EUROPEAN COURT OF HUMAN RIGHTS
In the case of Amuur v. France (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Bernhardt, President,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr C. Russo,
Mrs E. Palm,
Mr J.M. Morenilla,
Mr J. Makarczyk,
Mr P. Kuris,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 24 January, 22 February and
20 May 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 17/1995/523/609. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 1 March 1995, within the three-month
period laid down by Article 32 para. 1 and Article 47 of the Convention
(art. 32-1, art. 47). It originated in an application (no. 19776/92)
against France lodged with the Commission under Article 25 (art. 25)
by four Somali nationals, Mr Mahad Abdi Amuur, Miss Lahima Amuur,
Mr Abdelkader Abdi Amuur and Mr Mohammed Abdi Amuur, on 27 March 1992.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 5 of the Convention (art. 5).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the lawyer who had represented
the applicants before the Commission stated that she was unable to
contact them but that the terms of the authority to act that had been
produced before the Commission also covered the proceedings before the
Court. On 5 May 1995 the President of the Court informed her that it
was not necessary to produce fresh authority to act.
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President
of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of
the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot
the names of the other seven members, namely Mr R. Macdonald,
Mr C. Russo, Mrs E. Palm, Mr J.M. Morenilla, Mr J. Makarczyk,
Mr P. Kuris and Mr U. Lohmus (Article 43 in fine of the Convention and
Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the French
Government ("the Government"), the applicants' lawyer and the Delegate
of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). The applicants' and the Government's
memorials were received by the registry on 26 and 29 September 1995
respectively. On 3 November the Secretary to the Commission informed
the Registrar that the Delegate did not intend to submit written
observations.
On 22 December 1995 the applicants' lawyers filed an additional
memorial setting out the applicants' claims under Article 50 of the
Convention (art. 50).
On 16 January 1996 the President decided, having regard to the
particular circumstances of the case, to allow the request for legal
aid that the lawyers had lodged on the applicants' behalf (Rule 4 of
the Addendum to Rules of Court A).
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
23 January 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J.-F. Dobelle, Deputy Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mr J. Lapouzade, administrative court judge
on secondment to the Legal Affairs Department,
Ministry of Foreign Affairs,
Mrs M. Pauti, Head of the Comparative and International
Law Office, Department of Public Freedoms and Legal
Affairs, Ministry of the Interior, Advisers;
(b) for the Commission
Mr A. Weitzel, Delegate;
(c) for the applicant
Ms P. Taelman, avocate,
Ms D. Monget-Sarrail, avocate,
Ms L. Roques, avocate, Counsel.
The Court heard addresses by Mr Weitzel, Ms Taelman, Ms Roques
and Mr Dobelle. The applicants' lawyers produced documents at the
hearing.
AS TO THE FACTS
I. Circumstances of the case
6. The applicants, Mahad, Lahima, Abdelkader and Mohammed Amuur, are
Somali nationals. They are brothers and sister born respectively in
1970, 1971, 1973 and 1975.
A. Refusal of leave to enter French territory and of
applications for refugee status
7. The applicants arrived at Paris-Orly Airport on 9 March 1992 on
board a Syrian Airlines flight from Damascus (Syria), where they had
stayed for two months after travelling there via Kenya. They asserted
that they had fled Somalia because, after the overthrow of the regime
of President Siyad Barre, their lives were in danger and several
members of their family had been murdered. Five of their cousins and
thirteen other Somali nationals (including eleven children) also
arrived, some on the same flight and others from Cairo on 14 March.
However, the airport and border police refused to admit them to French
territory, on the ground that their passports had been falsified, and
held them at the Hôtel Arcade, part of which had been let to the
Ministry of the Interior and converted for use as a waiting area for
Orly Airport.
According to the applicants, police officers would drop them off
at the airport's Espace lounge very early in the morning and take them
back to the Hôtel Arcade in the evening.
8. On 12 March, in accordance with Article 12 of Decree no. 82-442
of 27 May 1982 (see paragraph 16 below), the Minister of the Interior
considered an application by the applicants for leave to enter under
the right of asylum.
The applicants were granted legal aid as from 24 March, when
CIMADE, a humanitarian organisation, which had in the meantime inquired
about their situation, put them in contact with a lawyer.
9. On 25 March the applicants asked the French Office for the
Protection of Refugees and Stateless Persons ("the OFPRA") to grant
them refugee status pursuant to the Geneva Convention of 28 July 1951.
On 31 March the OFPRA ruled that it lacked jurisdiction because the
applicants had not obtained a temporary residence permit.
10. On 26 March the applicants applied to the urgent applications
judge at the Créteil tribunal de grande instance at short notice
seeking an order for their release from confinement at the
Hôtel Arcade, which, they asserted, constituted a flagrantly unlawful
act (voie de fait).
B. The applicants' return to Syria
11. On 29 March at 1.30 p.m., after the Minister of the Interior had
refused them leave to enter, the applicants were sent back to Syria,
which, according to the Government, had agreed to take them. The other
eighteen Somali nationals (see paragraph 7 above), who had not been
sent back, were recognised as political refugees by the OFPRA in a
decision of 25 June 1992.
On 10 June the United Nations High Commissioner for Refugees
("the HCR") sent the Ministry of the Interior the following fax:
"The four persons were allowed to re-enter Syrian territory
without difficulty, the French Embassy having obtained guarantees
to that effect from the relevant Syrian authorities. The four
Somali nationals were supposed to get in touch with our office
later for their status to be determined, but to date we have
heard nothing from them. We shall keep you informed of any
further developments."
Before the Commission the applicants alleged that these
guarantees had been given after their expulsion from France.
The Government stated at the hearing before the Court that on
29 July 1992 they had received from the HCR a further fax, worded as
follows:
"The Damascus delegation of the United Nations High Commissioner
for Refugees has just informed us that the four members of the
Amuur family had recently been recognised as refugees by the HCR,
under paragraph 68 of its Statute ... As Syria grants asylum to
persons recognised as refugees by the HCR under its Statute,
these Somali nationals were not in danger of being refused entry
and sent to their country of origin."
C. The order of the Créteil tribunal de grande instance
12. On 31 March the Créteil tribunal de grande instance issued an
order under the expedited procedure in which it ruled that the
applicants' detention was unlawful and directed that they be released.
The relevant part of the court's decision reads as follows:
"Although the lawfulness of refusals to admit aliens ... cannot
be reviewed by an urgent applications judge, ... the current
detention by order of the Minister of the Interior on premises
which are, moreover, not situated in the international zone, is
not provided for by any legislation, as is indeed implicitly
acknowledged by the Minister of the Interior.
Furthermore, under the legislative and constitutional provisions
currently applicable in France, detention may not be ordered by
the administrative authorities in cases other than those provided
for in Article 35 bis of the 1945 Ordinance, which in any event
makes such detention subject to supervision by the ordinary
courts.
