Did the freedom proceeding finally become "the most effective, the most economical and practical weapon that exists in the world to defend freedoms"?

In the case situation, the Council of State for the Council of State was asked to order the Public Assistance Hospitals in Paris (APHP) and the Biomedicine Agency to export to a Spanish clinicgametes of the deceased husband of a young woman wishing to benefit from artificial insemination.The Biomedicine Agency alone competent with regard to the provisions of article L.2141-11-1 of the public health code to authorize the importation or export of games of the body, had opposed Ms. Gomez a refusal due to the provisions of article L.2141-2 of the aforementioned code posing as a condition for such an operation that the two members of the couple are alive.The applicant who then seized the judge in summary proceedings of the Paris Administrative Court through a request for interim measures, argued that the aforementioned provisions of the Public Health Code were obstructing the realization of her pregnancy project under the conditionsLegally provided for in Spain and, above all, brought a disproportionate damage to its right to respect for the privacy as conventionally guaranteed by article 8 of CESDH.She thus asked the judge of the summary of the liberty to examine a means of non-compatibility of the law with the international commitments of France, which was then prohibited by the "Carminati" case law of December 30, 2002 [2].It is then logically that the Paris administrative court considered this means to be ineffective and rejected Ms. Gomez's request by a sorting order.

Indeed by its decision "Carminati", the Council of State could have estimated that the judge of summary proceedings was not likely to take into consideration a means of the annoyance of the law on international commitments, except in the event of existenceof a previous jurisdictional decision on the issue, rendered either by the judge seized mainly, or by the competent judge seized on a preliminary basis.

This particularly questionable jurisprudence with regard to the principle of primacy and the effectiveness of European Union law - still then called Community law - was fortunately abandoned during the decision of June 16, 2010 "Dame Diakité" [3];Without that the "Carminati" solution is informed of other international standards resulting from the treaties ratified by France.However, as Aurélie Bretonneau [4] - based on the case law of July 3, 1996 "underlines" Minister of Equipment C/.Société ABC INGENEering "[5]- then public rapporteur of the case" Gonzalez Gomez ":" The first this two exceptions is enough to convince us of the legal fragility of the prohibition made to the judge of summary proceedings (...) the decision by whichA trial judge grants an exception of unconventionalism of the law has only relative authority and produces no legal effects outside the dispute which would hold the other judges from the bottom ".It appeared somewhat paradoxical to maintain the anachronistic opacity of the theory of the legislative screen more than three decades after the "Nicolo" judgment [6] before the judge of the liberated interim makeup however symbol of modernity and the'Efficiency of administrative justice in the protection of fundamental freedoms.The main reluctance on which "Carminati" jurisprudence rested resulting from reasoning according to which the judge in summary proceedings cannot base its decision on means requiring a complex analysis, therefore not obvious by nature, and manifestly incompatible with the short time offeredto the judge of the procedure freedom to rule.If this argument, although logical, was not, however, insuspected founded criticism, it had in any case become particularly obsolete today as soon as the "Carminati" case law was amputated by the "Diakité" decision;It seemed completely inconsistent to ignore this attendance for Union law and not for other international texts, and in particular for CESDH.To Ronny Abraham [7] to qualify this situation as "paper wall" as the law of the European Union - and at the forefront of which the Charter of Fundamental Rights of the European Union - is assimilated in many points to the provisionsof CESDH.

On the occasion of the "Lambert" affair [8], the Council of State by its order of June 24, 2014 also made an exception - certainly essentially symbolic, because associated with the very specific circumstances of the case - in the legacy of"Carminati" case law.He considered here "(...) that the particular office" of the judge of the summary of the liberty when it is seized of a medical decision "leading to interrupt or not to undertake a treatment on the grounds that the latter would translateUnreasonable obstinacy and that the execution of this decision would irreversibly bring an attack on life, it is up to him, in this context, to examine a means drawn from the incompatibility of legislative provisions (...) with the stipulations of theCESDH ".Even if the Council of State intended here to emphasize that the decision "Lambert" was above all something else, a pure solution of species, it was nonetheless allowed to hover an uncertainty as to the maintenance of a largely criticized jurisprudence andpartially called into question by small touches [9].Without doubt, the Council of State was felt increasingly embarrassed by a case law preventing it, in a procedure which precisely intended to protect freedoms in urgency, to examine, in principle, a means drawn from the violation ofCESDH.

On the other hand, the absence of such control could help reduce the effectiveness of the interim rate, in such a way that the faculty offered to the litigant to form a summary of a liberty without the obligation to exercise simultaneously an appealBasically, could no longer become an advantage but a disadvantage harmful to the protection of its fundamental freedoms.Indeed, in a situation of summary, this absence of control is less damaging in the event that if it had led the judge of the summary proceedings not to be able to prevent an attack however founded in terms of international texts, the judge of the bottom having regard to hisoffice will be able to remedy this situation.However, such a situation is much rarer in terms of aimity interim officer where it is common that this appeal to the simultaneous substance is not exercised, in particular with regard to the extreme emergency situation which characterizes this procedure.So that as follows a weakening of the position of protector of the fundamental freedoms of the administrative judge, so much "it follows that if the law were to bring to the fundamental rights and freedoms protected by a treaty a serious and manifestly illegal attack that heThere would be an extreme urgency to stop, the judge in summary proceedings, even though he would be the only useful recourse, would be paralyzed ”.

Thus, according to the conclusions of Aurélie Bretonneau, the Council of State agreed to examine the circumstances of the case by the visa of article 8 of the CESDH.If due to the absence of European bioethics consensus, the signatory states can perfectly prohibit post-mortem insemination, the Council of State considered that in view of the particular situation of the applicant andfacts of the species, that the refusal of the biomedicine agency brought an excessive attack on the right to respect for the private and family life thereof.

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— Michael Aherne Wed Aug 01 13:55:25 +0000 2012

In any event, by agreeing to expand the office of the judge of the summary procedure to the conventionality control of the law with regard to the CESDH, the Council of State has turned CLORE and brought the page of the pagejurisprudence "carminati" and "allouache" [10] excluding that the judge of the summary leaflet can examine the conventionality of a law.

Thus by these developments the judge of the interim rate of liberty now has fully an attribute which returned to him by right, that is to say the possibility of exercising a full and whole "control of fundamentality" putting the litigant at the heart of the effective protection ofRights and freedoms.In the sense that the legislative prohibition is not always worth more than the subjective law of the litigant, than "the all -founded legislator that it is to settle the fate of the people who are under his jurisdiction, including by hearing, in the nameFrom the principle of benevolence, to do their good sometimes in spite of themselves, cannot be deemed to have heard of situations which, by the force of the circumstances, escape him (...) completely ”[11].

Thus all the freedoms inscribed in our Constitution or in the international treaties signed and ratified by France are now protected by the procedure of the freedom proceedings, which extends to the assault.From such an evolution follows that "for litigants and in public opinion, the judge of the summary procedure, has become one of the familiar and essential links of the protection of our fundamental rights" [12].Should we therefore paraphrase Gaston Jèze speaking about the appeal for excess of power, considering that the interim injury has become "the more effective, the most effective, the most economical and the most practical that existsIn the world to defend freedoms ”, if only in the context of relations between citizens and the administration?

Nothing seems to be safer.

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