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On April 26th 2007, the Court found a violation of articles 13 and 3 of the Convention in judgment Gebremedhin v. France (25389/05), on the ground that the emergency appeal of the applicant on the refusal to admit him in France to file his asylum claim, didn’t automatically suspend his removal. The applicant was advised by Me Jean-Eric Malabre (Limoges/Paris) and the NGO Anafe submitted observations amicus curiae to the Court.
On November 21th 2007, article 34 of the law 2007-1631 modified article L213-9 of the immigration and asylum code. It now allows asylum seekers who are denied entry, to appeal this decision to the administrative tribunal. Their removal is suspended for 48 hours or until the decision of the tribunal if an appeal is filed.
According to the report (see below) of the French ombudsman(mediateur de la Republique) and the French NHRI (CNCDH), the new remedy lacks effectiveness as asylum seekers who are denied entry, are detained and have only 48 hours to file their appeal (case Ma. v. France (4920/08) communicated). Moreover they don’t qualify for legal aid (article 3 of law 91-647) and have to finance their own lawyer and their own interpreter to file the appeal. They added that further appeals to the administrative appeal court and to the administrative supreme court (conseil d’etat) don’t suspend the removal (case Se v. France (10085/08) communicated).
Furthermore, citizens who didn’t state their intent to claim asylum before being denied entry, don’t benefit from the suspension of their removal during their appeal, even they fear a violation of article 3 if deported. Ms. Laure Blondel from the NGO Anafe gave us the following example. On February 22th and 23th 2011, the French border police attempted to deport a Senegalese citizen to Libya notwithstanding that an hearing was scheduled on February 24th 2011 on his emergency appeal.
On February 21th 2008, the Court found a violation of article 6-1 of the Convention in judgment Ravon and others v. France (18497/03) on the ground that the applicants couldn’t appeal the tribunal order of searches of their offices and their home. The searches in Marseilles and Paris were at the request of the tax administration (art.L16B of book of tax procedure). The applicants were advised by Me Delphine Ravon (Paris).
On August 4th 2008, article 164 of law 2008-776 modified article L16B and introduced the right to appeal the tribunal order to the president of the appeal court. This right is extended retroactively to almost all tax searches carried since January 1st 2005 even though an appeal to the supreme court was rejected.
According to Me Delphine Ravon (see below), the right to appeal was applied retroactively to prevent tax cases to be dismissed by the administrative tribunals, saving the French government €1.3 billion (years 2006-2007). She believed that this measure will provoke further violations of article 1 of protocol 1 and article 6-1 of the Convention and complained that it is not possible for citizens and companies to reach the judge during the searches.
In fact, the Court strike out cases SAS Arcalia (33088/08), Naco Trading v. France (29377/08) and found inadmissible cases Sarl Comptoir Aixois des Viandes (19863/08), Provitel (29437/08) and Etoc v. France (40954/08) on the ground that the right of appeal was available.. after they filed their cases at the Court. The Court rejected the allegations of the applicants (Provitel v. France (29437/08)) that the appeal is not effective and affirmed that the effectiveness of this new remedy can’t be judged on the first 6 months of its case-law.
Furthermore, the supreme court (Cour de cassation) will have to rule again on cases it had previously rejected and it raises the issue of the impartiality and the composition of the supreme court to respect article 6-1 of the Convention.
On July 25th 2005, the Court ruled in case Siliadin v. France (73316/01) a violation of article 4 of the Convention. The Court found that the French government failed to its positive obligation to obtain the criminal conviction of a couple B. who kept the applicant, a minor from Togo in domestic slavery for several years.
At the 976th meeting of the Committee of Ministers on October 17th to 18th 2006, the French delegation announced that the articles 33 to 37 of law 2003-239 of March 18th 2003 were sufficient as a general measures to avoid further violation of article 4 of the Convention. Theses articles brought minor changes to the wording of articles 225-13 to 225-15-1 of the penal code on degrading working and living conditions.
On May 1st 2008, the Convention on Action against Trafficking in Human Beings of the Council of Europe entered into force in France. But the legislative measures adopted by the French government failed to define “forced labour or services, slavery or practices similar to slavery and servitude” and to establish them as criminal offenses in its penal code. Thereby, the French government failed in its article 225-4-1 of the penal code, to establish as criminal offenses the trafficking in human beings (art.18) and the use of services of a victim of trafficking (art.19).
