EUROPEAN COURT OF HUMAN RIGHTS

263

26.04.2007

Press release issued by the Registrar

CHAMBER JUDGMENT
GEBREMEDHIN [GABERAMADHIEN] v. FRANCE

The European Court of Human Rights has today notified in writing its Chamber judgment[1] in the case of Gebremedhin

[Gaberamadhien] v. France (application no. 25389/05).

The Court held unanimously that there had been

· a violation of Article 13 (right to an effective remedy) taken in conjunction with Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights;

· no violation of Article 5 § 1 (f) (right to liberty and security) of the Convention.

Under Article 41 (just satisfaction), the Court awarded the applicant 8,300.60 euros (EUR) for costs and expenses. (The judgment is available only in French.)

1.  Principal facts

The applicant, Asebeha Gebremedhin [Gaberamadhien], is an Eritrean national aged 27 (born on 25 March 1979), who is currently in accommodation in Paris provided by a non‑governmental organisation.

In 1998, like many other individuals, the applicant and his family were displaced from Ethiopia to Eritrea, where he worked as a reporter and photographer for the independent newspaper Keste Debena, whose editor was at that time the journalist, Milkias Mihretab. Both men were arrested in 2000, apparently on account of their professional activities. Mr Mihretab was imprisoned for eight months and the applicant for six months.

In September 2001 Mr Mihretab fled the country. The applicant, who was arrested and interrogated about his journalist friend, is said to have been tortured. He was imprisoned for six months and managed to abscond from the prison hospital, where he had been transferred after contracting tuberculosis.

After spending some time in Sudan the applicant, according to his version of events, arrived on 29 June 2005, without any identity documents, at Charles de Gaulle airport in Paris. The French

…/.

Government disagree. On 1 July 2005 he applied for leave to enter France on grounds of asylum. On 5 July 2005 OFPRA (the French authority for the protection of refugees and stateless persons) issued the opinion that the applicant should not be admitted to France on account of inconsistencies in his claims. The following day the Ministry of the Interior dismissed his application and gave directions for his removal “to Eritrea, or if need be to any country where he may be legally admissible”. An appeal by the applicant against that decision was dismissed, on 8 July 2005, by the urgent applications judge of the Cergy‑Pontoise Administrative Court.

The applicant lodged an application with the European Court of Human Rights, which indicated to the French Government, on 15 July 2005, pursuant to Rule 39 (interim measures) of the Rules of Court, that it was desirable not to remove him to Eritrea prior to the forthcoming meeting of the appropriate Chamber. On 20 July 2005 the French authorities granted him leave to enter France and then issued him with a temporary residence permit.

On 7 November 2005 OFPRA granted the applicant refugee status.

2.  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 14 July 2005 and declared partly admissible on 10 October 2006.

The National Association for Assisting Foreign Nationals at Borders was given leave to intervene as a third party in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court).

A chamber hearing on the admissibility and merits took place in the Human Rights Building, Strasbourg, on 16 January 2007.

Judgment was given by a Chamber of 7 judges, composed as follows:

András Baka (Hungarian), President,
Jean-Paul Costa (French),
Ireneu Cabral Barreto (Portuguese),
Antonella Mularoni (San Marinese),
Elisabet Fura-Sandström (Swedish),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian), judges,

and also Sally Dollé, Section Registrar.

3.  Summary of the judgment[2]

Complaints

The applicant complained, under Article 13 of the Convention taken in conjunction with Article 3, that under French law there was no remedy with suspensive effect against decisions refusing leave to enter or directing removal. He further complained, under Article 5 § 1, that he had been unlawfully deprived of his liberty while he was held in the international zone, from 29 June to 1 July 2005, and subsequently in the waiting area until 20 July 2005.

Decision of the Court

Article 13 in conjunction with Article 3 of the Convention

The Court observed that, under French law, a decision to refuse entry to the country acted as a bar to lodging an application for asylum; moreover, such a decision was enforceable, with the result that the individual concerned could be immediately returned to the country he or she claimed to have fled. In the instant case, following the application of Rule 39 of the Rules of Court, the applicant had been granted leave to enter France and had hence been able to lodge an application for asylum with OFPRA, which granted him refugee status in November 2005.

The Court recalled that, in its admissibility decision, it had found that the applicant could no longer claim the status of victim of an alleged violation of Article 3 of the Convention since, under the Geneva Convention of 28 July 1951 relating to the Status of Refugees, he could no longer be deported to his country of origin once he had been granted refugee status. However, a question arose in the present case as to the applicability of Article 13 taken in conjunction with Article 3 of the Convention.

Under French law, in order to lodge an application for asylum with OFPRA, foreign nationals had to be present on French territory. Consequently, they could not submit an application on arrival at the border unless they had previously been granted leave to enter. If they did not have the necessary documents for that purpose, they had to apply for leave to enter the country on grounds of asylum; they were then held in a “waiting area” for the time needed to examine whether or not their planned asylum application was “manifestly ill-founded”. If the authorities deemed the application to be “manifestly ill-founded”, they rejected the request for leave to enter the country, and the individual concerned was automatically liable to be removed without having had the opportunity to lodge an asylum application with OFPRA.

The individuals concerned by this procedure, known as “application for asylum at the frontier”, could appeal against the ministerial decision refusing them leave to enter, but could also apply to the urgent applications judge. While the latter procedure appeared on the face of it to offer solid guarantees, it did not have an automatic suspensive effect, with the result that the person concerned could, quite lawfully, be deported before the urgent applications judge had given a decision.

Given the importance which the Court attached to Article 3 of the Convention and the irreversible nature of the harm that might occur if the risk of torture or ill-treatment materialised, it was a requirement of Article 13 that the persons concerned should have access to a remedy with automatic suspensive effect. As the applicant, while in the “waiting area”, had not had access to such a remedy, he had been deprived of an “effective remedy” in respect of his complaint under Article 3.

The Court therefore held that there had been a violation of Article 13 taken in conjunction with Article 3.

Article 5 § 1 (f) of the Convention

There was nothing in the case file to suggest that the applicant had arrived at the airport before 1 July 2005. The Court therefore considered that the deprivation of the applicant’s liberty had begun when he was placed in the “waiting area” on 1 July 2005, and had lasted until 20 July 2005, when he was given leave to enter France. On the twentieth day after being placed in the waiting area, the applicant had been granted leave to enter the country and been issued with a safe conduct, putting an end to his deprivation of liberty. Not only had the overall period of detention not exceeded the legal maximum of 20 days, but the applicant’s detention in the waiting area from 15 to 20 July 2005 had also been based on a court decision.

Furthermore, since the applicant, by his own admission, had had no travel papers, the Court saw no reason to doubt the Government’s good faith in stating that the authorities had had to conduct checks as to his identity before granting him leave to enter the country. Finally, the Court considered that the length of time for which the applicant had been held in the waiting area for that purpose had not exceeded what was reasonable in the circumstances of the case. His detention in the waiting area after 15 July 2005 had therefore amounted to “lawful detention of a person to prevent his effecting an unauthorised entry into the country”.

Accordingly, the Court held that there had been no violation of Article 5.

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The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Press contacts

Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)
Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)
Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

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[1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17‑member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.