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In 2004, Ms. A.Y arrived from Guinea to claim asylum. She alleged to have been detained, tortured and raped by military officers in 2003 due to her political activity in U.F.R party. In May 2005, she moved in with her partner a EU citizen from Netherlands. In 2006, she suffered an miscarriage which ended her pregnancy. On June 4th 2009, Ms. A.Y and her partner registered a civil partnership (PACS)with the intent to get married at a later date.
On May 2nd 2008, the national court of asylum (CNDA) rejected her appeal on the decision of the asylum officers of OFPRA to deny her asylum. On May 5th 2009, the prefect in Annecy ordered her deportation to Guinea due to her “unlawful” stay. On May 15th 2009, Ms. A.Y filed an application to the ECHR on the ground that she will be submitted to torture (art.3), separated from her partner (art.8) and not able to get married (art.12) if deported. The French government suspended the deportation order following request from the E.C.H.R (art.39).
The French government never transposed the articles 2-2-b) and 3-2-b) of the directive 2004/38/EC in national law (code of migration and asylum). These articles allow registered partner and partner in durable relation with a EU citizen to obtain a 5 years residence card upon registration. The deadline of the transposition of the directive 2004/38/EC was April 30th 2006. On July 25th 2008, the European Court of Justice ruled in case Metock (C-127/08) that any EU citizen’s family member have legal status under the directive 2004/38/EC irrespective of the lawfulness of his entry or stay before becoming a family member (99). The Court added an unlawful stay before becoming a family member can’t be a ground for deportation of the family member (97).
In its observation to the Court, the French government didn’t allege that the personal conduct of Ms. A.Y represents any “threat affecting one of the fundamental interests of society” . But it stated if the applicant is deported to Guinea, the couple could live there.
In its decision of October 11st 2011, the Court found that the deportation order to Guinea was in “accordance with the law“. On the contrary, the deportation order on the ground of “unlawful stay” (art. L511-1 of the code of migration and asylum) was taken in violation of articles 3-2-b) and 27 of the directive 2004/38/EC and the ECJ judgment Metock (C-127/08). The Court added that from May 2005 to April 2009, the couple couldn’t have a “legitimate expectation that right of residence would be granted to the applicant“. On the opposite, the applicant should have a legitimate expectation that the French government will respect the directive 2004/38/EC and the case-law of the European Court of Justice, and acknowledge her right of residence.
Finally, the Court ruled the application inadmissible as manifestly ill-founded on the surprising ground that if Ms. A.Y is deported to Guinea her EU citizen partner could live with her. But there is no provision under the Guinean immigration executive order 94/059 to grant an immigrant visa and a residence card to the partner or spouse of a citizen of Guinea. On the opposite, Ms. A.Y could live with her partner in any of the 27 countries of the European Union under articles 2-2-b), 3-2-b) and 7 of the directive 2004/38/EC.
This decision A.Y v. France (25579/09) raises serious concerns about the respect of the European Union Law and the case law of the European Court of Justice, by the European Court of Human Rights. The applicant was represented by Me Michele Blanc (Annecy).
In 1987, Mr. Djamel Beghal arrived in France to pursue studies at the age of 22 years old. In 1993, he became a French citizen. On October 1st 2001, he was extradited from U.A.E to France. On March 15th 2005, the tribunal of Paris condemned him to 10 years in jail for “preparing a terrorist attack” on the U.S embassy in Paris. On December 14th 2005, the appeal court of Paris confirmed the sentence, even there was unsufficient evidence according to U.S diplomatic cable 05PARIS3118 revealed by Wikileaks.
On December 23rd 2006, the French government stripped the applicant from his French citizenship and on September 19th 2007, took an order to deport him to his country of birth Algeria.
On May 26th 2009, the emergency request of the applicant to suspend the deportation order to Algeria was rejected by the administrative tribunal of Paris. On May 27th 2009, Mr. Beghal filed an application to the ECHR on the ground that he will be submitted to torture (art.3) and separated from his French wife and 4 childrens (art.8) if deported. On May 28th 2009, the ECHR requested the French government to suspend the order of deportation awaiting its decision on the application.
On May 30th 2009, the French government refused to comply with the request of the ECHR and attempted to deport the applicant at the airport Paris-Orly. French Police officers only stopped their attempt of deportation after being served with an emergency order from the administrative tribunal of Paris.
On May 22th 2010, the applicant was arrested and became a suspect in a police investigation. Surprisingly, on September 6th 2011, the ECHR found the application inadmissible on the ground that the applicant “couldn’t” be deported during investigation and decided to cancel its request to suspend the deportation order.
