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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 August 15th 1994, Mr. Ramirez Sanchez a citizen of Venezuela was abducted in Sudan and then victim of an extrajudicial rendition to France carried out by officers of the French domestic intelligence agency (DST).
From August 15th 1994 to October 17th 2002, he was placed in solitary confinement and transferred between the 3 infamous jails in the Paris region (La Sante, Fresnes, Fleury-Merogis) by decisions of the administration of the ministry of Justice on unknown ground.
On June 24th 1996, the European Commission of Human Rights ruled in case Ramirez Sanchez v. France (28780/95) that the abduction and the extrajudicial rendition to France were not a violation of articles 3 and 5 of the Convention.
On December 25th 1997, he was condemned to life in prison for the murder on June 27th 1975 in Paris of 2 officers of DST and one agent of an unknown agency, in unclear circumstances. From October 17th 2002 to March 18th 2004, he was transferred to the prison of Saint-Maur and placed in a normal unit.
From March 19th 2004 to January 5th 2006, he was again placed in solitary confinement and transferred again between the 3 infamous jails (La Sante, Fresnes, Fleury-Merogis) because he talked about politics to a journalist. From January 5th 2006, he was transferred to the prison of Clairvaux and placed in a normal unit.
On July 4th 2006, the Grand Chamber of the E.C.H.R ruled by 12 votes against 5 votes, in case Ramirez Sanchez v. France (59450/00), that the solitary confinement the applicant for 8 years (1994-2002) was not a violation of article 3 on the ground that… the applicant would have talk about politics with other inmates (§149). In solitary confinement the applicant was waken up every hour of the night by prison wardens (§95).
The Grand Chamber ruled also that the absence of a domestic remedy to challenge a decision of solitary confinement was a violation of article 13 for the first period (1994-2002). The applicant was represented by Me Isabelle Coutant Peyre (Paris).
For the second period (2004-2006), the Grand Chamber ruled that since the administrative supreme court judgment Remli v. minister of Justice no 252712 on July 30th 2003, the administrative tribunal was a “remedy” to challenge of decision of solitary confinement. It then didn’t find a violation of article 13 and didn’t examine the violation of article 3 because of this remedy (§113). Surprisingly, the Court didn’t examine the effectiveness of the remedy of the administrative tribunal even though the applicant was questioning it in its observations of October 3rd 2005 (§3) and December 30th 2005 (§3).
Mr. Remli was serving in solitary confinement a sentence after an unfair trial (judgment Remli v. France (16839/90)). The administrative supreme court judgment Remli v. minister of Justice no 252712 on July 30th 2003 ruled that the decision of …June 18th 1998 to detain the plaintiff in solitary confinement was “illegal” but it didn’t award him damages and didn’t find a violation of articles 3 or 8 the Convention. No disciplinary or criminal action were taken against the chief of prison following the ruling.
The remedy of the administrative court system is a lengthy one. It can take up to 2 and a half years for the administrative tribunal to rule on the legality of the solitary confinement decision (administrative appeal court of Paris, judgment 09PA05734 on October 14th 2010) which is not suspended pending ruling.
Although article 726-1 of the code of penal procedure (law 2009-1436) allows a detainee to file for an “urgent ruling” within 48 hours on the solitary confinement decision, it is constant case-law that the solitary confinement decision is inadmissible to be ruled within 48 hours (administrative supreme court judgment 337534 on March 22th 2010).
On February 15th 2006, the Commissioner for Human Rights Mr. Alvaro Gil-Robles stated in his report following a visit to French prisons in 2005 : “Prisoners placed in solitary confinement have no effective administrative remedy at their disposal” (§133).
On December 2007, the CPT stated in its report CPT/Inf (2007)44 following a visit to French prisons in autumn 2006, that for the remedy to the administrative tribunal to be effective, the solitary confinement decision should be admissible to be ruled within 48 hours. The CPT also found that detainees were not informed of their rights to appeal the decision (§157).
In September 2009, the 4th edition of the ministry of Justice “handbook for new inmates” didn’t inform about the remedy to the local administrative tribunal on a solitary confinement decision (see below p50).
On April 2010, the French N.G.O OIP stated in its observations to the U.N Committee against Torture : “Remedies against such measures are limited” (p21).
Surprisingly, on November 30th 2010, the Committee of Ministers ruled in its Resolution CM/ResDH(2010)162 that article 726-1 of the code of penal procedure and case-law administrative supreme court judgment Remli v. minister of Justice no 252712 were satisfying as general measures to prevent violation of article 13 of the Convention.
Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies states : However, the remedy required must be “effective” in law as well as in practice; – this notably requires that it be able to prevent the execution of measures which are contrary to the Convention and whose effects are potentially irreversible; (..) the “effectiveness” of a “remedy” within the meaning of Article 13 (..) implies a certain minimum requirement of speediness.