ECtHR – Case of A.S. v France, 19 July 2018, Application No. 46240/15

Facts:

The applicant M. A.S., a Moroccan national who arrived in France in 1991 and was naturalised in 2002, was returned to Morocco in 2015 after being stripped of his French nationality following his conviction in France on terrorist charges.

After initiating several procedures, including, inter alia, appeals against the decision depriving him of his French citizenship involving a priority question of constitutionality, the applicant argued before the Court that his return violated multiple articles of the European Convention on Human Rights, including the prohibition to be exposed to the risk of of torture and ill-treatment.

Being notified of his return decision on the same day he was returned, he argues that the respondent government should have prevented his return from taking place in the afternoon and allow him effective remedy, especially in the light of his request for an interim measure made in the morning in which he notably claimed he would be at risk of treatments mentioned above.

After his return, the applicant seized the interim relief judge and appealed against his asylum claim’s refusal.

Decision & reasoning:

First, to decide that this claim was admissible, the Court started by reminding that Article 13 of the Convention – on the domestic remedies’ exhaustion rule – only required one domestic remedy to fulfil those conditions, in other words one remedy with suspensive effect which allowed a rigorous examination and thorough check of the alleged violation.

The Court then started its analysis with Article 25 of the French civil code regarding the conditions of the deprivation of citizenship, applicable to those who acquired French nationality in addition to a previous one, in order to prevent statelessness. The Court then recalls conditions and procedural safeguards of return orders.

On the alleged risk of being subjected to inhuman or degrading treatment or punishment in Morocco in violation of Article 3 of the Convention, the Court paid attention not only to reports regarding Morocco’s developments to address and prevent the serious human rights violation of torture and ill-treatment, but also to the decision of the OFPRA rejecting the applicant’s asylum claim, later confirmed on appeal by the National Court on the Right to Asylum (CNDA). Indeed, it carried out an evaluation on the risk of the applicant to be exposed to treatments prohibited under Article 3 in Morocco.

The Court further relied on the subsidiarity principle, as well as on the available information subsequent to the applicant’s return to Morocco, to better establish whether the French authorities’ appreciation was adequate. Hence, the Court reached the same conclusion by stating that the applicant did not provide sufficient proof of the risk to be subjected to treatments referred to in Article 3, notably in the light of subsequent events. Unlike the case of M.A. v. France and X. v. Switzerland, the Court noted, in this case, the efforts of Morocco to prevent such treatments and the absence of proof that third parties were indeed subjected to those treatments.

On the alleged violation of Article 34 – regarding States parties’ engagement not to prevent the effectiveness of the right to seize the Court for an alleged violation – the Court first recalled that owing to the procedural nature of the complaint, its admissibility could not be contested by the government. It then recalled the crucial importance of interim measures and the defending government’s burden of proof to either demonstrate that the measure was respected or that an objective impediment prevented it, despite having taken all necessary steps.

In substance, the Court found that the abnormally late notification of the return decision, five hours before the applicant’s return, had required steps to be taken, such as the flight’s booking. Hence, the Court concluded that the French government did not provide the applicant with sufficient time to file a request to the Court to suspend a long-time taken decision, letting him potentially run the risk of being subjected to treatments prohibited by the Convention in a non-party State, in violation of Article 34 of the latter.

On the alleged violation of Article 8 regarding the right to family life, owing to the applicant’s separation with his children, the Court rejected the admissibility of the complaint by observing that the application to annul the return order invoked a violation on those grounds and was an effective remedy still pending before the French Administrative Court of Appeal.

Finally, on the application of Article 41 of the Convention regarding damages, the Court observed unanimously that the recognition of the violation of Article 34 mentioned above provided in itself a sufficient just satisfaction for moral damages, rejecting the applicant’s claim of 20 000€. It further rejected to allocate the sum of 2000€ in respect of costs and expenses before the Court, owing to the lack of supporting legal fees documents.

Outcome:

- No violation found of Article 3 of the Convention

- Violation found of Article 34 of the Convention

- Application rejected regarding the claim of other remedies  

Observations/comments:

Partly dissenting opinion of Judge O’Leary:

The judge shared the Court’s opinion in relation to the absence of violation of Article 3 of the Convention but noted the evolution of the Court towards accepting the risk-assessment previously carried out by the French immigration authorities (OFPRA) despite having deviated from it in the previous case of M.A. v. France in similar circumstances.

Regarding the violation of Article 34 of the Convention, she observed that prior to the case of M.A. mentioned above, the Court had never convicted a State for having rapidly and efficiently prepared the return of an alien posing a danger to public security without examining the government’s explanations. In that sense, she noted that the exception now tended to become the rule, even though no pattern of the French government had yet been established to constitute a lack of loyal cooperation. Hence, she emphasized her belief that the Court should have requested further evidence in order to establish such a violation, based on a more rigorous examination to avoid taking an absolutist approach.

Other sources:

- Amnesty International, ‘Shadow of impunity: Torture in Morocco and Western Sahara’, May 2015

- U.S. State Department, ‘Country Reports on Human Rights Practices – Morocco’, 13 April 2016