In French law as it stands at present, therefore, and whatever
the factual circumstances surrounding the entry of the aliens
concerned, the applicants must be considered to have been
arbitrarily deprived of their liberty; it follows that a
flagrantly unlawful act is being committed which it is the duty
of the urgent applications judge to bring to an end.
The Minister of the Interior is accordingly ordered to release
the applicants."
No appeal against the above order was lodged by State Counsel's
Office.
D. The appeal to the Refugee Appeals Board
13. In the meantime, on 30 March, the applicants had appealed to the
Refugee Appeals Board. They sought a ruling that the Minister of the
Interior's decision refusing them leave to enter French territory and
the order that they be sent back to Syria were contrary to
section 5 (b) of the Law of 25 July 1952 on the suspensive effect of
appeals to the Appeals Board, Article 31 para. 1 of the Geneva
Convention, which prohibited the imposition of criminal penalties for
the unlawful entry or residence of refugees, and Article 33 para. 1 of
the same Convention, which prohibited turning away a refugee to a
country where his life would be in peril.
14. On 17 April 1992 the Appeals Board found against the applicants.
It ruled that the decisions to remove them from French territory were
not incompatible with the rule that appeals had a suspensive effect as
the appeal had been lodged after the decisions had been carried out,
the applicants had not been prosecuted and the French Government had
obtained assurances concerning the applicants' life and liberty from
the Syrian authorities.
II. Relevant domestic law
A. Applications for refugee status
15. Under a circular from the Prime Minister dated 17 May 1985, on
asylum-seekers, the temporary admission to France of aliens seeking
asylum requires the issue of two documents in turn: a temporary
residence permit "for the purpose of making an application to the
OFPRA", valid for one month, and a receipt bearing the words "Asylum
applied for", valid as a temporary residence and work permit for three
months and renewable. However, an application to the OFPRA can be made
only by persons given leave to enter French territory, and the decision
to admit an alien is left to the discretion of the Minister of the
Interior.
16. Under the procedure laid down in Decree no. 82-442 of
27 May 1982, which was in force at the material time, "Where
immigration control is carried out by officers of the national police,
any decision to refuse an alien leave to enter France shall be taken
... by the officer in charge of the checkpoint ..."; Article 12 of the
decree provides: "Where an alien arriving at the border asks for
asylum, a decision to refuse leave to enter France may be taken only
by the Minister of the Interior, after the Minister of Foreign Affairs
has been consulted." It was the Minister of the Interior's practice
to request the opinion, on an advisory basis, of the representative of
the HCR.
17. Article 5, third paragraph, of Ordinance no. 45-2658 of
2 November 1945 on the conditions of aliens' entry into France and
residence there provides:
"Every refusal of leave to enter must be conveyed in a written
decision, ... setting out reasons specific to the facts of the
case, one copy of which shall be given to the person concerned.
An alien who has been refused entry shall be given the
opportunity to inform or have informed the person whom he has
said he intended to visit, his consulate or the lawyer of his
choice."
Law no. 89-548 of 2 August 1989 added to the foregoing provisions
the following paragraph, which was applicable at the material time:
"In no circumstances may refusal of entry give rise to
repatriation against the will of the person concerned before one
clear day has elapsed. An alien who has been refused leave to
enter may be held on premises not under the authority of the
prison service and for the time strictly necessary to arrange his
departure, as provided in Article 35 bis."
18. Article 35 bis of the Ordinance of 2 November 1945, in force at
the material time, provided:
"An alien may be held, if this is absolutely necessary, by a
reasoned written decision of the Prefect, on premises not under
the authority of the prison service and for the time strictly
necessary to arrange his departure, where:
1. he is not able to comply immediately with a decision to
refuse him leave to enter French territory; or
2. being subject to a deportation order, he is unable to leave
French territory immediately; or
3. being due to be expelled, he is unable to leave French
territory immediately.
For the application of sub-paragraph 1 of this Article, the
Prefect may authorise an official having the status of a senior
law-enforcement officer (officier de police judiciaire) to sign
the decision on his behalf.
State Counsel shall be informed of the decision immediately.
The alien shall immediately be informed of his rights through an
interpreter if he does not understand French.
When twenty-four hours have elapsed from the decision to hold,
the case shall be brought before the President of the tribunal
de grande instance or a judge designated by him, who, after
hearing the person concerned in the presence of his lawyer, if
any, or after the lawyer has been duly informed, shall make an
order for one or more of the supervision and control measures
necessary to ensure his departure listed below:
Surrender to the police or gendarmerie of all identity documents,
in particular his passport, in exchange for a receipt valid as
proof of identity;
Compulsory residence in a specified place;
In exceptional cases, holding for a further period on the
premises mentioned in the first paragraph of this Article. The
extension order shall run from the expiry of the twenty-four-hour
period laid down in this paragraph.
These measures shall cease to apply at the latest when six days
have elapsed since the issue of the order mentioned above."
B. Holding in the international zone
1. The circular of 26 June 1990
19. At the material time the practice of holding in the international
zone, also called the transit zone, was the subject of a circular from
the Minister of the Interior (unpublished) of 26 June 1990 on the
procedures for refusing aliens leave to enter France. The relevant
passages of the circular read as follows:
"... An alien who has been refused leave to enter and is waiting
to be sent away has the right to freedom of movement inside the
international zone, where such a zone exists and has facilities
suitably adapted to the types of surveillance and accommodation
required for the alien in question. If so, it will be necessary
to provide accommodation and take the necessary measures to
ensure that he does not enter French territory.
...
III.2.1. Holding in the international zone
In practice international zones are to be found mainly at certain
ports and airports.
...
At airports the international zone means the sealed-off area (or
one that can be sealed off) used for the arrival of international
flights and situated between the passengers' point of arrival and
the police checkpoints.
Alternatively, a hotel situated in the immediate proximity of the
port or airport may be used to accommodate aliens refused entry
to whom Article 35 bis of the Ordinance of 2 November 1945 has
not been applied, but transfer thereto shall not be deemed to
constitute entry into the territory. The aliens concerned shall
be informed of the above conditions.
...
Where aliens who have been refused leave to enter are held in the
international zone, the immigration control authorities shall
carry out appropriate surveillance, but this may in no
circumstances take the form of total isolation in a locked room.
...
III.2.3. Aliens' rights
...
Consequently, in all cases, an alien who has been refused entry
will have the possibility, once the relevant decision has been
taken, of informing or sending word to the person living at the
address to which he has indicated that he intends to travel
according to the statements recorded at the time of notification,
to his consulate or to a lawyer of his own choice. In practice,
the services that have refused entry will be responsible for
enabling the alien concerned to communicate with the persons
listed above. You will therefore allow him access to a telephone
and let him use it to seek the information he may require, it
being understood that calls outside France will not be permitted
and that the conversation must remain reasonable in length.
...
III.2.5. Asylum-seekers
...
