ECtHR – M. K. v France, Application No. 76100/13, 1 September 2015

Facts:

The Applicant, an Algerian national, arrived in France in 2003. He fled to Belgium in January 2007 after murdering an Algerian national on French territory. He was arrested and sent back to France, where he was sentenced to nine years’ imprisonment by a decision of the Bouches-du-Rhône criminal trial court (‘cour d’assises’) given on 31 March 2009. He was then served with a deportation order on the basis that his presence on French territory constituted a serious threat to public order.

The Applicant appealed against the deportation order, claiming that it violated his rights under Articles 3 and 8 of the European Convention on Human Rights (‘ECHR’), but his appeal was dismissed. He also applied for asylum based on a fear of retaliation by the family members of his victim, who lived in the same neighbourhood as his own family in Algiers, but was refused. The French Office for the Protection of Refugees and Stateless Persons (‘OFPRA’) considered this not to amount to persecution under the meaning of the 1951 Refugee Convention. Specifically, it held that although he may be exposed to inhuman or degrading treatment upon return to Algeria, he should be excluded from subsidiary protection because he posed a serious threat to public order. The decision was subsequently confirmed by the National Court of Asylum (‘CNDA’).

Following the end of his custodial sentence, the Applicant was placed in administrative detention pending deportation to Algeria. His appeals against these measures, with further supporting statements from friends and family in Algeria, were dismissed by the Administrative Court.

On 4 December 2013, the Applicant applied to the European Court of Human Rights (‘ECtHR’). He maintained that he would be at risk of ill-treatment contrary to Article 3 ECHR on return to Algeria. An interim measure was granted by the ECtHR under Rule 39, prohibiting the French authorities from deporting the Applicant throughout the duration of proceedings before the court.

Decision & reasoning:

The ECtHR held that the application was manifestly ill-founded and, as a result, inadmissible. Reiterating that the domestic courts were best placed to assess the evidence presented to them, the Court first observed that in the present case those courts differed in their estimations of the probative value to be attached to the statements from the Applicant’s friends and family in Algeria, which certified that the victim’s family had made threats of violence. It then acknowledged that, while it was difficult to obtain other forms of evidence for this particular type of threat, the statements all came from people who were close to the Applicant.

Leaving this issue aside, supposing that the alleged intention to retaliate could be made out, the Court nonetheless doubted that the Algerian authorities would be incapable of providing the Applicant with an appropriate level of protection, especially if he were to move to another part of the country. It emphasised that Article 3 did not prevent contracting states from taking into account the possibility of relocation. In particular, the Court cited the decisions of Husseini v Sweden, D. N. M. v Sweden and Ndabarishye Rugira v Netherlands. These respectively concerned deportation to Afghanistan, Iraq and the Democratic Republic of Congo, with the alleged risk arising as a result of a generally unsafe situation in those countries. In the present case, the risk concerned private individuals and was confined to a particular neighbourhood, meaning that the same approach could be applied all the more readily. Meanwhile, as a 29-year-old single man, he was in a position to relocate to another area. Accordingly, the Court concluded that there were no substantial grounds for believing that deportation would expose the Applicant to a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 3.

Outcome:

Application denied.

Observations/comments:

This case summary was written by Georgia Kandunias, GDL student at BPP University, UK.

Other sources: