Last Updated on November 4, 2019 by LawEuro
Information Note on the Court’s case-law 215
February 2018
M.A. v. France – 9373/15
Judgment 1.2.2018 [Section V]
Article 34
Hinder the exercise of the right of application
Expedited execution of expulsion order before interim measure restraining it could be notified to the authorities: failure to comply with Article 34
Article 3
Expulsion
Removal to Algeria of person convicted by French courts of terrorist offence: violation
Facts – In 2006 the applicant, an Algerian national, was sentenced to seven years’ imprisonment for involvement in a criminal conspiracy to commit acts of terrorism (the offences charged had been committed in several countries, including France and Algeria), and was made the subject of a permanent exclusion order from French territory. In 2010 he was placed under house arrest pending the enforcement of the latter additional penalty, which he unsuccessfully applied to have lifted. In 2014 he lodged an asylum application, which was rejected by the French Office for the Protection of Refugees and Stateless Persons (OFPRA) on 17 February 2015. The applicant was not informed of the rejection of his application until 9.20 a.m. on 20 February 2015 and was returned to Algeria on a flight departing at 4.00 p.m. Shortly beforehand his lawyer obtained an interim measure from the European Court indicating that the French authorities should suspend the expulsion, but the information arrived at the airport too late. The applicant was arrested on his arrival in Algeria and then placed in detention pending the commencement of criminal proceedings.
Law
Article 3: As regards the situation in Algeria, there was no new evidence to cast doubt on the conclusions reached by the Court in Daoudi v. France (19576/08, 3 December 2009, Information Note 125) in the light of the concurring reports of the United Nations Committee Against Torture and several non-governmental organisations, particularly in connection with persons suspected of involvement in international terrorism.
Furthermore, the applicant was not merely “suspected” of having links with terrorism but had actually been convicted in France of serious offences of which the Algerian authorities had been apprised. Consequently, at the time of the applicant’s expulsion to Algeria there had been a genuine and serious risk that he would be exposed to treatment contrary to Article 3 of the Convention.
Clearly, it was astonishing that the applicant had waited almost fourteen years before applying for refugee status; however, that waiting period was not included among the facts on which OFPRA, which was better placed to assess the applicant’s conduct, had based its decision.
Nor did the Court accept the Government’s plea, in the absence of all the detailed information required to evaluate its importance, that other persons convicted of terrorist offences had been expelled to Algeria without any allegations of a risk under Article 3.
Conclusion: violation (six votes to one).
Article 34: Although it might be necessary for the competent authorities to implement an expulsion order expeditiously and efficiently, the conditions for such enforcement should not be geared to depriving the expellee of the right to request the indication of an interim measure from the Court.
In the present case the French authorities had created conditions making it very difficult for the applicant to submit such a request in time: he had not been notified of the 17 February 2015 decision rejecting his asylum application until 20 February, the day of his expulsion; his transport had already been organised on 18 February; and a laissez-passer had been obtained from the Algerian authorities on 19 February. Those preparations had enabled the applicant to be expelled to Algeria barely seven hours after the notification of the decision establishing the country of destination.
In so doing the authorities had deliberately and irreversibly reduced the level of protection of the Convention rights, compliance with which the applicant had been seeking to ensure by applying to the Court. The authorities’ action had rendered nugatory any finding of a possible breach of the Convention, since the applicant was now in a country which was not a party to that instrument.
Conclusion: failure to comply with Article 34 (six votes to one).
Article 46: Having regard to the fact that the applicant was now under the jurisdiction of a State which was not a party to the Convention, it was incumbent on the French Government to make all possible representations in order obtain from the Algerian authorities a practical and specific assurance that the applicant had not been and would not be subjected to treatment contrary to Article 3 of the Convention.
Article 41: finding of a violation sufficient in itself in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
Leave a Reply