CASE OF SULTANI v. FRANCE [Extracts]
Remainder inadmissible;No violation of Art. 3;No violation of P4-4
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa
7. The applicant was born in 1985 and lives in Paris. 8. The applicant comes from the Afghan province of Baghlan and is a member of the Tajik ethnic group. His family were land-owning farmers. His father was a member of the communist party and was a party representative in Ghuri. After the fall of the communist regime of Mohamad Najibullah, this political involvement by a Tajik was regarded as high treason. In particular, the applicant’s family faced hostility from a former warlord who had gone on to become a prominent local figure, Arab Nourak. The latter, a Pashtun and a former member of Jamiat-e Islami (an Islamic political party), appropriated the family’s possessions in 1992. At the end of 1992 a grenade was thrown into the applicant’s family home, and he sustained injuries to the head and thigh. The applicant claimed to have scars on his body as a result of that event. His father allegedly received a knee injury. The case file included a medical certificate drawn up on 7 April 2006 by a doctor at the Medical Committee for Exiles at the Bicêtre Hospital, Paris, who concluded: “... Mr Sultani informs me that he is from the Baghlan region. Following a conflict between his father and a local chief, a grenade was thrown at the family home. Mr Sultani states that he sustained injuries to the head and left thigh. In the course of the examination, several scars on the left parietal area of the scalp and a scar covering about a third of the outer left thigh were found. ... The findings of the clinical examination are compatible with the patient’s statements.” 9. The applicant and his family left Afghanistan for Pakistan, staying first in Sorkhab, then in Quetta. 10. The applicant claimed that he arrived in France in December 2002. On 25 March 2003 he applied for asylum. By a decision of 6 August 2003, the French Office for the Protection of Refugees and Stateless Persons (“the OFPRA”) refused his application on the following grounds: “The applicant, who was questioned at the Office, referred to land disputes between his father and a local commander and stated that he had been obliged to leave his country of origin in 1991 or 1992. He initially lived in a camp on the Afghan-Pakistani border for several years before settling with his family in Quetta. Even supposing they were substantiated, and given the grounds having occasioned them, the time that has elapsed and the political changes that have since occurred in Afghanistan, the circumstances described cannot, however, justify the applicant’s refusal to return and to claim protection from the current authorities in his country of origin.” 11. That decision was upheld on 13 May 2004 by the Refugee Appeals Board. On 5 July 2004 the applicant was directed to leave French territory. 12. In December 2004 the applicant’s family was repatriated from Pakistan to their village of origin. They again encountered hostility from Arab Nourak who, supported by the new governor of Baghlan Province (also a member of a radical Islamic party and, like Mr Nourak, an ethnic Pashtun), refused to return their land. According to the applicant, his family were again obliged to seek refuge in the Pakistani town of Quetta. The applicant alleged that he had heard nothing from his relatives since that time. 13. In the light of those events, the applicant alleged that he had intended to lodge a fresh application for asylum in France, but that he had been waiting to obtain further news from his family. 14. On 21 September 2005 the applicant was arrested at the Square de Verdun in Paris, a place where Afghan nationals newly arrived in France frequently gathered. He was released on that occasion. 15. On 14 December 2005 he was again arrested at the same location with other Afghan nationals. He alleged that the French police had carried out targeted arrests based on the nationality of those concerned, with a view to organising a “grouped flight” to deport them. 16. On the same day he was made the subject of a prefectoral removal order, of a decision stipulating the country of destination and of an administrative detention order. 17. The applicant applied to the Paris Administrative Court to have set aside the prefectoral order of 14 December 2005 and the separate decision naming Afghanistan as the country of destination. By a judgment of 17 December 2005, the judge appointed by the President of the Administrative Court dismissed the applicant’s request. The applicant appealed to the Paris Administrative Court of Appeal. 18. On 16 December 2005, during a hearing with the liberties and detention judge at the Paris tribunal de grande instance, the applicant stated: “I do not wish to return to my country of origin because I am afraid for my life. I have new information to include in my request for political asylum. I would like to see a doctor.” 19. In an order issued on the same date, the liberties and detention judge ordered that the administrative detention be extended by fifteen days, until 5 p.m. on 31 December 2005. The judge also noted: “the detainee raised complaints of a medical nature... and requested political asylum; ... We order that the detainee be examined by a doctor from the forensic medicine unit at the Hôtel Dieu Hospital in order to determine whether his state of health is compatible with the detention and expulsion order.” 20. On 19 December 2005 the applicant and three other Afghan nationals (G., S. and D.) lodged an application with the Court, together with a request for application of Rule 39 of the Rules of Court. 