But the deportation order has not been canceled or suspended by the French government as there is no provision in the French law that allows to cancel or suspend the deportation order of a suspect in a police investigation. The applicant was represented by Me Bérenger Tourné (Paris).
In France, more than 30,000 asylum seekers who have the right to be housed in special centers (CADA) are being denied this right in violation of article L348-1 of the social and family code and have to wait on average 13 months before being housed in these centers. Thousands of asylum seekers are then forced to homelessness with or without an allowance of €10,83 per day in violation of articles 13 and 14 of the European directive 2003/9/EC. They survive from food handout from charity organizations and every night have to request by phone a bed in a homeless shelter which are often already full.
In the city of Rennes, dozens of asylum seekers became homeless. On February 25th 2011, the NGO “Droit au Logement” occupied an abandoned government building (280 rue de Fougeres) and opened it to 80 asylum seekers. On March 1st 2011, the prefect obtained without any hearing, a possession order from a judge of tribunal of Rennes (art.808 of the code of civil procedure).
On March 4th 2011, 13 asylum seekers and 5 children, submitted an application for interim measures (art.39 of the rules of the Court) to request the suspension of the possession order of March 1st 2011 and to have the prefect offer them immediately appropriate housing (see below). They are represented by Me Melanie Le Verger (Rennes). She argued that the living conditions of the applicants in France are a violation of article 3 of the Convention (M.S.S. v. Belgium and Greece (30696/09)) and the decision of the judge not to hold hearing and not to communicate to the applicant the legal brief of the prefect are violations of article 6.
On March 10th 2011, the Court requested information on the legal remedies offered to the applicants to have access to decent living conditions and what measures will be taken by the prefect to ensure that the applicants have appropriate living conditions. On April 8th 2011, the agent of the government replied there is no emergency legal remedies available for homeless asylum seekers benefiting from the allowance and that the prefect gives priority in housing to sick individuals and families with babies. He added that on March 16th 2011, 8 applicants on 18 have offers of housing.
On April 29th 2011, Me Melanie Le Verger replied that 7 applicants are still living in the occupied building, 1 applicant is living in a hotel, 2 in CADA, 5 are housed in waiting centers (“pre-CADA”) and 2 have offers for housing in CADA. She also mentioned 14 new applicants and added that due to the refusal of the prefect to offer housing to new asylum seekers, the building was now housing 140 asylum seekers. According to the statistics of the prefect office in Rennes, there is 811 individuals and 93 families with children seeking asylum without any permanent offer of housing (March 30th 2011) and on those only 192 asylum seekers and 22 families are benefiting from the daily allowance.
On May 6th, the Court requested information on the 7 applicants who were still living in the occupied building. On May 25th the agent of the government informed the Court that these applicants were living in a hotel waiting for their housing in CADA. On June 16th 2011, Me Melanie Le Verger informed the Court that on June 15th 2011, the 7 applicants, Mr. A. from Somalia who is physically disabled, Ms. S. from China who is suffering from severe Hepatitis C and her husband and Ms. and Mr. E from China who have 2 babies of one and two years old are all homeless again.
On October 22th 2008, Mr. Bertrand Rappaz was condemned to more than 5 years in jail for various offenses resulting from his activity as a farmer of marijuana. On March 2010, he was jailed at the prison des Iles in Sion.
A long time non violent and environment activist, he began an hunger strike to protest against the criminalization of the farming of marijuana and its lengthy sentence. Following a deterioration of his health, he made several requests for his sentence to be temporarily suspended for health reason (art. 92 of penal code).
He was temporarily released 2 times, and stopped his hunger strike. Once jailed again, he started a new hunger strike and was hospitalized in the penitentiary wing of the university hospital of Geneva.
On November 10th 2010, a judge ordered Dr. Hans Wolff, head of the penitentiary wing to practice forced feeding on the applicant but the doctor refused to carry it out.
On December 7th 2010, his last request (6B_1022/2010) was rejected by the federal tribunal on the ground that the “medical treatment” that he could receive will be the same whether he is detained or free. The tribunal didn’t take into account that the detained applicant was on hunger strike to protest against his detention and that Dr. Hans Wolff refused to carry out forced feeding. Moreover the ruling didn’t specify what kind of “medical treatment” the applicant could receive.
Swiss doctors and nurses associations already alerted that the forced feeding of a hunger strike patient is against the international ethics standard set by the World Medical Association (Declaration of Malta).
On December 14th 2010, the applicant filed an urgent motion under article 39 [fr], requesting that the Court order the Swiss government to temporarily suspend his sentence pending the decision of the Court. The applicant complained that the refusal to suspend his sentence was a violation of articles 2 and 3 of the Convention.
