CASE OF H.L.R. v. FRANCE
No violation of Art. 3 (in case of expulsion to Colombia)
R. Pekkanen
8. H.L.R., who is a Colombian national and was born in 1968, is currently in France subject to a compulsory residence order. 9. On 14 May 1989 the applicant, who was travelling from Colombia to Italy, was arrested while in transit at Roissy Airport in possession of a package containing 580 grammes of cocaine. According to the record of the interviews that took place on 16 May 1989, whilst he was in police custody H.L.R. supplied information on the instigators of the traffic and on H.B., by whom he had been recruited. That information subsequently enabled Interpol to identify H.B., who appeared in their records under two different names and had been arrested on 21 May 1989 at Frankfurt-on-Main Airport in possession of 552 grammes of cocaine. H.B. was convicted and on 23 January 1990 was sentenced by the Frankfurt-on-Main Regional Court to two years and eight months’ imprisonment; he was deported to Colombia pursuant to an order issued on 12 April 1990 by the Chief Administrative Officer (Landrat) of the district (Landkreis) of Darmstadt-Dieking. 10. In the meantime, on 25 September 1989, the Bobigny Criminal Court had convicted the applicant of an offence under the misuse of drugs legislation and sentenced him to five years’ imprisonment. It also made an order permanently excluding him from French territory. 11. On 24 July 1992 the Paris Court of Appeal upheld both that judgment and the judgment of 22 June 1992 of the same court whereby his application to have the permanent exclusion order cancelled was dismissed. 12. On 31 July 1992 the applicant, arguing in particular that he had assisted the judicial authorities, petitioned the President of the Republic to have the exclusion order rescinded. His petition was dismissed on 20 September 1994. 13. On 18 December 1992 the Bobigny public prosecutor, who had initially instructed the Prefect of the Dordogne département to enforce the exclusion order on 30 December, the date of the applicant’s release, ordered that his deportation be stayed. 14. After serving his sentence, the applicant was given accommodation, at the home of one of his prison visitors. 15. Notwithstanding that the petition to the President was pending, the Minister of the Interior directed that the applicant’s file be submitted to the Aliens’ Deportation Board for an opinion in accordance with section 23 of the Ordinance of 2 November 1945 as amended (see paragraph 24 below). 16. On 17 February 1994, having been informed of the risks the applicant would run if he were deported to Colombia, the Aliens’ Deportation Board expressed the following opinion: "The Board is of the opinion that [H.L.R.] should not be deported as his presence in France does not constitute a serious threat to public order and there are in addition good reasons for believing that his integration in the national community is possible." 17. On 26 April 1994 the Minister of the Interior nonetheless issued an order for the applicant’s deportation. He relied on the following reasons: "Whereas Mr H.L.R., a Colombian national, ..., committed a drugs offence in 1989 by illegally importing nearly 600 grammes of heroin [sic]; Whereas on account of his general behaviour the presence of this foreign national in French territory represents a serious threat to public order; Having regard to the opinion issued on 17 February 1994 by the Board referred to in section 24 of the Ordinance [no. 45-2658 of 2 November 1945, as amended, concerning the conditions of entry and residence of aliens in France]." 18. The Prefect of the Dordogne département served the deportation order on the applicant by a letter of 9 May 1994, which the applicant received on 20 May. He stated that the applicant was to be deported to Colombia, unless he was accepted by another country, within one month of the date of receipt of the letter. On 20 June 1994 the Prefect granted the applicant a final extension of one month in which to find a host country. 19. On 30 May 1994 the applicant applied to the Minister of the Interior to have the deportation order rescinded. His application was rejected on 17 June 1994 on the following grounds: "I regret [to have] to inform you that, at the present time, in spite of the various considerations you cite in your client’s favour, it is impossible for me to grant your application because the acts which gave rise to the order for your client’s deportation occurred recently and were serious. In 1989 he was involved in the trafficking of almost 600 grammes of heroin [sic]. Consequently his presence in France continues to constitute a serious threat to public order." 20. At the same time, by applications lodged with the Bordeaux Administrative Court and registered on 7 and 28 June 1994 the applicant sought judicial review of the deportation order and of the refusal to rescind it. 21. In its judgment of 18 April 1996 served on 17 July 1996, the court joined and then dismissed the applications. It gave the following reasons: "Under the final paragraph of section 27 bis of the Ordinance of 2 November 1945, `an alien shall not be sent to a country if he shows that he is in danger of losing his life or his liberty there or that he will be exposed there to treatment contrary to Article 3 (art. 3) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950’; by virtue of the provisions of Article 2 (art. 2) of the European Convention on Human Rights, `1. Everyone’s right to life shall be protected by law ...’ and of Article 3 of that Convention (art. 3): `No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’; the impugned deportation order of 26 April 1994 did no more than enjoin [Mr H.L.R.] to leave French territory; it follows that, in any event, the submission that his return to Colombia would infringe the provisions cited above (art. 2, art. 3) is ineffective. ... [Mr H.L.R.] is single, has no children and no family life in France; it follows that the submission that the provisions [of Article 8 (art. 8) of the Convention for the Protection of Human Rights and Fundamental Freedoms] have been infringed cannot be accepted." 22. On 10 September 1996 the applicant appealed against that judgment to the Bordeaux Administrative Court of Appeal. The outcome of the appeal is not known. 