While it is not necessary to describe the procedure for
processing an application for asylum at the frontier, no order
for administrative detention may be issued in respect of the
person concerned until a refusal of leave to enter, if there is
one, has been served on him.
Where an alien declares that he seeks political asylum when he
has already been served with refusal of leave to enter, but has
not yet entered the territory, the request shall be regarded as
an application for asylum at the frontier and brought as soon as
possible to the attention of the Department of Public Freedoms
and Legal Affairs which, after investigating the case, will make
known the decision taken pursuant to the provisions of Article 12
of Decree no. 82-442 of 27 May 1982.
..."
2. The Law of 6 September 1991
20. The Law of 6 September 1991 amending the Ordinance of
2 November 1945 on aliens' conditions of entry into France and
residence there was the first attempt to legislate on the question of
transit zones. When the draft version of section 8 of the Law of
6 September 1991 was presented to Parliament, the Minister of the
Interior declared: "aliens in that situation are not detained
(retenus), since they are not on French territory, as they are free to
leave at any time" (Official Gazette, 19 December 1991, p. 8256).
Section 8 (1) of the Law inserted into the above-mentioned
Ordinance an Article 35 quater, which provided:
"... an alien who has been refused leave to enter French
territory at an airport or port, or who has sought asylum there,
may be held in the transit zone of that airport or port for the
time strictly necessary to arrange his departure or to consider
his application for leave to enter the territory, and for not
more than twenty days. This zone, whose limits shall be laid
down in a decision of the Prefect, shall extend from the points
of embarkation or disembarkation on French territory to the
checkpoints for persons entering and leaving the territory. It
may be enlarged to include within its perimeter one or more
places of accommodation ... The order to hold in the transit
zone shall be made in a reasoned written decision of the head of
immigration control or an official having the rank of sergeant
designated by him. This decision shall be entered in a register
recording the alien's civil status and the holding conditions;
... the alien shall be free to leave the transit zone at any time
for any foreign destination of his choice ..."
3. The Constitutional Council's decision of 25 February 1992
21. The Constitutional Council, on an application by the Prime
Minister under Article 61 of the Constitution, ruled on
25 February 1992 that section 8 of the Law of 6 September 1991 was
unconstitutional for the following reasons:
"It should be noted in this connection that holding an alien in
the transit zone under the conditions laid down in Article 35
quater (I), inserted in the Ordinance of 2 November 1945 by
section 8 (1) of the referred law, does not entail a degree of
restriction of movement comparable with that which would result
from placing him in a detention centre under Article 35 bis of
the Ordinance.
However, holding an alien in the transit zone does nevertheless,
through the combined effect of the degree of restriction of
movement it entails and its duration, impinge on the personal
liberty of the person concerned within the meaning of Article 66
of the Constitution. Although the power to order an alien to be
held may be conferred by law on the administrative authorities,
the legislature must make appropriate provision for the courts
to intervene, so that they may carry out their responsibilities
and exercise the supervisory power conferred on them.
Whatever the safeguards under the provisions of Article 35 quater
as regards the holding of aliens in the transit zone, those
provisions contain no requirement that the courts must intervene
to decide whether or not a person should be held for longer, such
as would enable them to determine, on the facts of the case,
whether such a measure was necessary. In any event, a person
cannot be held for more than a reasonable period.
It follows that, as it confers on the administrative authorities
the power to hold an alien in the transit zone for a lengthy
period, without providing for speedy intervention by the courts,
Article 35 quater, as inserted into the Ordinance of
2 November 1945 by section 8 (1) of the referred law, is, as it
stands, unconstitutional."
4. The judgment of the Paris tribunal de grande instance of
25 March 1992
22. On 25 March 1992 the Paris tribunal de grande instance, giving
judgment in an action for damages brought by three asylum-seekers who
had been held in the international zone, in the Hôtel Arcade at Roissy
Airport, ruled as follows:
"... holding an alien on the premises of the Hôtel Arcade,
given the degree of restriction of movement it entails and
its duration - which is not laid down by any provision and
depends solely on an administrative decision, without any
judicial supervision whatsoever - impinges on the liberty
of the person concerned. Total deprivation of freedom to
come and go is not necessary for an infringement of that
freedom to be made out; it is enough if, as in the instant
case, a person's liberty has been seriously restricted as
a result of the relevant decision.
... we reject as ill-founded the defendant's submission
that the complaint of an interference with personal liberty
should be dismissed because the alien was merely prevented
from entering France, as he was detained in a place which
had to be regarded as an 'extension' of the airport's
international zone. No evidence has been adduced of the
existence of any provision of national or international law
conferring any extraterritorial status on all or part of
the premises of the Hôtel Arcade - which lies, moreover,
outside the airport's perimeter and the area under customs
control.
... as matters stand, this zone, which is a legal fiction,
cannot be exempted from the fundamental principles of
personal liberty.
... the indisputable prerogative of the administrative
authorities, who in the field of immigration control have
exclusive authority to refuse leave to enter French
territory - even, subject to the conditions set out in
Article 12 of the Decree of 27 May 1982, in the case of an
application for asylum - does not, however, allow the
Minister of the Interior to restrict the liberty of an
alien save in the circumstances and under the conditions
prescribed by law.
...
... under present French legislation on aliens, the
administrative authorities may not temporarily deprive an
alien of his freedom to come and go except in the
circumstances and in accordance with the procedures laid
down in Article 5 (last paragraph) and Article 35 bis of
the Ordinance of 2 November 1945. These provisions apply,
in particular, to refusal of leave to enter France. They
fix the maximum period of administrative detention
(rétention) and provide that it cannot be extended beyond
twenty-four hours without the authorisation of the
President of the tribunal de grande instance.
... in the absence of any specific rules governing the holding
of an asylum-seeker in the international zone for the time
strictly necessary for the administrative authorities to consider
whether his application is admissible, those authorities are not,
moreover, entitled to invoke to their advantage a necessary,
general right to hold an alien in that supervised zone."
State Counsel's Office appealed against the above judgment to the
Paris Court of Appeal. However, on 23 September 1992 the case was
struck out of the list on the ground that the appellant had not
submitted final pleadings within the time-limit.
5. The Law of 6 July 1992
23. Following the above-mentioned decision of the Constitutional
Council (see paragraph 21 above), Parliament adopted Law no. 92-625 of
6 July 1992, which was itself amended by Law no. 94-1136 of
27 December 1994. This text, which - like the previous version (see
paragraph 20 above) - inserted an Article 35 quater into the Ordinance
of 2 November 1945, provides:
"I. An alien who arrives in France by rail, sea or air and who
(a) is refused leave to enter French territory or (b) applies for
asylum may be held in a waiting zone situated at a railway
station open to international traffic and designated by
regulation, a port or an airport, for the time strictly necessary
to arrange his departure and, if he is an asylum-seeker, to
investigate whether his application is manifestly ill-founded.
He shall be informed immediately of his rights and duties, if
necessary through an interpreter. This shall be recorded in the
register mentioned below, which shall be countersigned by the
person concerned.
The limits of the waiting zone shall be laid down by the State's
representative in the département. It shall extend from the
points of embarkation or disembarkation to the immigration
control checkpoints. It may include within its perimeter, or
near the station, port or airport, one or more places of
accommodation providing the aliens concerned with hotel-type
services.
II. The order to hold in the waiting zone, for a period which
may not exceed forty-eight hours, shall be made in a reasoned
written decision of the head of immigration control or an
official having the rank of sergeant designated by him. This
decision shall be entered in a register recording the alien's
civil status and the date and time when the decision to hold was
served on him. State Counsel shall be informed of the decision
without delay. It may be renewed under the same conditions and
for the same period.
The alien shall be free to leave the waiting zone at any time for
any destination situated outside France. He may request the
assistance of an interpreter and a doctor and communicate with
a lawyer or any person of his choice.
III. Holding in the waiting zone after four days have elapsed
since the initial decision may be authorised, by the President
of the tribunal de grande instance, or a judge delegated by him,
for a period not exceeding eight days. The administrative
authority shall set out in its application the reasons why it has
not been possible to repatriate the alien or, if he has applied
for asylum, to admit him, and the time necessary to ensure his
departure from the waiting zone. The President of the tribunal
de grande instance or his delegate shall give a ruling in the
form of an order, after hearing the person concerned in the
presence of his lawyer, if any, or after the lawyer has been duly
informed. The alien may request the President or his delegate
to assign him a lawyer under the legal-aid scheme. He may also
ask the President or his delegate for the assistance of an
interpreter and for a copy of his file. The President or his
delegate shall rule at the seat of the tribunal de grande
instance, except in the districts designated by decree issued
after consultation of the Conseil d'Etat. In such a case,
without prejudice to the application of Article 435 of the New
Code of Civil Procedure, he shall give his ruling in public in
a hearing room specially created inside the perimeter of the
station, port or airport.
An appeal shall lie against the order to the President of the
Court of Appeal or his delegate, who must rule on the appeal, for
which there is no particular required form, within forty-eight
hours. Appeals may be lodged by the person concerned, State
Counsel's Office and the representative of the State in the
département. The appeal shall not have suspensive effect.
IV. Exceptionally, holding in the waiting zone may be renewed
beyond twelve days, under the conditions laid down in
section III, by the President of the tribunal de grande instance
or his delegate, for a period which he shall determine, which may
not exceed eight days.
V. During the whole of the time that the alien is held in the
waiting zone, he shall enjoy the rights set forth in the second
paragraph of section II. State Counsel and, after the first four
days, the President of the tribunal de grande instance or his
delegate may visit the waiting zone in order to verify the
conditions of his confinement and inspect the register mentioned
in section II.
The conditions for access to the waiting zone of the delegate of
the United Nations High Commissioner for Refugees or his
representatives and humanitarian associations shall be laid down
in a decree issued after consultation of the Conseil d'Etat.
VI. Where holding in the waiting zone is not extended beyond the
limit fixed by the last decision to hold, the alien shall be
authorised to enter French territory on an eight-day visa. He
must have left French territory by the time this limit expires,
unless he obtains a provisional residence permit or a receipt for
a residence permit application.
VII. The provisions of the present Article shall also apply to
an alien who is in transit at a station, port or airport, where
the carrier which was to have conveyed him to his country of
destination refuses to let him embark or where the authorities
of the country of destination have refused him leave to enter and
have sent him back to France.
VIII. Where the alien's departure from French territory cannot
be arranged from the station, port or airport to which the
waiting zone where he is being held is attached, he may be
transferred to a waiting zone attached to any station, port or
airport from which he can leave.
Where the transfer decision must be taken within four days from
the initial decision to hold in the waiting zone, it shall be
taken under the conditions laid down in section II of the present
Article.
Where transfer is envisaged after four days have elapsed since
the initial decision to hold, the administrative authority shall
inform the President of the tribunal de grande instance or his
delegate at the time when it applies to them under the conditions
laid down in sections III and IV of the present Article.
In cases where authorisation has been given to prolong or renew
holding in the waiting zone, the administrative authority shall
inform the President of the tribunal de grande instance or his
delegate and State Counsel of the necessity of transferring the
alien to another waiting zone and carry out that transfer.
For the purpose of determining the length of a prolongation or
renewal of holding in the waiting zone, time shall continue to
run notwithstanding a transfer of the alien to another waiting
zone."
More precisely, the law of 27 December 1994 extended and relaxed
the rules introduced by the Law of 6 July 1992. The procedure laid
down in Article 35 quater of the 1945 Ordinance became applicable to
aliens arriving in France by rail. The railway stations concerned,
which must be "open to international traffic", are designated by an
order of the Minister of the Interior and the limits of waiting zones
are laid down by the State's representative in the département. In
addition, the waiting zone is no longer defined as a disembarkation and
control zone, exceptionally extended to immediately adjacent areas; it
can now include, either within the perimeter or close to the station,
port or airport, one or more places of accommodation providing aliens
with hotel-type services. Moreover, in order to avoid all confusion
between waiting zones as provided for in Article 35 quater of the
1945 Ordinance and the administrative detention centres mentioned in
Article 35 bis thereof, the Law of 27 December 1994 specifies that the
premises used for these two categories must be physically distinct and
separate.
6. The Decree of 15 December 1992
24. Decree no. 92-1333 of 15 December 1992 lays down the procedural
rules applicable to actions brought in accordance with
Article 35 quater of the Ordinance of 2 November 1945 and provides for
legal aid for aliens who are the subject of such proceedings.
Under this decree authorisation to hold an alien in the waiting
zone for more than four or twelve days (see paragraph 23 above) must
be sought from the President of the tribunal de grande instance having
jurisdiction, in a reasoned application, which must be dated, signed
and accompanied by all the relevant documents, from the head of the
immigration control service. He must inform the alien of his right to
choose a lawyer or have one assigned to him under the legal-aid scheme
if the alien so requests. The application and the accompanying
documents may be inspected by the alien's lawyer as soon as they are
received by the registry. They may also be inspected, before the
hearing, by the alien himself, who may be assisted by an interpreter
if he does not understand French sufficiently well.
7. The Decree of 2 May 1995
25. Decree no. 95-507 of 2 May 1995 lays down the conditions for
access by the HCR delegate or his representatives and by humanitarian
associations to the waiting zone of railway stations open to
international traffic, ports and airports, as defined by Article 35
quater of the Ordinance of 2 November 1945 (see paragraph 23 above).
In particular, it makes provision for representatives of the HCR
and humanitarian associations, whose access to the waiting zone is
conditional upon individual authorisation by the Minister of the
Interior, to hold confidential interviews with the persons held there,
and for these representatives and the Minister of the Interior to meet
once a year to discuss the way the waiting zones are run.
