CASE OF DE SOUZA RIBEIRO v. FRANCE
Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-2 - Interference;Prescribed by law;Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life;Expulsion) (Brazil);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;André Potocki;Angelika Nußberger;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Erik Møse;Françoise Tulkens;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Lech Garlicki;Mark Villiger;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Paulo Pinto De Albuquerque;Zdravka Kalaydjieva
10. The applicant was born on 14 June 1988 and lives in Remire Montjoly in French Guiana, a French overseas “département and region” in South America. 11. He arrived in French Guiana from Brazil in 1992, at the age of four, and attended school there for a year before returning to Brazil in 1994. 12. In 1995, in possession of a tourist visa, the applicant returned to Cayenne in French Guiana, where he joined his parents, both of whom had permanent residence cards, and his two sisters and two brothers, one of whom had French nationality while the other three, having been born on French soil, were entitled to apply for it. His maternal grandparents remained in Brazil. 13. The applicant attended primary then secondary school in French Guiana from 1996 to 2004. As he had no proper residence papers and could not apply for them until he came of age (see paragraph 26 below), he had to leave school in 2004, at the age of 16. 14. On 25 May 2005 the applicant was arrested on suspicion of a drug offence. By an order of 17 May 2006, the Cayenne Youth Court placed him under court supervision and barred him from leaving French Guiana. 15. In a judgment of 25 October 2006, the Cayenne Youth Court sentenced the applicant to two months’ imprisonment, suspended, and two years’ probation, together with the obligation to report to the authorities and to undergo training, for unauthorised possession of cocaine while under 18 years of age. In execution of that judgment, the applicant began a vocational training course that was scheduled to last from 13 October 2006 to 30 March 2007, as part of the socio-professional guidance and integration scheme in French Guiana. 16. On 25 January 2007 the applicant and his mother were stopped at a road check. As the applicant was unable to show proof that his presence on French soil was legal, he was arrested. 17. The same day, at 10 a.m., an administrative removal order (arrêté préfectoral de reconduite à la frontière) and an administrative detention order were issued against him. The removal order stated: “– Having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and in particular Articles 3 and 8, ... – Whereas, according to report no. 56 of 25/01/2007, drawn up by the DDPAF [Département Border Police] of French Guiana, the above-mentioned person: – is unable to prove that he entered French territory legally; – has remained in French territory illegally; – Whereas, in the circumstances of the present case, an administrative removal order must be issued against the alien concerned, – Whereas that person has been informed of his right to submit observations in writing, – Whereas, in the circumstances of the present case, there is no disproportionate interference with the person’s right to family life, – Whereas the alien does not allege that he would be exposed to punishment or treatment contrary to the European Convention on Human Rights in the event of his return to his country of origin (or the country of habitual residence to which he is effectively entitled to return), ... [The applicant’s] removal is hereby ordered.” 18. On 26 January 2007, at 3.11 p.m., the applicant sent two faxes to the Cayenne Administrative Court. One contained an application for judicial review of the removal order, calling for its cancellation and the issue of a residence permit. In support of his application the applicant alleged in particular that the order was in breach of Article L. 511-4 (2) of the Code regulating the entry and residence of aliens and asylum-seekers (Code de l’entrée et du séjour des étrangers et du droit d’asile – CESEDA) (see paragraph 26 below), and also, relying on Article 8 of the Convention, that the authorities had manifestly misjudged the consequences of his removal for his personal and family life. He explained that he had entered French territory before the age of 13, that he had lived there on a habitual basis ever since, that both his parents had permanent residence cards, and that one of his brothers had acquired French citizenship and his other brother and sisters had been born on French soil. He further submitted that he was under an obligation to abide, for two years, by the conditions of his probation, failing which he would go to prison, and that, as required by the probation order, he had already begun a course in mechanics. The other fax contained an urgent application for the court to suspend the enforcement of the removal order in view of the serious doubts about its lawfulness. In support of his application the applicant again relied on Article 8 of the Convention and repeated the arguments mentioned in the application for judicial review, which showed that most of his private and family life had been spent in French Guiana. 19. On 26 January 2007, at 4 p.m., the applicant was removed to Belem in Brazil. 20. On the same day, the urgent-applications judge at the Cayenne Administrative Court declared the urgent application for a suspension of the applicant’s removal devoid of purpose as he had already been deported. The applicant immediately applied for legal aid to appeal to the Conseil d’Etat against that ruling. By a decision of 6 March 2007, the President of the Legal Aid Office of the Conseil d’Etat rejected his application for “lack of serious grounds likely to convince the court”. 