On December 18th 2009, the French NHRI (CNCDH) released its Opinion on combating the trafficking and exploitation of human beings in France highlighting the failings of the French government to “ensure effective, adequate repression of trafficking and exploitation” and to “guarantee the effective respect of victims’ rights”.
In November 2010, the NGO Comité Contre l’Esclavage Moderne (CCEM) submitted its observations (see below) on the general measure taken by France to the Department for Execution of Judgments under Rule 9-2. Surprisingly, the observations were not published by the Department in violation of Rule 8-4. The observations showed the failings to obtain criminal conviction in cases of trafficking in human beings.
On January 19th 2011, the case C.N and V. v. France (67724/09) was communicated to the agent of the French government with questions on the measures taken by France to prevent violation of article 4 of the Convention. In this case, the prosecution failed again to obtain the criminal conviction of a couple M. who kept the applicants, two minors from Burundi in domestic slavery for several years.
The Department for Execution of Judgments has not yet made public the agenda of the 1108th meeting from March 8th to 10th 2011 in violation of Rule 2-1. It is therefore unknown if any monitoring of the general measures taken by France is going to be discussed.
Update (April 30th 2011) :
The Department for Execution of Judgments has recently released the observations of the NGO Comité Contre l’Esclavage Moderne (CCEM) with the “answer” of the French government who pretends not to have access to the prosecution files of 3 slavery cases.
After a first reading of Bill 563 at the National Assembly on November 25th 2010 (see previous post), the Bill 563 was sent back to the Senate for a second reading.
On November 30th 2010, at the 1100th meeting of the Committee of Ministers, it was announced that France didn’t submit yet any observation regarding the general measures taken following judgment Medvedev (3394/03) on March 29th 2010.
On 7th December 2010, the rapporteur Senator Dulait couldn’t answer the question of the president of the foreign affairs commission on how the release of the detainee will be organized following a judge order, as there is no provision in Bill 563 for this occurrence.
On December 22th 2010, Senator Boutant questioned the compliance of Bill 363 with the judgments Medvedyev v. France (3394/03) and Moulin v. France (37104/06) as the arrest of a sailor is not notified to a judge (art.5-1-c) but to the prosecutor of the Republic and there is no provision for detainee to have access to a lawyer (art.6-1, 6-3). Mr. de Raincourt representing the defense minister at the hearing, answered that he didn’t want to discuss this mater because it was not “his mission“.
A few minutes later, Bill 563 was passed by the Senate with no amendment. On January 5th 2011, President Sarkozy signed Bill 563 into Law 2011-13.
Law 2011-13 allows in derogation of the code of penal procedure, the arrest and the indefinite incommunicado detention of sailors who were on board ships which are suspected of drug trafficking, attempt of illegal entry in France or piracy. Law 2011-13 creates a French Guantanamo in the high seas.
Following our request for comments on our previous post, Mr. Tobias Thienel a contributor to the Invisible College Blog of the School of Human Rights Research, submitted us the following opinion on Bill 563 (see below).
The court docket of the ECHR contains two pending cases on the arrest and detention in high seas. Case Vassis and others v. France (62736/09) on the detention of the sailors of Junior was filed on October 29th 2009. Case Samatar and others v. France (17301/10) regarding the detention of Somali citizens pending the opening of an investigation on the hostage taking aboard the Ponant, was filed on March 16th 2010. Both have not yet been communicated to France
On October 13th 2010, the ministry of Justice introduced Bill 2855 to the National Assembly (House of Representative of the French Republic) to reform police custody to comply with articles 6-1 and 6-3 of the Convention. On November 29th 2010, Human Rights Watch submitted a brief on Bill 2855 to the Legal Affairs Committee of the National Assembly.
Representative Philippe Houillon (UMP) submitted amendments proposals CL108, CL109, CL110, CL111 , CL117 (see below) to the Bill 2855, in order comply with judgment Moulin v. France (37104/06).