23. In the meantime, the Minister of the Interior had issued a compulsory residence order on 12 July 1994 pursuant to section 28 of Ordinance no. 45-2658 of 2 November 1945 as amended (see paragraph 24 below). Considering that it had been established that the applicant was unable to leave France at that time, the Minister ordered him to reside in a designated location "until such time as he [was] in a position to comply with the deportation order against him". That position has remained unchanged. 24. The applicant’s deportation is governed by Ordinance no. 45-2658 of 2 November 1945 "on the conditions of entry and residence [of aliens] in France", as amended by Law no. 93-1027 of 24 August 1993. The relevant provisions, in the wording applicable at the date of the impugned decision, are as follows: "Subject to the provisions of section 25, deportation may be decided by order of the Minister of the Interior if an alien’s presence on French territory constitutes a serious threat to public order. The deportation order may at any time be rescinded by the Minister of the Interior. Where the application for an order to be rescinded is made on the expiry of a period of five years from the actual execution of the deportation order, it may be rejected only after the opinion of the board provided for in section 24, before which the applicant may be represented, has been obtained. ..." "Deportation as provided for in section 23 may be ordered only where the following conditions are satisfied: (1) The alien must be given advance notice in accordance with the conditions laid down in a decree of the Conseil d’Etat; (2) The alien shall be summoned to be interviewed by a board convened by the prefect and composed as follows: the president of the tribunal de grande instance of the administrative capital of the département or a judge delegated by him, chairman; a judicial officer (magistrat) designated by the general assembly of the tribunal de grande instance of the administrative capital of the département; and an administrative court judge. The head of the aliens’ department at the prefecture shall act as rapporteur; the director of health and social affairs of the département or his representative shall be heard by the board. They shall not attend the board’s deliberations. The summons, which must be served on the alien at least fifteen days before the board’s meeting, shall inform him that he has the right to be assisted by a lawyer or by any other person of his choice and to be heard with the help of an interpreter. The alien may request legal aid in accordance with Law no. 91-647 of 10 July 1991 on legal aid. Reference shall be made to this possibility in the summons. A provisional grant of legal aid may be decided by the chairman of the board. The board’s hearing shall be public. The chairman shall ensure the proper conduct of the proceedings. All orders made by him to that end must be executed immediately. Before the board the alien may put forward all the reasons that militate against his deportation. A report recording the alien’s statements shall be transmitted, together with the board’s opinion, to the Minister of the Interior, who shall give a decision. The board’s opinion shall also be communicated to the person concerned." "A deportation order made under section 23 may not be issued against the following persons: (1) a minor alien under 18 years of age; (2) an alien who proves by any means that he has habitually resided in France since the age of 6 or younger; (3) an alien who proves by any means that he has habitually resided in France for more than fifteen years or an alien who has lawfully resided in France for more than ten years, unless for the whole of this period he has been in possession of a temporary residence permit bearing the word ‘student’; (4) an alien, who has been married for at least one year and whose spouse is a French national provided that they have not ceased to live together and that the spouse has kept his or her French nationality; (5) an alien who is the father or the mother of a French child residing in France provided that he or she exercises parental rights, even only on a partial basis, in respect of the child or actually provides for him or her; (6) an alien who is in receipt of an industrial accident or occupational disability pension paid by a French institution where his or her permanent disability is at least 20%; (7) an alien residing lawfully in France by virtue of one of the residence permits provided for in this Ordinance or in the international agreements, who has not been sentenced with final effect to a non-suspended term of imprisonment of one year or more. However, by way of derogation to (7) above, an alien may be expelled if he has been sentenced with final effect to a non-suspended term of imprisonment for an offence under section 21 of this Ordinance, sections 4 and 8 of Law no. 73-548 of 27 June 1973 on multiple occupation, Articles L-362-3, L-364-2-1, L-364-3 and L-364-5 of the Labour Code or Articles 225-5 to 225-11 of the Criminal Code. The aliens referred to in sub-paragraphs (1) to (6) may not be the subject of a removal order made under section 22 of this Ordinance. By way of derogation from the provisions of this section, a deportation order under sections 23 and 24 may be made against an alien falling within one of the categories listed in sub-paragraphs (3), (4), (5) and (6) if he or she has been sentenced with final effect to a non-suspended term of imprisonment of at least five years." "An alien who is the subject of a deportation order or who has to be removed from France shall be sent to: (1) the country of which he is a national unless the French Office for the Protection of Refugees and Stateless Persons or the Refugee Appeals Board has granted him refugee status or has not yet ruled on his application for asylum; or (2) a country which has delivered him a travel document which is currently valid; or (3) a country which he may lawfully enter. An alien shall not be sent to a country in which he shows that there is a danger that he will lose his life or liberty or that he will there be exposed to treatment contrary to Article 3 (art. 3) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950." "An alien subject to a deportation order or required to leave France who proves that it is impossible for him to leave France by showing that he can neither return to his country of origin nor travel to any other country may, by way of derogation from section 35 bis, be ordered to reside in a designated location where he must report to the police and the gendarmerie at regular intervals."