III. Work done by the Council of Europe
A. The Parliamentary Assembly's report of 12 September 1991 on
the arrival of asylum-seekers at European airports
26. On 12 September 1991 the Parliamentary Assembly of the Council
of Europe drew up a report on the arrival of asylum-seekers at European
airports. The report, which briefly surveyed the current situation in
six large European airports visited by its author, included the
following comments about Roissy-Charles-de-Gaulle Airport, Paris:
"Asylum-seekers present the request for asylum to border police
and the French Office for the Protection of Refugees and
Stateless Persons (Office français de protection des réfugiés et
apatrides (OFPRA)) decides on the refugee status.
Neither interpreters nor legal assistance are available for
asylum-seekers immediately after presenting the asylum request:
assistance is allowed only after entry into France.
Asylum-seekers are detained in a so-called international zone at
the airport, which means that they are not yet on French
territory and the French authorities are therefore not under a
legal obligation to examine the request as they would be if a
request was made by someone already on French territory. The
international zone has no legal background and must be considered
as a device to avoid obligations.
During detention, no access to social workers and in fact no
communication with the outside world exists. Moreover,
asylum-seekers do not always have access to telephones. On
permission from the border police, a chaplain can visit
asylum-seekers. No recreational or educational facilities are
put at the asylum-seekers' disposal.
No legal basis for detention exists and a maximum term is not
prescribed by law. The French authorities claim that
asylum-seekers stay in this zone for a maximum of one week and
that children are seldom held. Some asylum-seekers have claimed
to have spent six weeks waiting for the Ministry of the Interior
to decide whether their application is to be passed on to OFPRA
or whether they will be sent back.
Asylum-seekers in the international zone sleep on the floor and
on the plastic chairs. The airport provides them with meals and
there are a few showers for their use in the middle of the night
when they are not being used by others.
Due to lack of space at the airport itself, the international
zone is extended to one of the floors of the nearby Arcade
Hotel."
B. Recommendation No. R (94) 5 of the Committee of Ministers
on guidelines to inspire practices of the member States of
the Council of Europe concerning the arrival of
asylum-seekers at airports, of 21 June 1994
27. In a recommendation adopted on 21 June 1994 the Committee of
Ministers invited the member States of the Council of Europe to apply
the following guidelines:
"...
Taking into account that the particular position of
asylum-seekers at the airports may entail specific difficulties,
linked to the reception itself as well as the handling of their
requests;
Considering that, without prejudice to other principles
applicable in this field, guidelines based on the fundamental
principles in the field of human rights should inspire the
practices of member states with regard to the protection of
asylum-seekers at airports, and contribute to the development of
legislation and the establishment of an administrative
infrastructure concerning the reception of asylum-seekers in new
host countries,
...
3. ... each State preserves the possibility of sending an
asylum-seeker to a third country subject to respect to the
provisions of the Geneva Convention Relating to the Status of
Refugees, in particular its Article 33, and with respect to the
European Convention on Human Rights, in particular its Article 3
(art. 3).
...
5. The request shall be examined with all diligence required in
order not to prolong the stay of the applicant at the airport
beyond a period strictly necessary for the handling of such a
request.
...
9. When the asylum-seeker has to stay at the border pending a
decision, he or she shall be received and accommodated in an
appropriate place, whenever possible provided to that effect.
10. The asylum-seeker can be held in such a place only under the
conditions and for the maximum duration provided for by law.
..."
C. Report of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment of
4 June 1992
28. During its visit to France from 27 October to 8 November 1991 the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment ("the CPT") visited a number of
premises for the detention of aliens, including the border police posts
at Roissy-Charles-de-Gaulle Airport and the Hôtel Arcade.
In its report, adopted on 4 June 1992, it made the following
observations in particular:
"However, unlike the position where administrative detention
(rétention) is concerned, there seems to be no legislative
provision for any judicial supervision or statutory limit on the
length of time spent in the waiting zone in respect of persons
refused entry.
... on 1 October 1991 the Government set up a humanitarian aid
body - the International Migration Office ("the OMI").
The CPT wishes to emphasise how important it is that an effective
appeal should lie against any refusal of leave to enter,
particularly in order to protect the persons concerned against
the risk of being turned away to a State where there are serious
reasons to believe they might be subjected to ill-treatment.
Consequently, the CPT would like to be given information about
the possibility of appealing against a refusal of leave to enter.
In addition, it would like to have information about the average
length of time spent on premises where persons refused entry are
held and the exact role of the OMI."
29. On 19 January 1993 the French Government supplied the CPT with
the following information:
"...
2. The situation of persons refused entry: waiting zones in
ports and airports
2.1. The Law of 6 July 1992 on waiting zones in ports and
airports (Article 35 quater of the Ordinance of 2 November 1945,
as amended, see Appendix 10), as was mentioned in the general
remarks above, laid down very precise conditions for the holding
of an alien refused leave to enter the territory.
2.2. The enactment in question affords aliens a number of
safeguards concerning
(a) the length of time for which persons may be held in the
waiting zone: this is strictly supervised by the ordinary
courts and may not exceed the "reasonable" time prescribed
by law. A court order is needed where a person is to be
held for more than four days, and in no circumstances may
the twenty-day limit be exceeded. It should be noted in
this connection that the original period of twenty days
that could elapse before the ordinary courts intervened has
been reduced by this Law to four days only. In addition,
the total maximum period has been substantially reduced,
from thirty days to twenty days;
(b) the physical and legal conditions of holding in the
waiting zone: holding a person entails a reasoned written
decision of the head of immigration control, which must be
entered in a register, the immediate notification of State
Counsel and, after four days, a decision by the President
of the tribunal de grande instance, the right of those two
judicial officers to enter the waiting zone, the right to
communicate with any person of one's choice, the right to
assistance by an interpreter and a lawyer and the right to
legal aid.
3. Judicial supervision and the length of time for which a
person may be held in the waiting zone
3.1. As mentioned above, after four days a ruling must be given
by an ordinary court. It must reach its decision after
proceedings attended by all the safeguards expressly prescribed
by law, and authorisation to hold may not be given for a period
exceeding eight days. Exceptionally, the court may renew
authorisation for a further eight days. In either case, an
appeal against its decision will lie.
3.2. The practical effects of the Law, which came into force on
13 July 1992, can already be assessed. At the request of the
Minister of the Interior and Public Safety, a large number of
orders (nearly forty) demarcating waiting zones have been issued
by the prefects of the départements in which there are
international ports and airports.
3.3. As regards the time spent in the waiting zone, the two
categories of alien concerned should be distinguished.
3.4. Aliens refused entry and aliens whose journeys have been
interrupted (no papers):
3.5. Before the Law was passed the time aliens in this category
spent in the international zone was already less than four days.
The general average, which is still less than four days at each
of the checkpoints concerned, is now 1.8 days.
