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In 2010, the French preventive mechanism under OPCAT (general controller of the detention facilities) published reports on its visits of the detention facilities in the airports of Bordeaux, Paris-Charles de Gaulle and Strasbourg in 2009. They revealed an administrative practice of the French border police to temporarily detain some passengers arriving on flights from outside the Schengen area, prior to decisions on their entry into France.
The passengers are arrested at the passport control in the terminals but also at preliminary passport checks in the gangways (CommDH(2006)2 §193). These preliminary passport checks seems unlawful as there are not “prescribed by law”.
The passengers are then detained incommunicado in cramped police cells inside the terminals (CPT/Inf (2001)100 §50, CPT/Inf (2003) 40 §22, CPT/Inf (2007)44 §27) or locked in the terminals (CommDH(2006)2 §194, HRW Lost in Transit p16). They are not informed of the reasons of their arrest and of their right to have their consulate notified of their detention (art.36 Vienna Convention on Consular Relations). They are not allowed the assistance of a lawyer (CPT/Inf (2003) 40 §39). The border police don’t record the reasons and the time of these detentions and the ethnicity of the passengers detained. It was alleged that some passengers were locked in a terminal for up to 10 days (CPT/Inf (2003) 40 §40).
On June 25th 1996, the ECHR ruled in judgment Amuur v. France (19776/92) that the detention for 20 days of four asylum seekers in the terminal of the airport Paris-Orly, was not “prescribed by law” (§53) and a violation of article 5-1 of the Convention. On September 25th 1998, the Committee of Ministers found in its resolution DH (98) 307 that the law 92-625 of July 6th 1992 as a general measure, will prevent further violation of article 5-1. But this law only allows the detention of the arriving passengers once they are notified of a refusal of entry into France (articles L-221-1 of the code of migration and asylum).
Therefore, the detention of arriving passengers prior to a decision on entry into France, is not “prescribed by any law” (NGO ANAFE Note June 2010 p3) and a violation of article 5-1 of the Convention. The absence of information on the reason of the detention is a violation of article 5-2. The lack of detention record, of lawyer assistance and access to a consular officer forbid the passenger to challenge the lawfulness of his detention in violation of article 5-4 and to enforce his right to compensation in violation of article 5-5 of the Convention.
On n/a, the asylum claims of R.M and M.M were rejected. On n/a, the applicants were detained with their 7 months old baby in the immigration facility of n/a awaiting their deportations to n/a.
Under articles L511-4 and L521-4 of the code of migration and asylum, illegal minors can’t be deported from France and therefore can’t be detained in any immigration facility.
On May 28th 2011, the applicants submitted their case to the European Court of Human Rights arguing that their deportations to n/a will be a violation of articles 2 and 3 of the Convention. They added that the detention of their 7 months old baby in the immigration facility of n/a was a violation of articles 3 and 5-1-f). Finally, they complained that there was no proceeding to rule on the lawfulness of their detention and to release them if their detention was unlawful (habeas corpus), in violation of article 5-4.
The applicants are represented by Me Jerome Canadas (Toulouse) who didn’t return our emails.
n/a : non available on the Hudoc database of the Court.
On July 14th 1998, Mr. Claude Baudoin was arrested for “assault” on a hospital security guard and then detained on mental health ground by the order of the mayor of Bordeaux. On July 16th 1998, the prefect of Gironde ordered his mental health detention. He was detained in the special detention unit (UMD) of the hospital Cadillac.
On July 28th 1998, the applicant submitted a motion to be released. On May 30th 2002, the appeal court of Bordeaux rejected his motion. On February 14th 2004, the president of the supreme court denied the applicant legal aid to appeal the decision.
In several decisions, the administrative tribunal and the administrative appeal court of Bordeaux annulled all the orders of detention from July 16th 1998 to May 17th 2004 which were giving a legal basis for 6 years of detention.
On August 13th 2003, the applicant submitted his case to the European Court of Human Rights arguing that his mental health detention was a violation of article 5-1-e) of the Convention, the absence of information on the ground for detention a violation of article 5-2 and his condition of detention for 6 years in hospital Cadillac was a violation of article 3 of the Convention.