The amendments proposals CL108 and CL109 require that police custody are under the control of a judge instead of a prosecutor in compliance with article 5-1-c) of the Convention. The explanatory note of CL108 names this new control a French “habeas corpus“. But CL108 doesn’t comply with article 5-4 of the Convention as there is no provision allowing the lawyer of the detainee to file a release motion with the judge (Zervudacki v. France (73947/01)).
CL110 and CL111 require all detention in police custody over 24 hours to be ordered by a judge.
Lastly, CL117 makes mandatory to bring suspect before a judge if they are not released by the prosecutor following police custody. Unfortunately, this is not in compliance with article 5-3 of the Convention as police custody can last up to 2 to 6 days in France, and the time limit to be brought before a judge is not set.
Moreover, it could be the same judge who ordered the detention over 24 hours and who later control this same order.
Update : On December 15th, the Legal Affairs Committee voted in favor of amendments CL108 and CL109 but against CL111 and CL117. CL110 was removed by the Representative Philippe Houillon.
On March 29th 2010, the Grand Chamber of the ECHR ruled [en] that the arrest and the detention of the sailors of the cargo ship “Winner” by the French Navy was in violation of article 5-1-c) of the Convention. It was found that their arrest and their detention on the high seas for 13 days was not lawful for lack of legal basis. Controversially, the Grand Chamber didn’t find a violation of article 5-3 of the Convention by 9 votes against 8 because it was alleged by the French Republic that the detainees “met” an investigating judge within 8 hours of their arrival on French soil.
On November 25th 2010, bill 563 was passed by the National Assembly to introduce provisions in the code of defense in derogation of the code of penal procedure, for the arrest and detention on the high seas, of sailors on board ships which are suspected of drug trafficking, attempt of illegal entry in France or piracy.
According to new article L-1521-12 of the code of defense, no cause is needed for the arrest and detention by the French Navy of sailors and no judge is notified of their arrest. Furthermore, according to new article L-1521-14, their detention is deemed indefinite until a transfer to an “authority“.
Bill 563 is therefore in violation of articles 5-1-c) of the Convention for a lack of legal basis. The French Republic still didn’t take appropriate general measure to prevent further violation of article 5-1-c) of the Convention, so there is violation of articles 1 and 46-1 of the Convention.
After 2 days of detention, the French Navy may request a judge to authorize further detention. The judge have no right to access the military files regarding the arrest and the detention of the sailors, and no power to order their immediate release to their own ship, the nearest ship or a port.
If the sailors are finally brought to the French Republic, the lawfulness of their arrest and detention on the high seas will be only reviewed by an investigation chamber if their defense lawyers submit a motion to dismiss, within 6 months of their indictment (art. 170, 173-1 of the code of penal procedure). In the case of the detainees of the “Winner“, the chamber ruled 3 months after the arrival in France. In other recent cases, the investigation chamber ruled 9 months (case “Junior” CC 09-80157), 11 months (case “Ponant” CC 09-8277) and 12 months in (case “Carré d’As” CC 09-87254) after the arrival.
Bill 563 is in violation of article 5-3 of the Convention which requires an automatic, prompt review of the lawfulness of the arrest and the detention (§124,125 Grand Chamber judgment Medvedyev v. France (3394/03)).
Moreover, bill 563 doesn’t create a “habeas corpus” remedy for the detainees on the high seas in violation of article 5-4 of the Convention or an enforceable right to compensation for the victim of unlawful detention in violation of article 5-5 of the Convention.
Finally, bill 563 brings serious concerns about the protection of the detainees on the high seas against violations of article 3 and 8 of the Convention. The high sea detainees are held incommunicado with no access to a lawyer, a doctor, family members, delegates of UNHCR, ICRC and NGOs, and consulate officers (art. 36 of the Convention of Vienna on consular relations). The new article L-1521-13 allows only one mandatory examination by a military doctor within 10 days of a health check by a military nurse, itself within 24 hours of the arrest.
Even worse, new article L-1521-14 allows extra-judicial rendition to any “authory” of any countries. The rendition to countries known to practice death penalty or torture (ex: Somalia) will results in violations of articles 2 and 3 of the Convention and article 3 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The rendition of detainee claiming asylum will be in violation of article 33 of the UN Convention Relating to the Status of Refugees.