Bis repetita? The question of asylum in France of Edward Snowden has returned to the political carpet. The famous whistleblower, who resides in Russia, reiterated his wish - already formulated in 2013 - to find refuge in France, during the promotional tour for his book "Mémoires Vives", published Tuesday, September 17 to the editions of Seuil.
>> To see on France 24, the interview of Edward Snowden: "We changed the laws to legitimize the surveillance"
"Of course, we would very much like Emmanuel Macron to launch an invitation [to grant the right to asylum, Ed]," Edward Snowden told France Inter on Monday. While his proposal had garnered broad support in civil society in 2013, this time it was voices from the presidential majority that pleaded for Paris to accede to the whistleblower's request. Left to put Emmanuel Macron in embarrassment vis-à-vis the United States.
Conventional or constitutional asylum
For example, Minister of Justice Nicole Belloubet spoke in favor of granting refugee status to Edward Snowden. As soon as the Elysee had announced that it was only a personal position, that Nathalie Loiseau, LREM head of the list in the last European elections, announced that she shared the position of the Keeper of the Seals. She ruled that the former NSA consultant had "rendered a service to humanity" by revealing the extent of the US intelligence agency's electronic surveillance in 2013.
The political context therefore seems more favorable to Edward Snowden than six years ago, even if the Élysée, contacted by Le Monde, declined to comment on this issue. But the legal situation of the man behind the scandal of the NSA has, for its part, changed little.
The American whistleblower could, in theory, file a claim under the 1951 Geneva Convention relating to the Status of Refugees, or invoke the constitutional right to asylum. In practice, the French Office for the Protection of Refugees and Stateless Persons (Ofpra) essentially grants refugee status under the Geneva Convention because "it considers that the convention is broad enough in purpose" to encompass constitutional asylum, explains Catherine Teitgen-Colly, professor emeritus at Paris I University and specialist in asylum law, contacted by France 24. The cases where OFPRA granted constitutional refugee status in the last two years can be counted on the fingers of 'a hand.
Edward Snowden would fit "perfectly in the criteria of refugee within the meaning of the convention of 1951", Judge Gérard Sadik, responsible asylum to the Cimade, an association of support to the migrants and asylum seekers. He may be considered a political opponent who has reason to fear persecution in the United States for the revelations made in 2013.
Political act or contentious weapon
But the experts interviewed believe that Edward Snowden would do better to opt for a constitutional asylum claim. First for political reasons. "France would be proud to defend the right of asylum and it took the trouble to include it in its Constitution.It is little given, but it exists.This is a unique opportunity with regard to the launcher d Edward Snowden, and the French position on the protection of personal data ", says Catherine Teitgen-Colly. For her, in such a media issue, it would be a golden opportunity for Paris to recall why France has historically been considered a host country for refugees. The constitutional right of asylum is indeed a revolutionary principle inscribed, for the first time, in the mountain constitution of 1793. It replaced the right of asylum as a fact of the prince by an automatic right of asylum from the moment the plaintiff "was banished from his country for the cause of freedom".
Over the centuries, the notion has evolved and it is the Ofpra which frames today its application. The claimant must state "an active commitment to the establishment of a democratic regime or the values attached to it" and must prove the existence of persecution. In defending the NSA's privacy against mass surveillance, Edward Snowden has shown "actions in favor of freedom," according to Catherine Teitgen-Colly. The fact that the former NSA consultant was deprived of his passport, and the heavy jail sentence (35 years) of which Chelsea Manning - one of the main sources of WikiLeaks - was sentenced would be sufficient evidence of the persecution. whistleblowers who attack US intelligence services. In addition, in 2014, the future US president, Donald Trump tweeted (already) threats could not be clearer with respect to Edward Snowden: he considers it as "a spy that caused significant damage to the United States. United, a spy who, when our country was strong and respected, would have been executed. "
But recourse to constitutional asylum would also be of practical interest. In 2013, France did not refuse asylum to Edward Snowden ... she just did not allow him to apply by refusing him a visa. "The asylum stops at our borders," says Gérard Sadick. You must be on the national territory to file a file at Ofpra.
To circumvent the obstacle, it would be possible to use "the constitutional asylum in a logic contentious", underlines this specialist. Since the principle has a constitutional value that places it above the law, "the question is whether the authorities have the right to refuse to issue a visa in this case," said the expert Cimade.
The text of the preamble to the Constitution also sounds like an imperative since it stipulates that any person "persecuted because of his action for the freedom has right of asylum" in France. In other words, the whistleblower could challenge a visa refusal in French courts through his lawyers arguing that it is unconstitutional.
And if the courts did not give him reason, Edward Snowden can still hope for a presidential gesture. Emmanuel Macron has, in fact, the power to grant regal asylum. This is perhaps what the whistleblower suggested by saying that the French president could send him an "invitation".