CASE OF A.B. AND OTHERS v. FRANCE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
6. The applicants were born in 1978, 1980 and 2007 respectively. 7. They fled Armenia on account of fears of persecution related to the first applicant’s activity as a journalist and his political activism. 8. After arriving in France on 4 October 2009 they filed applications for asylum, which were rejected by the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugiés et apatrides – OFPRA), on 21 December 2009, then by the National Asylum Court (Cour nationale du droit d’asile – CNDA), on 28 February 2011. Their subsequent requests for re-examination were also rejected. 9. On 3 May 2011 the prefect of Loiret issued orders rejecting the applicants’ requests for leave to remain and obliging them to leave French territory. On 18 October 2011 the Orleans Administrative Court, on an appeal from the applicants, refused to overturn those orders. 10. The first applicant was arrested by the police in connection with a theft on the evening of 16 February 2012 and was taken into police custody that same day. The second and third applicants were arrested the next day at the reception centre for asylum seekers (Centre d’accueil des demandeurs d’asile – CADA) at Chaingy, where the family had been living. The applicants were taken that same day to the administrative detention centre (Centre de rétention administrative – CRA) of Toulouse-Cornebarrieu. The detention orders in respect of the first two applicants read as follows: “Whereas the immediate enforcement of the [order to leave France] is not possible on account of the organisation of [their] departure for [their] country of origin. Whereas [the applicants] [have] not presented sufficient guarantees that [they] will not abscond, not having a valid passport, [having] neither a fixed abode nor sufficient resources, not [having] complied with the previous removal directions issued to [them] and [having] formally opposed, when interviewed, [their] return to [their] country of origin.” 11. The first two applicants challenged their detention orders and in parallel lodged an urgent application for a stay of execution. They claimed that they had a fixed addressed at the reception centre (CADA), that a friend was prepared to accommodate them and that, in any event, their detention would be incompatible with the best interests of their child. In this connection they indicated that their child, who was too young to be left on his own, was obliged to accompany them in all their administrative formalities and therefore to come into contact with armed police officers in uniform. 12. On 21 February 2012 the President of the Toulouse Administrative Court dismissed the urgent application without a hearing, finding as follows: “Under the [domestic statutory] provisions, the legality of decisions ordering administrative detention in connection with removal measures can be challenged fully through a specific procedure, which itself has the nature of an urgent procedure, separately from the remit of the urgent applications judge ...; it follows therefrom that the applicants’ request for that judge to order ... the stay of execution of the detention orders made for the purpose of enforcing the removal directions, a stay which would in fact have an equivalent effect to that of the annulment of the same decision on the merits, is inadmissible.” 13. On the same day, the Toulouse Administrative Court dismissed the application lodged by the first two applicants for the annulment of the administrative detention order, on the following grounds: “It is not in dispute that [the applicants] cannot present any valid identity or travel document; although [they claim] that [they] have a fixed address in an asylum-seekers’ reception centre, it can be seen from the evidence in the file that this centre asked [them] to vacate the premises, where [they have] unduly remained since June 2011; nor [have] the [applicants] adduced evidence of lawful income; lastly, since the notification of the judgment of the Orléans Administrative Court of 18 October 2011 dismissing [their] application against the order of the prefect of Loiret of 2 May 2011, [the applicants] [have] avoided the said removal measure; under those circumstances, the choice of the administrative authority to place [them] in administrative detention instead of ordering a measure of restricted residence ... is not vitiated by a manifest error of judgment.” Responding more specifically to the argument raised by the applicants concerning the child’s best interests, the Administrative Court found it to be inapplicable, as the decisions appealed against pertained only to the parents’ personal situation. 14. The prefect asked the Liberties and Detention Judge of the Toulouse tribunal de grande instance to extend the detention, after which the first two applicants tried to obtain the third applicant’s voluntary intervention in the proceedings. On 22 February 2012 that judge authorised the extension of the applicants’ detention for a period of twenty days, after finding inadmissible the request for voluntary intervention on behalf of the child, and having dismissed the argument that the conditions of detention were incompatible with the presence of a minor child, on the following grounds: “It is not for the judicial authority to interfere in the running of an administrative detention centre”. 15. That decision was upheld on 24 February 2012 by the President of the Toulouse Court of Appeal, who found in particular as follows: “... the administrative detention centre of Cornebarrieu, where the child is held, has been authorised to receive families and contains all the necessary facilities to ensure the comfort of a family with children. Thus the whole family is together and they have, in an autonomous area and separated from the rest of the detainees, rooms for them alone and for their exclusive use. In addition, there is a playground on the site, like those to be found in town squares. Lastly, a doctor and a nurse are available every day in the Toulouse administrative detention centre and Mr and Mrs A.B. have not shown that they met with a refusal when they asked to present their child – a request of which the existence has not been established. The Convention provisions, especially Article 8, do not therefore appear to have been breached.” 16. On 24 February 2012 the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the detention orders concerning them. On 29 February 2012 the Court decided not to indicate the requested interim measure. 17. On 5 March 2012 the applicants were released, after expressing their wish to return to Armenia, and after seeking voluntary return assistance for that purpose. However, they did not leave France, on account of the third applicant’s state of health. On 13 July 2012 the first applicant was granted leave to remain as the parent of a sick child. 18. In two judgments of 15 November 2012, the Bordeaux Administrative Court of Appeal annulled the administrative detention orders of 17 February 2012 in respect of the first two applicants. Its judgments contained the same wording for each spouse: “4. Article L. 561-2 of the Entry and Residence of Aliens and Right of Asylum Code provides, by way of exception to the cases where a foreign national may be placed in detention, the possibility of ordering a measure of restricted residence (assignation à résidence) if the alien can present guarantees to allay the risk of non-compliance with his or her obligation to leave France. Under provision 3o of part II of Article L. 511-1 of the same Code, such risk must in particular be regarded as established, save in specific circumstances, in cases where the alien has already evaded the execution of a removal measure. The finding by the administrative authority of facts falling within provision 3o of part II of Article L. 511-1, while it is such as to create a presumption of a risk that the alien might fail to comply with his or her obligation to leave France, does not dispense that authority, before any decision to place him or her in detention, parents of minor children and who do not have sufficient guarantees of compliance, such aliens being provided for by Article L. 562-1 of the said Code, and in accordance with the aims of Article 17 of Directive 2008/115/EC, recourse to placement in detention can only constitute an exceptional measure in cases where the alien does not have a stable place of abode at the time when the prefectoral authority takes the necessary measures to prepare for the removal. 5. For the purposes of transposition of the above-mentioned Directive, Article L. 562-1 of the Entry and Residence of Aliens and Right of Asylum Code, as inserted by Law no. 2011672 of 16 June 2011, provides: ‘In the cases provided for in Article L. 5511, where the alien is the parent of a minor child residing in France and has effectively contributed to the raising and education of that child in the conditions prescribed in Article 371-2 of the Civil Code since the birth of the child or at least for the past two years, and where the conditions for a restricted residence measure under Article L. 561-2 of the present Code are not fulfilled, the administrative authority can decide on a measure of curfew with electronic tagging, with the agreement of the alien concerned. The measure of curfew with electronic tagging is decided by the administrative authority for a period of five days. The measure may be extended by the Liberties and Detention Judge under the same conditions as the extension of the administrative detention provided for in chapter II of title V of the present book.’ 6. It can be seen from the evidence in the file that on the date of the decision appealed against, Mr [A.B.], accompanied by his wife and four-year-old son [A.B.], had been accommodated for several years in the hostel of the asylum-seekers’ reception centre in Chaingy, and that the child had been going to school. Mrs [A.A.B.] was apprehended on 16 February 2012 in that hostel, where the family had remained unlawfully, even though they had been requested to leave the premises by the centre’s administration, following the rejection of their requests for a review of their asylum situation by a decision of 28 July 2011 of the French Office for the Protection of Refugees and Stateless persons. In deciding on their placement in detention the prefect of Loiret merely stated that Mr [A.B.] did not present sufficient guarantees against the risk of non-compliance, as he did not have a valid passport, had no stable place of abode or sufficient income, and had not complied with the previous directions for his removal. It does not appear from the decision appealed against that the prefect had considered, having regard to the presence of a child, whether a less coercive measure than detention was possible for the necessarily short duration of the removal procedure. In those conditions, his decision was vitiated by an error of law and had for that reason to be declared null and void. 7. It transpires from the foregoing that, without there being any need to examine the other arguments in the application, Mr [A.B.] is justified in submitting that the judge appointed by the President of the Toulouse Administrative Court, in the judgment appealed against, had been wrong to reject his request for the annulment of the decision of 17 February 2012 placing him in administrative detention.” ...