He added that following his arrest he was not brought to a judge in violation of article 5-3 of the Convention, that the requirement to challenge his mental health detention both in administrative and judicial courts was a violation of articles 5-4 and 5-5, that the length of proceedings in administrative court was a violation of article 6-1, that the refusal of legal aid by the supreme court was a violation of article 6-1, that forced medical treatments and seizure of his letters by the hospital were in violation of article 8, keeping him in a detention ruled illegal by the court was also a violation of article 3 and the lack of remedies a violation of article 13. The applicant was represented by Mr Philippe Bernardet a sociology researcher of CNRS.
On July 8th 2005, the motion to be released of the applicant of June 2nd 2004 was rejected by the appeal court of Bordeaux. On February 2006, the motion of October 12th 2005 was again denied.
On September 27th 2007, the Court ruled that most of the allegations of violations of the Convention were inadmissible under articles 35-1 and 35-3 of the Convention on surprising and conflicting grounds. The Court ruled that the applicant was not arrested for “assault” on July 14th 1998 under article 5-1-c) so the allegation of violation of article 5-3 was inadmissible. This means that his arrest didn’t have any legal basis as there is no provision under French law for an arrest on mental health ground (art.5-1-e)) but the Court failed to acknowledge its own allegation of violation of article 5-1 of the Convention. Furthermore the Court ruled that the allegations of violations of article 3 and 8 of the Convention were inadmissible on the ground that the applicant didn’t submit them to the French courts. But the Court didn’t specify which remedies where available to the applicant and which case-law of the French court makes these remedies effective. The Court also found the allegation of violation article 5-5 inadmissible even though it took 7 years for the applicant to have an administrative court annulled the order of detention of July 16th 1998, and that he needed to start another litigation in a civil court to obtain damages following the administrative court ruling. The Court also found inadmissible the allegation of violation of article 5-1-e) for the mental detention of 6 years (except from October 21th 2004 to November 9th 2004) because the administrative court annulled all the orders of detention even though the applicant didn’t receive any damages for this illegal detention.
On November 18th 2010, the Court found a violation of article 5-1-e) of the Convention, on the ground that there was no order of detention from October 21st 2004 to November 9th 2004. The Court also found a violation of article 5-4 on the ground that the applicant didn’t benefit from a speedy and effective remedy . It awarded the applicant €20,000 for damages and €3,000 for his legal fees.
On December 15th 2002, Ms. Yekaterina Popov arrived in France from Kazakhstan, to seek asylum. On June 10th 2003, her husband Mr. Vladimir Popov joined her. On January 20th 2004, they were denied refugee status by OFPRA. On May 31st 2005, their appeal to the CRR was rejected. On n/a another application for refugee status was made by the family.
On August 27th 2007, the applicants and their two children (five months and 3 years old) were arrested and detained in police custody on an investigation for “illegal stay“. Then they were detained in an hotel in Angers before being transferred to the immigration detention center of Rouen-Oissel.
On September 10th 2007, the applicants filed their application with the ECHR arguing a violation of articles 3, 5-1-f) and 8 of the Convention due to their detention with their children in police custody and in the immigration detention center. In addition they complained of the violation of articles 3 and 8 if they were to be deported to Kazakhstan. On September 12th 2007, the applicants and their children were released. On July 16th 2009, the CRR granted them refugee status.
On October 19th 2009, the case was communicated to the French Republic with questions to be answered within 16 weeks. On January 19th 2012, the Court ruled that the detention of the 2 children was in violation of article 3 on the ground that the immigration detention center of Rouen-Oissel was not adapted to detain children. It found a violation of articles 5-1-f) and 5-4 of the Convention because the detention of minor is not allowed by the French code of migration and asylum. The Court added that the detention of the family was a violation of article 8 of the Convention.
It awarded the family €10,000 for moral damages and €3,000 for legal fees. The applicants were represented by Me Denis Seguin.
Surprisingly, the Court found no violation of article 5-4 for the parents on the ground that a judge ruled on the legality of their detention at the request of the immigration office. Under French code of migration and asylum, the parents were not entitled to take any proceeding by which the lawfulness of their detention shall be decided (habeas corpus). The Court also didn’t rule on the allegations of violations of the Convention during the detention of the family in police custody.
European Court of Human Rights News 