21. On 20 December 2005 the Paris Police Commissioner’s Office informed the applicant that he had been refused leave to remain, in a document dated 16 December 2005 and worded as follows: “You were arrested on 14 December 2005 and found to be in contravention of the legislation on aliens; you have now requested that your application for asylum be re-examined. This request, submitted out of time and in support of your [continued] detention, is clearly intended to circumvent an order for removal from French territory. In consequence, and in accordance with Articles L. 742-3, L. 742-6 of the Code on the conditions of entry and residence of aliens and the right of asylum, I refuse to grant you leave to remain. ... The re-examination of your request for refugee status will therefore be given priority treatment by the French Office for the Protection of Refugees and Stateless Persons under Articles L. 313-3, L. 313-5, L. 313-6, L. 313-7, L. 313-8, L. 313-9, L. 313-10 of the above-mentioned Code. Finally, an administrative measure of expulsion by prefectoral order may be taken in application of Articles L. 511-1 and L. 512-1 of the above-mentioned Code; however, this may not be enforced prior to the Office’s decision (Article L. 741-5 of the above-mentioned Code).” 22. On the same date the acting President of the Second Section decided to indicate to the French Government, under Rule 39 of the Rules of Court, that it was desirable to refrain from deporting the applicant to Afghanistan. He also invited the Government to keep the Court informed of the applicant’s situation with regard to the proceedings on his asylum application and the medical examination ordered by the liberties and detention judge. In reply, the Government indicated that the applicant had been released from the Vincennes Administrative Detention Centre on 21 December 2005 and was free to circulate on French territory. 23. On 20 December 2005 a grouped flight left France for Afghanistan. 24. On 5 January 2006 the Court decided to extend the interim measure indicated under Rule 39 until further notice. 25. On 6 January 2006 the prefecture summoned the applicant to an interview, scheduled for 13 January, to examine his administrative situation with a view to enforcement of the removal measure. 26. On 9 January 2006 the OFPRA registered a second asylum application from the applicant. On 10 January 2006 the Director General of the OFPRA refused it on the following grounds: “In support of his application, Mr Noor Mohammad SULTANI Refers to the general situation in Afghanistan. In itself, however, this evidence is not sufficient to substantiate the fears of persecution or the existence of serious threats within the meaning of Articles L. 711-1 and L. 721-1 of the Code on the conditions of entry and residence of aliens and the right of asylum. Accordingly, it is not admissible. He submits a statement from an association for refugees. This, however, is a new item of evidence which refers to events that were previously argued. Accordingly, it is not admissible. He further claims that his family has again been persecuted by the henchmen of Arab Nourak, an influential local military leader in the Baghlan region, since their return to the Afghan territory. It is claimed that a cousin is currently being detained. However, the applicant’s statements, which are brief and vague, are not supported by any credible or decisive evidence capable of proving that the alleged facts are true and that his fears are well-founded.” 27. On 10 February 2006 the applicant appealed against that decision to the Refugee Appeals Board. 28. On 22 March and 11 May 2006 the applicant submitted the additional information requested by the Court and confirmed that he wished to pursue the application. 29. On 4 July 2006 the Paris Administrative Court of Appeal dismissed the applicant’s appeal against the Paris Administrative Court’s judgment of 17 December 2005. It found, inter alia: “On the lawfulness of the removal order: ... Firstly, contrary to what is alleged by Mr Sultani, the expulsion order dated 14 December 2005, which sets out the considerations of law and of fact on which it is based, is supported by sufficient grounds; the prefect, who indicated that the appellant’s situation had been scrutinised, particularly with regard to his right to family life, examined the appellant’s personal situation; Secondly, the disputed removal order, the sole purpose of which is the removal from the territory of Mr Sultani, is not collective in nature; in any event, it does not therefore contravene the requirements of Article 4 of Protocol No. 4 to the European Convention on Human Rights ... which prohibits collective expulsions; nor can Mr Sultani validly rely either on the provisions of Article 6 of the Convention ..., which are not applicable to appeal judgments against removal orders, or on the provisions of Article 1 of Protocol No. 7 to the said Convention, published by decree of 24 January 1989, which are applicable only to aliens residing lawfully on the territory of a State; On the lawfulness of the additional decision naming the country of destination: Mr Sultani’s request for political asylum has been ... refused by decisions of the French Office for the Protection of Refugees and Stateless Persons and the Refugee Appeals Board; his second request for asylum, submitted on 9 January 2006, was rejected by a new decision by the Office on 10 January 2006; although Mr Sultani refers to the risk that he would run in the event of a return to Afghanistan, given the situation of civil war that exists in that country, that circumstance is not in itself capable of substantiating the risks alleged by the appellant in the event of return to his country of origin; he has not submitted any evidence concerning his personal situation which would make it possible to consider as substantiated [his argument] that there are circumstances which would constitute a legal impediment to expulsion to his country of origin; ...” ...