On December 16th 2010, Judge Christos Rozakis refused to grant the request. Surprisingly, Judge Christos Rozakis officially requested the applicant to stop his hunger strike thereby renouncing to his right to freedom of expression (art.10). Both decisions were unmotivated and the name of the judge is not revealed (see below). The applicant is represented by Me Aba Neeman (Monthey).
Following the decision of the Court, the applicant ceased his hunger strike and filed a complain for damages for his condition of detention in the penitentiary wing.
On January 16th 2000, Ms. Sonja Suder and her partner Mr. Christian Gauger were arrested following an extradition request from Germany for an investigation on crimes committed for political reasons from 1975 to 1978. The couple have been living in France since the 1980s. On March 22th 2000, they were both released.
On March 28th 2001, the investigation chamber of the court of appeal of Paris ruled against the extradition of the applicants to Germany on the ground that the crime committed from 1975 to 1978, could not longer be prosecuted under French statute of time limitation.
On October 30th 2007, the applicants were again arrested following a new request from Germany for the same investigation on crimes committed for political reasons from 1975 to 1978. On November 14th 2007, Mr. Gauger was released from thejail of La Santé, and on November 28th 2007, Ms. Suder was released from jail of Fresnes.
On February 25th 2009, the investigation chamber of the court of appeal of Paris ruled in favor of the extradition of the applicants to Germany. On May 27th 2009, the supreme court rejected the appeal from Ms. Suder (09-81731) and from Mr. Gauger (09-81732).
On July 29th 2009, the prime minister signed a decree of extradition for both applicants. On December 3rd 2010, the administrative supreme court rejected the appeals of both applicants (334683 and 334684) on the decree of extradition.
On October 22th 2010, the applicants filed two applications Gauger v.France (61393/10) and Suder v. France (61467/10) with the E.C.H.R arguing that the extradition of Ms. Suder (77 years) and Mr. Gauger who suffered a brain stroke in 1997, will be a violation of article 2,3 and 8, and that the new ruling on the new request for the extradition of the applicants was a violation of article 6-1 and article 4 of protocole 7. The applicants are represented by Me Irene Terrel (Paris).
In December 2010, the Court rejected the application for suspension of the extradition proceeding (art.39). On September 14th 2011, the applicants were arrested and extradited to Germany to be detained in prison.
On October 26th 2010, the press office of the European Court of Human Rights has confirmed that all interim measures applications (art. 39 of the rules of the court) requesting a suspension of a deportation order (under Dublin regulation) of an asylum seeker to Greece are currently granted.
This policy will be in effect until a ruling of the Court in the case M.S.S v. Belgium and Greece (30696/09). A public hearing on the case took place on September 1st 2010.
None of the French N.G.O (ASSFAM, La Cimade , Forum Réfugiés, France Terre d’Asile, Ordre de Malte France and Anafe) mandated by the French government to provide legal assistance to asylum seekers in immigration detention centers answered our e-mail for comments.
On June 27th 2006, the appeal court of Orleans sentenced under art. 322-3 1° of the penal code, Mr. Francois Mandil to 2 months suspended sentence and €1,000 fine for damaging a genetically modified corn field of Monsanto during a political rally in 2004. On May 31 2007, the supreme court (Cour de cassation) rejected his appeal (case 06-86628).
On December 17th 2007, the applicant refused to comply with an order of the prosecutor of the Republic, to give a sample of his mouth cells for the storage of his DNA profile on the police database FNAEG.
On June 25th 2008, the Law 2008-595 created the article L671-15 3° of the rural code which allows a sentence of up to 3 years in jail and €150,000 in fines for causing “damages to genetically modified crop field“. But police officers are not allowed to profile DNA of citizen convicted under article L671-15 3°.
On January 22nd 2009, the court of appeal of Besançon sentenced the applicant under article 706-56-II of the code of penal procedure, to a fine €420 for refusing to give a sample of his mouth cells. On June 10th 2009 the supreme court (Cour de cassation) ruled his appeal as inadmissible.
On December 16th 2009, the applicant filed his case with the ECHR arguing a violation of article 8 of the Convention. On October 13th 2011, an article was published in Est Republicain claiming that the applicant received a settlement proposal from the “French government” of €1,500. It is unknown if the settlement proposal was from the registry of the Court and if it acknowledges the violation of article 8 of the Convention. The lawyer of the applicant qualified the settlement proposal of “incongruous” because the applicant was looking for justice and not money.
Surprisingly, on December 13th 2011, the 5th section of the Court ruled the application inadmissible on the ground that the settlement proposal was confidential (art.39-2) and that the release of the information to the newspaper Est Republicain was “malicious” , an “abuse of process” and the lawyer statement “casted discredit on the Government’s approach“.
The applicant was represented by Me Randall Schwerdorffer.