ECtHR, M.A. v. France (No. 9373/15) 2 July 2018
| Country of applicant: | Algeria |
| Court name: | European Court of Human Rights, fifth section |
| Date of decision: | 02-07-2018 |
| Citation: | ECtHR, M.A. v. France (No. 9373/15), 2 July 2018 |
Keywords:
| Keywords |
|
Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
|
Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
|
Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
|
Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
|
Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
|
Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
|
Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
|
Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The applicant, an Algerian national convicted in France for terrorism and banned from entering French territory in 2006, was sent back to Algeria in 2014, on the day he was notified of the rejection of his asylum claim and of the issuance of his return order. The Court found that the French authorities violated Article 34 of the Convention by carrying out the applicant’s transfer despite the Court’s interim measure. It also found that France violated Article 3, in the light of the general information regarding the situation of people suspected of international terrorism in Algeria.
Facts:
The applicant M.A., an Algerian national, fled to France in 1999, following the civil war, due to his involvement in Islamist movements against the authorities. He married a French national and had three children. In 2006, the applicant was convicted in France to seven years imprisonment accompanied with a permanent ban on entering French territory owing to his participation in a group preparing terrorist attacks in France, Algeria, Turkey, Georgia and Syria.
The applicant first sought interim measures from the Court in 2010 but the request was rejected in 2014 for non-exhaustion of the available domestic remedies (M.X. v. France (dec.), n° 21580/10, 1 July 2014).
In 2011, the applicant’s request to lift the above-mentioned ban before the Paris Criminal Court was rejected. In 2014, after having been informed of the upcoming expulsion decision, he sought asylum in France on the grounds of running the risk to be subjected to death penalty in Algeria.
The asylum claim was rejected owing to the applicant’s ignorance of armed groups to which he allegedly belonged to. Three days later, he was consequently notified not only of this decision, but also of the order to be sent back to Algeria on the same day. Despite the applicant’s lawyer request to the Court for an interim measure to be taken, the applicant was returned to Algeria as the plane’s gates had allegedly already been closed once instructions were received.
Decision & reasoning:
The applicant argues that the decision to send him back to Algeria violated Article 3 of the Convention, prohibiting torture and inhuman or degrading treatment, a risk increased owing to the breach of confidentiality of his statement to the French immigration authorities (OFPRA) to the police.
In response to the government’ s argument that the applicant did not exhaust available domestic remedies, the Court noted that the remedy must have suspensive effect and the applicant may not to be punished for choosing one remedy over another which did not present greater chances of success. The Court then concluded that the claim is admissible as the applicant appealed against the decision from the OFPRA rejecting his asylum claim, despite not having lodged an appeal against other decisions.
The Court also acknowledged the importance for Member States to stand firm against terrorism. It went on to cite several reports on the current situation in Algeria regarding the practice of torture and degrading treatment, specifically towards those suspected of international terrorism. The Court took note of the fact that the applicant waited for fourteen years before claiming asylum but found that the OFPRA did not take those circumstances into consideration to assess the applicant’s asylum claim. Moreover, the Court rejected the Government’s argument that two persons were returned to Algeria under the same circumstances without having raised the risk of being exposed to such treatments. Indeed, the Court concluded that at the time of the applicant’s return, he ran a serious and genuine risk of being exposed to treatments prohibited under Article 3 owing to his own individual and personal profile which is known to the Algerian authorities, coupled with the current situation mentioned above.
Regarding the alleged violation of Article 34 – regarding the States parties’ obligation not to hinder an individual’s right to file a request to the Court – the applicant argues that the government took all measures in order to arrange his quick removal to prevent him from seizing the Court.
It was first recalled that the respondent government has to demonstrate that an interim measure was respected, or to show that an objective impediment reasonably prevented it from being respected despite all necessary steps having been taken. While acknowledging the benefits of a speedy and efficient return measure, the Court reminds that it should not deprive one’s right to present a request for an interim measure.
Hence, when assessing whether the French government was faced with such impediments, the Court observed that all arrangements for the applicant’s return were concluded before the latter was notified. These actions indicate that the authorities rendered the applicant’s conditions to seize the Court very difficult, leading to a violation of Article 34.
Regarding the alleged violation of Article 8 on the right to family life, the Court found that the claim is inadmissible as the applicant did not exhaust all domestic remedies.
Outcome:
- Violation of Articles 3 and 34 of the Convention
- The Court granted the applicant the sum of 4000€ for all costs and expenses which incurred before the Court. It refused to grant any money in relation to moral damages or loss of earnings.
- The Court ordered the French government to take all necessary measures to obtain assurances from Algerian authorities that the applicant will not be subjected to treatment prohibited under Article 3.