21. On 6 February 2007 the applicant lodged an urgent application for protection of a fundamental freedom (requête en référé liberté) with the Cayenne Administrative Court. Referring to the Convention and to the Court’s case-law, he complained of a serious and clearly unlawful interference by the authorities with his right to lead a normal family life and his right to an effective remedy. He requested that the prefect of French Guiana be instructed to organise his return there within twenty-four hours of notification of the order, to enable him to defend himself effectively regarding the alleged violations of the Convention, and to be reunited with his family while the prefecture examined his right to stay in French Guiana. By an order of 7 February 2007, the urgent-applications judge at the Cayenne Administrative Court rejected the application, considering in essence that the measure the applicant sought would to all intents and purposes amount to a permanent measure, whereas the urgent-applications judge could only order interim measures. 22. In August 2007 the applicant returned to French Guiana illegally. 23. On 4 October 2007 the Cayenne Administrative Court held a hearing in which it examined the applicant’s earlier application for judicial review (see paragraph 18 above). In a judgment delivered on 18 October 2007, it set aside the removal order. It noted in particular that the applicant claimed that he had returned to France in 1995, at the age of seven, and had resided there on a habitual basis thereafter, and that in support of his claims he had produced school certificates the authenticity of which the prefect did not dispute. It found it established that the applicant’s mother had a permanent residence card and that his father also lived in French Guiana. The court further noted that, according to a court supervision order produced by the applicant, he had been arrested in French Guiana in 2005 and prohibited from leaving the territory. It found that the applicant fulfilled the conditions provided for in Article L. 511-4 (2) of the CESEDA, which meant that the removal order should not have been issued against him. In response to the applicant’s request to instruct the prefect of French Guiana to issue him with a residence permit within a month of the judgment being served, the court considered that its decision did not necessarily entail the issue of a temporary residence permit as it concerned only the setting aside of the removal order. The court did, however, set a three-month time-limit within which the prefect was to resolve the question of the applicant’s residence status. 24. On 16 June 2009 the prefecture of French Guiana issued the applicant with a “visitor’s” residence permit, which was valid for one year but did not allow him to work. An investigation revealed that the authorities had issued the “visitor’s” permit by mistake. On 23 September 2009 the applicant was issued with a new residence permit for “private and family life”. It was backdated to June 2009, valid for one year and allowed him to work. That residence permit was not renewed upon its expiry on 15 June 2010 because of a problem with the documents required for its renewal. On 14 October 2010 the applicant was issued with a new residence permit valid from 16 June 2010 to 15 June 2011, subsequently renewed until 15 June 2012. The applicant now holds a renewable residence permit for “private and family life”. 26. The relevant provisions of the CESEDA as in force at the material time are as follows: “Unless their presence represents a threat to public order, a temporary residence permit for ‘private and family life’ shall automatically be issued: (1) to an alien, in the year following his eighteenth birthday, ... where at least one of the parents has a temporary or a full residence permit ...; (2) to an alien, in the year following his eighteenth birthday, ... where he can prove by any means that he has been habitually resident in France, with at least one of his legitimate, natural or adoptive parents, since the age of 13, filiation having been established in the conditions laid down in Article L. 314-11; the condition provided for in Article L. 311-7 is not required; ...” “The following persons shall not be required to leave French territory, or made the subject of a removal order, under the provisions of this chapter: ...; (2) Aliens who can prove by any means that they have been habitually resident in France since at least the age of 13; ...” 27. These provisions are applicable throughout French territory, including France’s overseas territories. 28. At the material time expulsion measures were governed by Book V of the CESEDA, introduced by Law no. 2006-911 of 24 July 2006. They included the obligation to leave French territory (Article L. 511-1-I) and administrative removal (Article L. 511-1-II). 29. An alien who could not prove that he or she had entered France legally, or who had remained there illegally, and who could not be authorised to stay on any other grounds, could be ordered to leave, in particular by means of an administrative removal order (Articles L. 511-1 to L. 511-3 of the CESEDA). 30. If the alien was placed in administrative detention, he or she was informed of his or her rights and was entitled to legal assistance provided by an association in the detention centre. These associations were legal entities which had concluded agreements with the Ministry responsible for asylum and whose purpose was to inform the aliens concerned and help them to exercise their rights. In 2007, the only association present in French administrative detention centres was CIMADE. Since 2010 four other associations have also been present: the Ordre de Malte, the Association Service Social Familial Migrants (ASSFAM), France Terre d’Asile and Forum des Réfugiés. 31. Appeals against administrative removal orders could be lodged before the administrative court within forty-eight hours of their being served (Article L. 512-2 of the CESEDA). The appeal suspended the execution of the removal order but did not prevent the alien from being placed in administrative detention. The alien could not be deported before the time-limit for appealing had expired or – if the matter had been referred to the court – before the court had reached a decision (Article L. 512-3 of the CESEDA). The decision as to the country of destination was separate from the actual removal order. If that decision was challenged at the same time as the removal order, the appeal also had suspensive effect (Article L. 513-3 of the CESEDA). 33. The administrative court was required to reach a decision within seventy-two hours. 34. An appeal against the judgment of the administrative court could be lodged with the president of the administrative court of appeal having territorial jurisdiction, or a person delegated by him. This appeal had no suspensive effect (Article R. 776-19 of the Administrative Courts Code). 35. The consequences of the setting aside of an administrative removal order were covered by Article L. 512-4 of the CESEDA. First of all, it put a stop to any administrative detention or house arrest. The alien was then issued with a temporary residence permit while the administrative authority reviewed his or her case. Lastly, the judge responsible for removal matters did not merely refer the alien back to the administrative authorities; under Article L. 911-2 of the Administrative Courts Code, it also ordered the prefect to decide whether the person was entitled to a residence permit, “regardless of whether he or she had applied for one” and set a time-limit within which the situation of the alien concerned was to be reviewed (see, for example, Conseil d’Etat, 13 October 2006, application no. 275262, M. Abid A.). 36. However, a judgment of the administrative court setting aside a removal order did not oblige the prefect to issue a residence permit, as it did not concern the setting aside of a refusal to issue a residence permit (see the leading judgment of the Conseil d’Etat of 22 February 2002, application no. 224496, M. Dieng, followed by others). This applied even when the decision to set aside a removal order was based on substantive grounds, such as a violation of Article 8 of the Convention. According to the caselaw, a review of the person’s situation sufficed to fully execute a decision to set aside a removal order on substantive grounds. However, the principle of res judicata prevents the administrative authority from issuing a new removal order on the same grounds without showing any change in the circumstances. 37. These provisions (see paragraphs 28-36 above) were amended in part by Law no. 2011-672 of 16 June 2011 on immigration, integration and nationality, which harmonised the procedure for removing illegal aliens. The solutions previously adopted in the case-law concerning administrative removal measures are generally transposable to the present situation. 38. The relevant provisions of the CESEDA, in the version in force at the material time, read as follows: “For the purposes of this part, the following provisions shall apply in French Guiana and Saint Martin: (1) If the consular authority so requests, the removal order shall not be executed until one full day after it has been served; (2) Without prejudice to the provisions of the preceding paragraph, an alien who has been ordered to leave French territory or against whom an administrative removal order has been issued and who refers the matter to the administrative court may, at the same time, apply for a stay of execution. Consequently, the provisions of Articles L. 512-1 and L. 512-2 to L. 512-4 [whereby a removal order issued by the prefect may be challenged before the administrative court within forty-eight hours, with suspensive effect on the execution of the removal order] shall not apply in French Guiana or Saint Martin.” 39. Unlike in ordinary French law, therefore (see paragraph 31 above), an appeal to the administrative court does not stay the execution of a removal order. This exception, originally introduced for a limited period, was made permanent in French Guiana by the Homeland Security Act (Law no. 2003239 of 18 March 2003). 40. When asked to review the conformity of this measure with the French Constitution, as provided for in Article 61 of the Constitution, the Constitutional Council approved it. In its decision no. 2003-467 of 13 March 2003, when examining the conformity of the measure with Article 73 of the Constitution, the Constitutional Council noted: “Sections 141 and 142 [of the Homeland Security Act] make the special provisions ... permanent in French Guiana and in the municipality of Saint Martin in Guadeloupe; under these provisions, refusal to issue a residence permit to certain aliens is not submitted for opinion to the residence-permit committee provided for in section 12 quater of the order of 2 November 1945, and an appeal against a removal order has no suspensive effect. The applicant MPs argue that in making the special regime permanent sections 141 and 142 interfere with ‘constitutionally protected rights and guarantees such as the rights of the defence’ and go beyond the adjustments to the legislation of the overseas départements authorised by Article 73 of the Constitution. In order to allow for the particular situation and the lasting difficulties encountered with regard to the international movement of people in the département of French Guiana and in the municipality of Saint Martin in the département of Guadeloupe, Parliament has maintained the special regime introduced by sections 12 quater and 40 of the order of 2 November 1945, mentioned above, without disrupting the balance, required by the Constitution, between the needs of public policy and the protection of the rights and freedoms guaranteed by the Constitution. The persons concerned continue to enjoy the right of appeal against administrative measures, and in particular the right to lodge urgent applications with the administrative court. Bearing in mind the special circumstances, which are directly related to the specific aim of strengthening the fight against illegal immigration, the legislation has not infringed the constitutional principle of equality. The adjustments in question are not contrary to Article 73 of the Constitution. ...” 41. Concerning the removal of aliens, French legislation provides for similar exceptions in another six overseas “départements and regions” and communities (Guadeloupe, Mayotte, Wallis and Futuna, Saint Barthélemy, Saint Martin, French Polynesia) and New Caledonia. 42. The legal provisions governing urgent applications for a stay of execution or for the protection of a fundamental freedom (référé suspension or référé liberté) are automatically applicable in French Guiana just as they are everywhere else in France. The relevant provisions of the Administrative Courts Code read as follows: “When an application is made to set aside or vary an administrative decision, including a refusal, the urgent-applications judge may order that execution of the decision or certain of its effects be stayed where the urgent nature of the matter warrants it and where grounds are advanced capable of raising serious doubts, as the evidence stands, as to the lawfulness of the decision. Where an order is made staying execution, a ruling shall be given as soon as possible on the application to have the decision set aside or varied. The stay of execution shall end at the latest when a decision is taken on the application to have the decision set aside or varied.” “Where such an application is submitted to him or her as an urgent matter, the urgent-applications judge may order whatever measures are necessary to protect a fundamental freedom which has been breached in a serious and manifestly unlawful manner by a public law entity or an organisation under private law responsible for managing a public service, in the exercise of their powers. The urgent-applications judge shall rule within forty-eight hours.” 43. When examining a case concerning French Guiana, referred to it under Article L. 521-1 of the Administrative Courts Code, the Conseil d’Etat pointed out: “The urgency of the matter justifies the stay of execution of an administrative measure when its execution would, in a sufficiently serious and immediate manner, undermine a public interest, the applicant’s situation or the interests he seeks to defend. It is for the urgent-applications judge to whom an application for a stay of execution of a decision not to issue a residence permit has been referred to assess the urgency and give reasons, taking into account the immediate impact of the refusal to issue the residence permit on the practical situation of the individual concerned. As Article L. 514-1 of the Code regulating the entry and residence of aliens and asylum-seekers stipulates that Article L. 512-1 of the same Code does not apply in French Guiana, an appeal by an alien against a refusal to issue a residence permit, combined with an obligation to leave French territory for a specified country of destination, does not stay the execution of the obligation to leave French territory.” 44. The Conseil d’Etat went on to consider that, in these circumstances, “the prospect that an expulsion measure might be implemented at any time ... may be considered to characterise an urgent situation opening the possibility for the urgent-applications judge to stay the execution of the decision to refuse to issue a residence permit, combined with the obligation to leave French territory, in conformity with the provisions of Article L. 521-1 of the Administrative Courts Code”. (Conseil d’Etat, 9 November 2011, M. Takaram A., no. 346700, Recueil Lebon) 45. In response to a complaint lodged on 23 January 2008, the National Commission for Policing Ethics (Commission nationale de déontologie de la sécurité) examined the circumstances in which Mr C.D., a Brazilian national, had been stopped on 12 November 2007 by the mobile investigation squad of the Border Police of the département of French Guiana, taken into custody and detained pending his expulsion, and subsequently died six hours after being hospitalised in Cayenne. 46. In its opinion of 1 December 2008, the National Commission for Policing Ethics noted “the existence within the Border Police in French Guiana, from 2006 to 30 January 2008 – when the two public highway patrol units of the mobile investigation squad were disbanded – of working methods and data-processing practices which, under cover of formally legitimate procedures, systematically violated all the principles of criminal procedure and in particular the most elementary rights of the people arrested, ... by intentionally falsifying the times mentioned in their reports, or using pre-printed forms whereby people who were taken into custody or detained waived their rights before they had even had a chance to voice their wishes on the matter. Because of the systematic and long-standing nature of these violations of the law ... the Commission strongly recommends that ... disciplinary measures be taken against all those ... who instigated or implemented them or allowed them to go on for such a long time ... More generally, the Commission requests that all those who serve overseas be reminded that: ... in the fight against illegal immigration the number of effective removals demanded by the central authorities must in no way affect the quality and lawfulness of the procedures; and whatever the legal steps taken following the arrest – remand in custody, identity check, administrative detention – the people concerned have certain rights of which it is the duty of the police to inform them in practice, in a language they understand, to enable them to exercise their rights effectively and not just for the sake of appearances.” 47. On 4 May 2005 the Committee of Ministers adopted “Twenty Guidelines on forced return”. The relevant guidelines read as follows: “Guideline 2. Adoption of the removal order Removal orders shall only be issued in pursuance of a decision reached in accordance with the law. 1. A removal order shall only be issued where the authorities of the host State have considered all relevant information that is readily available to them, and are satisfied, as far as can reasonably be expected, that compliance with, or enforcement of, the order, will not expose the person facing return to: a. a real risk of being executed, or exposed to torture or inhuman or degrading treatment or punishment; b. a real risk of being killed or subjected to inhuman or degrading treatment by non-State actors, if the authorities of the State of return, parties or organisations controlling the State or a substantial part of the territory of the State, including international organisations, are unable or unwilling to provide appropriate and effective protection; or c. other situations which would, under international law or national legislation, justify the granting of international protection. 2. The removal order shall only be issued after the authorities of the host State, having considered all relevant information readily available to them, are satisfied that the possible interference with the returnee’s right to respect for family and/or private life is, in particular, proportionate and in pursuance of a legitimate aim. ... Guideline 5. Remedy against the removal order 1. In the removal order, or in the process leading to the removal order, the subject of the removal order shall be afforded an effective remedy before a competent authority or body composed of members who are impartial and who enjoy safeguards of independence. The competent authority or body shall have the power to review the removal order, including the possibility of temporarily suspending its execution. 2. The remedy shall offer the required procedural guarantees and present the following characteristics: – the time-limits for exercising the remedy shall not be unreasonably short; – the remedy shall be accessible, which implies in particular that, where the subject of the removal order does not have sufficient means to pay for necessary legal assistance, he/she should be given it free of charge, in accordance with the relevant national rules regarding legal aid; – where the returnee claims that the removal will result in a violation of his or her human rights as set out in Guideline 2.1, the remedy shall provide rigorous scrutiny of such a claim. 3. The exercise of the remedy should have a suspensive effect when the returnee has an arguable claim that he or she would be subjected to treatment contrary to his or her human rights as set out in Guideline 2.1.” 48. The Commissioner for Human Rights issued a Recommendation concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders (CommDH(2001)19). This Recommendation of 19 September 2001 included the following paragraph: “11. It is essential that the right of judicial remedy within the meaning of Article 13 of the [European Convention on Human Rights] be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the [Convention]. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the [Convention] is alleged.” 49. The relevant parts of Articles 5, 12 and 13 of the Return Directive read as follows: “When implementing this Directive, member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the third-country national concerned, and respect the principle of non-refoulement.”  “1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies. ...” “1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12 § 1, before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. 2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12 § 1, including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation. ...” 50. In accordance with Article 40 of the International Covenant on Civil and Political Rights, on 9 and 10 July 2008 the United Nations Human Rights Committee examined the fourth periodic report of France (UN Doc. CCPR/C/FRA/4). On 22 July 2008, it adopted its Concluding Observations (UN Doc. CCPR/C/FRA/CO/4) on that report, which included the following: “... no recourse to the courts is available to persons deported from the overseas territory of Mayotte, involving some 16,000 adults and 3,000 children per year, nor from French Guiana ... The State Party should ensure that the return of foreign nationals, including asylum-seekers, is assessed through a fair process that effectively excludes the real risk that any person will face serious human rights violations upon his return. Undocumented foreign nationals and asylum-seekers must be properly informed and assured of their rights, including the right to apply for asylum, with access to free legal aid. The State Party should also ensure that all individuals subject to deportation orders have an adequate period to prepare an asylum application, with guaranteed access to translators, and a right of appeal with suspensive effect.” (The last paragraph appears in bold type in the original text.) 