decision.
In other cases, magistrates can make an unfavorable opinion on the maintenance of the decree. “It can also issue an opinion unfavorable to expulsion policies when the person is still engaged in legal proceedings, adds Ludovic Friat, president of the union union of magistrates. It is generally preferable that it can be judged and Complete his sentence in France “. But even if the Comex disputes the prefect’s decision, their opinions have only been advisory since 1986 and the “Pasqua law”, relating to the conditions of entry and stay of foreigners in France.
The prefectures are therefore not required to respect them. “From memory, the only time his opinions were really followed was between 1988 and 1992, under the Rocard and Bérégovoy governments, remembers a president of the corps of administrative courts, specialist in foreigners’ law. Time, this is not the case. ” Hence the question of the Keeper of the Seals, perceived as legitimate by former Beauvau. “It is a somewhat formal decision that slows down the procedure, since it was not until a month after the prefect’s referral before it realized,” said Fernand Gontier, honorary director of the active services of the national police, author of The hidden face of immigration. A month to give the already overloaded magistrates time to organize for the audience. A delay, too, to allow the defense to prepare their file.
A “formality”
“The Comex is a fairly heavy formality. The time to convene it, to bring it together, you take two months in view of your expulsion procedure, adds a prefect who was led to seize it several times in his department. Everything That, in order to make an opinion which will often have no effect on the prefectural decision “. For this representative of the State, the Comex therefore slows down the “important change printed by Gérald Darmanin” when he was in Beauvau. “He asked the prefects to use the renewed and evictions more for foreigners who cause disturbances to public order, and not only for foreigners in an irregular situation on the territory, he continues. He wanted results on The renewal of foreigners according to their dangerousness. She now continues that Bruno Retailleau has taken his place inside.
This acceleration of the rhythm also questions certain magistrates. “These consultative commissions – whose opinion does not bind anyone – take time on our main mission,” observes Ludovic Friat. In Bobigny, for example, where one of the administrative courts most confronted with these prefectural decisions, the Comex “are found twice a month, at the rate of one morning each time”. A dozen files are examined there. “The subject divides: we are sorely lacking in magistrates and time, which could push some to desire to abandon this body, takes up Ludovic Friat. But at the same time, the administrative judge is the guarantor of public freedoms. of means, to give up a certain guarantee for the person concerned by the decree? “The opinion rendered by the expulsion commissions makes it possible to have a global vision of the file, not only of the criminal record. This document poses things and allows the contradictory to be developed,” says Saliha Sadek, a lawyer specializing in the foreigners’ law.
Even if a Comex opinion is not always respected by a prefect, the state representative knows that his argument will be more fragile before the administrative court in the event of a negative rendering. This will not necessarily have prevented the expulsion of the foreigner concerned upstream: between 2016 and 2019, 79 % of the pronounced expulsion orders were executed. A number that had not varied until 2024, the year of publication of the report of the Court of Auditors.
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