3.6. In that respect the Law on waiting zones has hardly
affected the length of time spent in them, as time is inevitably
needed to find a place on a departing plane or ship.
..."
PROCEEDINGS BEFORE THE COMMISSION
30. The applicants Mahad, Lahima, Abdelkader and Mohammed Amuur and
eighteen other Somali nationals applied to the Commission on
27 March 1992. They alleged breaches of Articles 3, 5, 6 and 13 of the
Convention (art. 3, art. 5, art. 6, art. 13).
31. On the same day the President of the Commission indicated to the
French Government, under Rule 36 of the Commission's Rules of
Procedure, that it was desirable, in the interest of the parties and
the proper conduct of the proceedings, to refrain from sending the
applicants back to Somalia before 4 April 1992. In addition, he asked
the French Government to supply certain information about what was
going to be done with them.
On 2 April 1992 the Commission repeated the above indication in
respect of those of the applicants who were still in France. Mahad,
Lahima, Abdelkader and Mohammed Amuur had already been sent back to
Syria on 29 March 1992.
32. On 18 October 1993 the Commission decided to strike out of its
list those parts of the application (no. 19776/92) submitted by the
other eighteen applicants, who had in the meantime been granted refugee
status. It declared admissible the complaint that holding Mahad,
Lahima, Abdelkader and Mohammed Amuur in the international zone of
Paris-Orly Airport constituted unlawful detention, contrary to
Article 5 para. 1 of the Convention (art. 5-1), and declared the
remainder of the application inadmissible. In its report of
10 January 1995 (Article 31) (art. 31) it concluded, by sixteen votes
to ten, that Article 5 (art. 5) was inapplicable and that there had
therefore been no breach of that provision (art. 5). The full text of
the Commission's opinion and of the dissenting opinion contained in the
report is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-III), but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
33. At the hearing the Government asked the Court to
"dismiss the application as inadmissible: in chief, because the
applicants [could] not claim to be victims of a violation of the
rights set forth in the Convention within the meaning of
Article 25 thereof (art. 25); in the alternative, because the
application [was] incompatible ratione materiae with the
provisions of Article 5 para. 1 of the Convention (art. 5-1)".
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
34. According to the Government, the applicants are not victims
within the meaning of Article 25 of the Convention (art. 25).
Invoking the subsidiary nature of the machinery set up by the
Convention, the Government argued that for an individual to claim to
be a victim of a violation of a right set forth in the Convention he
must first have given the domestic courts the opportunity to declare
that the alleged violation has occurred and to provide a remedy. As
the Créteil tribunal de grande instance had given judgment in the
applicants' favour on 31 March 1992, they could not reasonably maintain
that the remedy before that court was not effective on the ground that
the order under the expedited procedure had been made after they had
been sent back to Syria. Their lawyer should have applied to the court
earlier, the applicants having been in the transit zone since 9 March.
35. The Court notes that the Government raised this objection before
the Commission, not as a separate issue but as part of their arguments
concerning Article 5 (art. 5). It therefore considers that it has
jurisdiction to deal with it, although the Commission, which had
declared the complaint relating to that Article (art. 5) admissible,
did not rule on the objection when determining the question of
admissibility.
36. According to the Court's established case-law, the word "victim"
in the context of Article 25 (art. 25) denotes the person directly
affected by the act or omission in issue, the existence of a violation
of the Convention being conceivable even in the absence of prejudice;
prejudice is relevant only in the context of Article 50 (art. 50).
Consequently, a decision or measure favourable to the applicant is not
in principle sufficient to deprive him of his status as a "victim"
unless the national authorities have acknowledged, either expressly or
in substance, and then afforded redress for, the breach of the
Convention (see, among many other authorities, the Lüdi v. Switzerland
judgment of 15 June 1992, Series A no. 238, p. 18, para. 34).
It is true that in this case the Créteil tribunal de grande
instance ruled that holding the applicants in the transit zone at
Paris-Orly Airport was unlawful and ordered their release. However,
that decision was not made until 31 March, whereas the applicants had
been held in the transit zone since 9 March and, above all, had been
sent back to Syria on 29 March. As the applicants were not able to
secure the assistance of a lawyer before 24 March (see paragraph 8
above), it would have been almost impossible for them to apply to the
court any earlier.
With regard to the Government's argument that it was possible for
the applicants to obtain compensation for the prejudice they had
suffered, the Court considers that the haste with which they were sent
back made the prospects for the institution of proceedings to that end
unrealistic.
The objection must therefore be rejected.
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 (art. 5-1) OF THE
CONVENTION
37. According to the applicants, holding them in the international
zone at Paris-Orly Airport constituted deprivation of liberty contrary
to Article 5 para. 1 (f) of the Convention (art. 5-1-f), which
provides:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(f) the lawful arrest or detention of a person to prevent his
effecting an unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or
extradition."
A. Existence of a deprivation of liberty
38. The applicants complained of the physical conditions of their
"detention" in the transit zone. They maintained that these did not
comply with Resolution (73) 5 of the Committee of Ministers of the
Council of Europe on Standard Minimum Rules for the Treatment of
Prisoners, or the recommendations of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(see paragraph 28 above), or Recommendation No. R (94) 5 of the
Committee of Ministers of 21 June 1994 (see paragraph 27 above). In
addition, these conditions had been aggravated by the excessive length
of their "detention", which was a decisive factor for assessment of the
"deprivation of liberty" issue. They also emphasised that under the
relevant international conventions and national legislation they
should, as asylum-seekers, have enjoyed special protection and more
favourable treatment than unlawful immigrants. The detention of
asylum-seekers could not be justified unless their application for
asylum was considered manifestly ill-founded, which was clearly not so
in the applicants' case, as the other members of their family were
granted refugee status by the French Office for the Protection of
Refugees and Stateless Persons (see paragraph 11 above).
39. According to the Government, the applicants' stay in the transit
zone was not comparable to detention. They had been lodged in part of
the Hôtel Arcade where the "physical conditions" of the accommodation
were described as satisfactory even in the CPT's report. Their
separation from the hotel's other residents had been justified by the
concern to prevent them from evading surveillance by the airport and
border police and settling unlawfully in France. The original reason
why they were held and for the length of time they were held had been
their obstinacy in seeking to enter French territory despite being
refused leave to enter. They could not therefore "validly complain of
a situation which they had largely created", as the Court itself had
held in the Kolompar v. Belgium judgment of 24 September 1992 (Series A
no. 235-C).
40. While admitting that the applicants' stay in the international
zone was no different - when its length was taken into account - from
"detention" in the ordinary meaning of that term, the Commission
concluded that Article 5 (art. 5) was not applicable. It considered
that the degree of physical constraint required for the measure
concerned to be described as "deprivation of liberty" was lacking in
this case.
41. The Court notes in the first place that in the fourth
paragraph of the Preamble to its Constitution of 27 October 1946
(incorporated into that of 4 October 1958), France enunciated the right
to asylum in "the territories of the Republic" for "everyone persecuted
on account of his action in the cause of freedom". France is also
party to the 1951 Geneva Convention Relating to the Status of Refugees,
Article 1 of which defines the term "refugee" as "any person who [has
a] well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political
opinion".
The Court also notes that many member States of the Council of
Europe have been confronted for a number of years now with an
increasing flow of asylum-seekers. It is aware of the difficulties
involved in the reception of asylum-seekers at most large European
airports and in the processing of their applications. The report of
the Parliamentary Assembly of the Council of Europe, of
12 September 1991, is revealing on this point (see paragraph 26 above).
Contracting States have the undeniable sovereign right to control
aliens' entry into and residence in their territory. The Court
emphasises, however, that this right must be exercised in accordance
with the provisions of the Convention, including Article 5 (art. 5).
42. In proclaiming the right to liberty, paragraph 1 of Article 5
(art. 5-1) contemplates the physical liberty of the person; its aim is
to ensure that no one should be dispossessed of this liberty in an
arbitrary fashion. On the other hand, it is not in principle concerned
with mere restrictions on the liberty of movement; such restrictions
are governed by Article 2 of Protocol No. 4 (P4-2). In order to
determine whether someone has been "deprived of his liberty" within the
meaning of Article 5 (art. 5), the starting-point must be his concrete
situation, and account must be taken of a whole range of criteria such
as the type, duration, effects and manner of implementation of the
measure in question. The difference between deprivation of and
restriction upon liberty is merely one of degree or intensity, and not
one of nature or substance (see the Guzzardi v. Italy judgment of
6 November 1980, Series A no. 39, p. 33, para. 92).
43. Holding aliens in the international zone does indeed involve a
restriction upon liberty, but one which is not in every respect
comparable to that which obtains in centres for the detention of aliens
pending deportation. Such confinement, accompanied by suitable
safeguards for the persons concerned, is acceptable only in order to
enable States to prevent unlawful immigration while complying with
their international obligations, particularly under the 1951 Geneva
Convention Relating to the Status of Refugees and the European
Convention on Human Rights. States' legitimate concern to foil the
increasingly frequent attempts to circumvent immigration restrictions
must not deprive asylum-seekers of the protection afforded by these
conventions.
Such holding should not be prolonged excessively, otherwise there
would be a risk of it turning a mere restriction on liberty -
inevitable with a view to organising the practical details of the
alien's repatriation or, where he has requested asylum, while his
application for leave to enter the territory for that purpose is
considered - into a deprivation of liberty. In that connection account
should be taken of the fact that the measure is applicable not to those
who have committed criminal offences but to aliens who, often fearing
for their lives, have fled from their own country.
Although by the force of circumstances the decision to order
holding must necessarily be taken by the administrative or police
authorities, its prolongation requires speedy review by the courts, the
traditional guardians of personal liberties. Above all, such
confinement must not deprive the asylum-seeker of the right to gain
effective access to the procedure for determining refugee status.
44. The applicants arrived at Paris-Orly Airport from Damascus on
9 March 1992. They stated that they had fled their country of origin,
Somalia, because they had been persecuted by the regime in power and
their lives were in danger (see paragraph 7 above). As their passports
had been falsified, the airport and border police refused them leave
to enter French territory. They were then held in the airport's
transit zone (and its extension, the floor of the Hôtel Arcade adapted
for the purpose) for twenty days, that is to say until 29 March, when
the Minister of the Interior refused them leave to enter as
asylum-seekers (see paragraph 11 above). They were immediately sent
back to Syria without being able to make an effective application to
the authority having jurisdiction to rule on their refugee status (see
paragraph 9 above).
45. The Court notes that for the greater part of the above period the
applicants, who claimed to be refugees, were left to their own devices.
They were placed under strict and constant police surveillance and had
no legal and social assistance - particularly with a view to completing
the formalities relating to an application for political refugee status
- until 24 March, when a humanitarian association, which had in the
meantime been informed of their presence in the international zone, put
them in contact with a lawyer. Moreover, until 26 March neither the
length nor the necessity of their confinement were reviewed by a court
(see paragraph 10 above).
The applicants' lawyer applied on that date to the Créteil
tribunal de grande instance, which, in making an order under the
expedited procedure on 31 March (see paragraph 12 above), described the
applicants' confinement as an "arbitrary deprivation of liberty". In
a more general context, namely consideration of the constitutionality
of the Law of 6 September 1991, the Constitutional Council had already
noted on 25 February 1992 the restriction on personal liberty caused
by "the combined effect of the degree of restriction of movement
[holding an alien in the transit zone] entails and its duration" (see
paragraph 21 above). The period of confinement criticised by the
Constitutional Council on that occasion was equivalent to the length
of time the applicants were held.
46. In concluding that there was no deprivation of liberty, the
Government and the Commission attached particular weight to the fact
that the applicants could at any time have removed themselves from the
sphere of application of the measure in issue. More particularly, the
Government argued that although the transit zone is "closed on the
French side", it remains "open to the outside", so that the applicants
could have returned of their own accord to Syria, where their safety
was guaranteed, in view of the assurances which the Syrian authorities
had given the French Government. The Commission added that the
applicants had not shown that their lives or physical integrity were
in danger in Syria or that the French authorities had prevented them
from boarding a plane bound for that country.
47. The applicants maintained that such reasoning would amount to
binding the application of Article 5 (art. 5) to that of Article 3 of
the Convention (art. 3); this would be to ignore the specific object
of Article 5 (art. 5), and its wording, which had to be strictly
construed; it would also deprive Article 5 (art. 5) of any useful
effect, particularly with regard to asylum applications.
48. The mere fact that it is possible for asylum-seekers to leave
voluntarily the country where they wish to take refuge cannot exclude
a restriction on liberty, the right to leave any country, including
one's own, being guaranteed, moreover, by Protocol No. 4 to the
Convention (P4). Furthermore, this possibility becomes theoretical if
no other country offering protection comparable to the protection they
expect to find in the country where they are seeking asylum is inclined
or prepared to take them in.
Sending the applicants back to Syria only became possible, apart
from the practical problems of the journey, following negotiations
between the French and Syrian authorities. The assurances of the
latter were dependent on the vagaries of diplomatic relations, in view
of the fact that Syria was not bound by the Geneva Convention relating
to the Status of Refugees.
49. The Court concludes that holding the applicants in the transit
zone of Paris-Orly Airport was equivalent in practice, in view of the
restrictions suffered, to a deprivation of liberty. Article 5 para. 1
(art. 5-1) is therefore applicable to the case.