Observations/comments:
Dissenting opinion of Judge O’Leary:
Judge O’Leary emphasized that the applicant stayed in France for 15 years, was married for 10, convicted for 8 and had received the first Court’s judgment 4 years before claiming asylum. She argues that this constitutes a fraudulent use of an asylum claim and notes that the Court should have assessed the consequences of such a long delay.
In relation to the applicant’s risk of being subjected to treatment prohibited under Article 3, she expressed her concern over the Court’s choice to follow neither the negative outcome of the assessment carried out by the OFPRA to grant the applicant asylum, nor to examine the fate of the applicant’s co-defendants during his trial regarding their similar ban from French territory in similar circumstances.
She further observes that the applicant never complained about having been subjected to the above-mentioned treatment since his return to Algeria, and that the Court refused to grant any satisfaction despite recognising a violation of a non-derogable article.
Regarding Article 34, Judge O’Leary argued that the threshold had not been reached as it was neither established that French authorities deliberately omitted to act, nor that the applicant’s lawyer had informed the government on the introduction of a request.
She finally points out the risk of generally and automatically protecting all persons falling in the applicant’s category against returns to Algeria, without sufficiently carrying out an individual risk assessment based on serious evidence.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Bahaddar v The Netherlands (Application no. 25894/94) |
| ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89) |
| ECtHR - Raninen v Finland (Application no. 20972/92) |
| ECtHR - Kudla v Poland [GC], Application No. 30210/96 |
| ECtHR - Aleksanya v Russia, Application No. 46468/06 |
| ECtHR - Popov v Russia, Application No. 26853/04 |
| ECtHR - Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (no. 2) [GC], Application No. 32772/02 |
| ECtHR - Daoudi v. France, Application No. 19576/08 |
| ECtHR - Paladi v. Moldova [GC], Application No. 39806/05 |
| ECtHR - Y.P. and L.P. v. France, Application No. 32476/06 |
| ECtHR - Selmouni v. France [GC], Application No. 25803/94 |
| ECtHR - I.M. v France, Application No. 9152/09 |
| ECtHR - Aquilina v. Malta [GC], Application No. 25642/94 |
| ECtHR - Mi. L. v. France, Application No. 23473/11 |
| ECtHR - Savriddin Dzhurayev v. Russia, Application No. 71386/10, UP |
| ECtHR- D.B. v. Turkey, Application no. 33526/08, 13 October 2010 |
| ECtHR- R.C. v. Sweden, Application no. 41827/07, 9 June 2010 |
| ECtHR- Assanidze v. Georgia [GC], Application no. 71503/01 |
| CJEU - C-573/14, Commissaire général aux réfugiés et aux apatrides v. Mostafa Lounani |
| ECtHR – J.K. v. and Others v. Sweden, Application No. 59166/12, 23 August 2016 |
| ECtHR - Vilvarajah and others v. The United Kingdom, Application Nos. 13163/87, 13164/87, 13165/87, 13447/87, 13448/87, 30 October 1991 |
| ECtHR - Chahal v. The United Kingdom, Application No. 22414/93, 15 November 1996 |
| ECtHR - Mamatkulov and Askarov v. Turkey, Application Nos. 46827/99 and 46951/99, 4 February 2005 |
| ECtHR - Öcalan v Turkey, Application no. 46221/99, 12 March 2003 |
| ECtHR – Saadi v. Italy, Application No. 37201/06, 28 February 2008 |
| ECtHR – Al-Saadoon and Mufdhi v. the United Kingdom, Application No. 61498/08, 2 March 2010 |
| ECtHR - X. v. Switzerland, no. 16744/14, 26 January 2017 |
| ECtHR - Micallef v. Malta [GC], no 17056/06, 15 October 2009 |
| ECtHR - M. X. v. France (dec.), no 21580/10, 1 July 2014 |
| ECtHR - Ben Salah v. Italy, no 38128/06, 24 March 2009 |
| ECtHR - Soltana v. Italy, no 37336/06, 24 March 2009 |
| ECtHR - C.B.Z. v. Italy, no 44006/06, 24 March 2009 |
Other sources:
- Texts of the Council of Europe related to terrorism
- Algerian Charter for peace and national reconciliation
- Report on Algeria from the Working group on universal periodic review of the United Nations Human Rights Council, 5 July 2012
- 2014/2015 Report on Algeria from Amnesty International, 25 February 2015
- 2015/2016 Report on Algeria from Amnesty International
- Contribution of Human Rights Watch to the universal periodic review of Algeria from the Council of Human Rights, 6 October 2016
- 2015 Country Reports on Human Rights Practices- Algeria by the U.S. State Department, 13 April 2016