ECtHR, M.A. v. France (No. 9373/15) 2 July 2018

Printer-friendly versionPrinter-friendly version
Country of Applicant: 
Algeria
Date of Decision: 
02-07-2018
Citation: 
ECtHR, M.A. v. France (No. 9373/15), 2 July 2018
Court Name: 
European Court of Human Rights, fifth section
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.

Case Law Cited: 

ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89)

ECtHR - Aleksanya v Russia, Application No. 46468/06

ECtHR- Assanidze v. Georgia [GC], Application no. 71503/01

ECtHR - Popov v Russia, Application No. 26853/04

ECtHR - Paladi v. Moldova [GC], Application No. 39806/05

ECtHR - Savriddin Dzhurayev v. Russia, Application No. 71386/10, UP

ECtHR - C.B.Z. v. Italy, no 44006/06, 24 March 2009

ECtHR - Soltana v. Italy, no 37336/06, 24 March 2009

ECtHR - Ben Salah v. Italy, no 38128/06, 24 March 2009

ECtHR - X. v. Switzerland, no. 16744/14, 26 January 2017

ECtHR - M. X. v. France (dec.), no 21580/10, 1 July 2014

ECtHR - Y.P. and L.P. v. France, Application No. 32476/06

ECtHR - Mi. L. v. France, Application No. 23473/11

ECtHR - Aquilina v. Malta [GC], Application No. 25642/94

ECtHR - Bahaddar v The Netherlands (Application no. 25894/94)

ECtHR - Micallef v. Malta [GC], no 17056/06, 15 October 2009

ECtHR - Raninen v Finland (Application no. 20972/92)

ECtHR - Kudla v Poland [GC], Application No. 30210/96

ECtHR - Selmouni v. France [GC], Application No. 25803/94

ECtHR - Daoudi v. France, Application No. 19576/08

ECtHR - Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (no. 2) [GC], Application No. 32772/02
Other sources cited: 

- 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

Authentic Language: 
English
State Party: 
Armenia
France
National / Other Legislative Provisions: 
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law L 711-1
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law L 712-1
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.731-2
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L. 741 4
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law) Art L.742-6
France - Criminal Code - Art. 131-10