B. Compatibility of the deprivation of liberty found
established in the case with paragraph 1 of Article 5
(art. 5-1)
50. It remains to be determined whether the deprivation of liberty
found to be established in the present case was compatible with
paragraph 1 of Article 5 (art. 5-1). Where the "lawfulness" of
detention is in issue, including the question whether "a procedure
prescribed by law" has been followed, the Convention refers essentially
to national law and lays down the obligation to conform to the
substantive and procedural rules of national law, but it requires in
addition that any deprivation of liberty should be in keeping with the
purpose of Article 5 (art. 5), namely to protect the individual from
arbitrariness (see, among many other authorities, the Kemmache
v. France (no. 3) judgment of 24 November 1994, Series A no. 296-C,
pp. 19-20, para. 42).
In laying down that any deprivation of liberty must be effected
"in accordance with a procedure prescribed by law", Article 5 para. 1
(art. 5-1) primarily requires any arrest or detention to have a legal
basis in domestic law. However, these words do not merely refer back
to domestic law; like the expressions "in accordance with the law" and
"prescribed by law" in the second paragraphs of Articles 8 to 11
(art. 8-2, art. 9-2, art. 10-2, art. 11-2), they also relate to the
quality of the law, requiring it to be compatible with the rule of law,
a concept inherent in all the Articles of the Convention.
In order to ascertain whether a deprivation of liberty has
complied with the principle of compatibility with domestic law, it
therefore falls to the Court to assess not only the legislation in
force in the field under consideration, but also the quality of the
other legal rules applicable to the persons concerned. Quality in this
sense implies that where a national law authorises deprivation of
liberty - especially in respect of a foreign asylum-seeker - it must
be sufficiently accessible and precise, in order to avoid all risk of
arbitrariness. These characteristics are of fundamental importance
with regard to asylum-seekers at airports, particularly in view of the
need to reconcile the protection of fundamental rights with the
requirements of States' immigration policies.
51. The applicants asserted that their detention had no legal basis,
whether under the French legislation in force at the time or under
international law. They had found themselves in a legal vacuum in
which they had neither access to a lawyer nor information about exactly
where they stood at the time. In support of the above argument, they
rely on the reasons for the judgment of the Créteil tribunal de grande
instance, ruling on their application for an order under the expedited
procedure.
52. The Court notes that even though the applicants were not in
France within the meaning of the Ordinance of 2 November 1945, holding
them in the international zone of Paris-Orly Airport made them subject
to French law.
Despite its name, the international zone does not have
extraterritorial status. In its decision of 25 February 1992 the
Constitutional Council did not challenge the legislature's right to lay
down rules governing the holding of aliens in that zone. For example,
the Law of 6 July 1992 (see paragraph 23 above) provides, inter alia,
for the intervention of the ordinary courts to authorise holding for
more than four days, the assistance of an interpreter and a doctor and
the possibility of communicating with a lawyer. The Decree of
15 December 1992 (see paragraph 24 above) lays down the procedural
rules applicable to proceedings brought in accordance with that Law.
The Decree of 2 May 1995 (see paragraph 25 above) gives the delegate
of the United Nations High Commissioner for Refugees or his
representatives and humanitarian associations permanent access to the
zone.
However, these rules - which postdate the facts of the case -
were not applicable at the time to the applicants.
53. The Court emphasises that from 9 to 29 March 1992 the applicants
were in the situation of asylum-seekers whose application had not yet
been considered. In that connection, neither the Decree of 27 May 1982
nor the - unpublished - circular of 26 June 1990 (the only text at the
material time which specifically dealt with the practice of holding
aliens in the transit zone) constituted a "law" of sufficient "quality"
within the meaning of the Court's case-law; there must be adequate
legal protection in domestic law against arbitrary interferences by
public authorities with the rights safeguarded by the Convention (see
the Malone v. the United Kingdom judgment of 2 August 1984, Series A
no. 82, p. 32, para. 67). In any event, the Decree of 27 May 1982 did
not concern holding aliens in the international zone. The
above-mentioned circular consisted, by its very nature, of instructions
given by the Minister of the Interior to Prefects and Chief Constables
concerning aliens refused leave to enter at the frontiers. It was
intended to provide guidelines for immigration control at ports and
airports. Moreover, the brief section it devoted to holding in the
international zone and aliens' rights contains no guarantees comparable
to those introduced by the Law of 6 July 1992. At the material time
none of these texts allowed the ordinary courts to review the
conditions under which aliens were held or, if necessary, to impose a
limit on the administrative authorities as regards the length of time
for which they were held. They did not provide for legal, humanitarian
and social assistance, nor did they lay down procedures and time-limits
for access to such assistance so that asylum-seekers like the
applicants could take the necessary steps.
54. The French legal rules in force at the time, as applied in the
present case, did not sufficiently guarantee the applicants' right to
liberty.
There has accordingly been a breach of Article 5 para. 1
(art. 5-1).
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
55. Under Article 50 of the Convention (art. 50),
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
A. Damage
56. The applicants claimed to have suffered prejudice on account of
their unlawful detention, which they assessed - on the basis of the
French Court of Cassation's case-law on this subject - at 80,000 French
francs (FRF), that is FRF 1,000 each per day of detention. In addition
to that sum they claimed damage resulting from the fact that it was
impossible for them to gain access to the procedure for obtaining
refugee status and from loss of the opportunity to have that status
recognised, justifying the award of a lump sum of FRF 120,000.
57. The Government argued that the applicants' claims should be
dismissed.
58. According to the Delegate of the Commission, only the first
request should be granted by the Court, if it saw fit. As regards the
second request, since the right to reside in the territory of a
Contracting State, and more particularly the right to obtain political
asylum there, was not guaranteed by the Convention, there could be no
loss of opportunity.
59. Having regard to the particular circumstances of the case, the
Court considers that the finding of a violation of Article 5 (art. 5)
in itself constitutes sufficient just satisfaction.
B. Costs and expenses
60. In respect of the costs and expenses incurred in the proceedings
in the Créteil tribunal de grande instance and then before the
Convention institutions, the applicants claimed the sum of FRF 57,000,
not including value-added tax (VAT).
61. The Government did not comment; the Delegate of the Commission
left this question to the Court's discretion.
62. Having regard to its case-law on the question, and making its
assessment on an equitable basis, the Court fixes the amount to be paid
for costs and expenses, including VAT, at FRF 57,000, less the
FRF 9,758 paid by the Council of Europe in legal aid.
C. Default interest
63. According to the information available to the Court, the
statutory rate of interest applicable in France at the date of adoption
of the present judgment is 6.65% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that Article 5 para. 1 of the Convention (art. 5-1) applies
in the case and has been breached;
3. Holds that this judgment in itself constitutes sufficient just
satisfaction for the alleged prejudice;
4. Holds that the respondent State is to pay to the applicants,
within three months, 57,000 (fifty-seven thousand) French francs,
including VAT, less 9,758 (nine thousand seven hundred and
fifty-eight) French francs, for costs and expenses and that
simple interest at an annual rate of 6.65% shall be payable from
the expiry of the above-mentioned three months until settlement;
5. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 25 June 1996.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar