Deprivation of liberty / Restriction on the freedom of movement
II. RELEVANT DOMESTIC LAW A. Applications for refugee status 15. Under a circular from the Prime Minister dated 17 May 1985, on asylum-seekers, the temporary admission to France of aliens seeking asylum requires the issue of two documents in turn: a temporary residence permit "for the purpose of making an application to the OFPRA", valid for one month, and a receipt bearing the words "Asylum applied for", valid as a temporary residence and work permit for three months and renewable. However, an application to the OFPRA can be made only by persons given leave to enter French territory, and the decision to admit an alien is left to the discretion of the Minister of the Interior. 16. Under the procedure laid down in Decree no. 82-442 of 27 May 1982, which was in force at the material time, "Where immigration control is carried out by officers of the national police, any decision to refuse an alien leave to enter France shall be taken ... by the officer in charge of the checkpoint ..."; Article 12 of the decree provides: "Where an alien arriving at the border asks for asylum, a decision to refuse leave to enter France may be taken only by the Minister of the Interior, after the Minister of Foreign Affairs has been consulted." It was the Minister of the Interior ’ s practice to request the opinion, on an advisory basis, of the representative of the HCR. 17. Article 5, third paragraph, of Ordinance no. 45-2658 of 2 November 1945 on the conditions of aliens ’ entry into France and residence there provides: "Every refusal of leave to enter must be conveyed in a writtendecision, ... setting out reasons specific to the facts of thecase, one copy of which shall be given to the person concerned.An alien who has been refused entry shall be given theopportunity to inform or have informed the person whom he hassaid he intended to visit, his consulate or the lawyer of his choice." Law no. 89-548 of 2 August 1989 added to the foregoing provisions the following paragraph, which was applicable at the material time: "In no circumstances may refusal of entry give rise t orepatriation against the will of the person concerned before oneclear day has elapsed. An alien who has been refused leave to enter may be held on premises not under the authority of the prison service and for the time strictly necessary to arrange his departure, as provided in Article 35 bis ." 18. Article 35 bis of the Ordinance of 2 November 1945, in force at the material time, provided: "An alien may be held, if this is absolutely necessary, by areasoned written decision of the Prefect, on premises not underthe authority of the prison service and for the time strictlynecessary to arrange his departure, where: 1. he is not able to comply immediately with a decision torefuse him leave to enter French territory; or 2. being subject to a deportation order, he is unable to leave French territory immediately; or 3. being due to be expelled, he is unable to leave French territory immediately. For the application of sub-paragraph 1 of this Article, thePrefect may authorise an official having the status of a seniorlaw -enforcement officer ( officier de police judiciaire ) to signthe decision on his behalf. State Counsel shall be informed of the decision immediately. The alien shall immediately be informed of his rights through aninterpreter if he does not understand French. When twenty-four hours have elapsed from the decision to hold,the case shall be brought before the President of the tribunalde grande instance or a judge designated by him, who, afterhearing the person concerned in the presence of his lawyer, if any, or after the lawyer has been duly informed, shall make anorder for one or more of the supervision and control measures necessary to ensure his departure listed below: Surrender to the police or gendarmerie of all identity documents,in particular his passport, in exchange for a receipt valid asproof of identity; Compulsory residence in a specified place; In exceptional cases, holding for a further period on thepremises mentioned in the first paragraph of this Article. The extension order shall run from the expiry of the twenty-four- hourperiod laid down in this paragraph. These measures shall cease to apply at the latest when six dayshave elapsed since the issue of the order mentioned above." B. Holding in the international zone 1. The circular of 26 June 1990 19. At the material time the practice of holding in the international zone, also called the transit zone, was the subject of a circular from the Minister of the Interior (unpublished) of 26 June 1990 on the procedures for refusing aliens leave to enter France. The relevant passages of the circular read as follows: "... An alien who has been refused leave to enter and is waitingto be sent away has the right to freedom of movement inside theinternational zone, where such a zone exists and has facilitiessuitably adapted to the types of surveillance and accommodationrequired for the alien in question. If so, it will be necessaryto provide accommodation and take the necessary measures toensure that he does not enter French territory ... PROCEEDINGS BEFORE THE COMMISSION 30. The applicants Mahad, Lahima, Abdelkader and Mohammed Amuur and eighteen other Somali nationals applied to the Commission on 27 March 1992. They alleged breaches of Articles 3, 5, 6 and 13 of the Convention (art. 3, art. 5, art. 6, art. 13). 31. On the same day the President of the Commission indicated to the French Government, under Rule 36 of the Commission ’ s Rules of Procedure, that it was desirable, in the interest of the parties and the proper conduct of the proceedings, to refrain from sending the applicants back to Somalia before 4 April 1992. In addition, he asked the French Government to supply certain information about what was going to be done with them. On 2 April 1992 the Commission repeated the above indication in respect of those of the applicants who were still in France. Mahad, Lahima, Abdelkader and Mohammed Amuur had already been sent back to Syria on 29 March 1992. 32. On 18 October 1993 the Commission decided to strike out of its list those parts of the application (no. 19776/92) submitted by the other eighteen applicants, who had in the meantime been granted refugee status. It declared admissible the complaint that holding Mahad, Lahima, Abdelkader and Mohammed Amuur in the international zone of Paris- Orly Airport constituted unlawful detention, contrary to Article 5 para. 1 of the Convention (art. 5-1), and declared the remainder of the application inadmissible. In its report of 10 January 1995 (Article 31) (art. 31) it concluded, by sixteen votes to ten, that Article 5 (art. 5) was inapplicable and that there had therefore been no breach of that provision (art. 5). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT 33. At the hearing the Government asked the Court to "dismiss the application as inadmissible: in chief, because theapplicants [could] not claim to be victims of a violation of therights set forth in the Convention within the meaning ofArticle 25 thereof (art. 25); in the alternative, because theapplication [was] incompatible ratione materiae with theprovisions of Article 5 para. 1 of the Convention (art. 5-1)". AS TO THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 34. According to the Government, the applicants are not victims within the meaning of Article 25 of the Convention (art. 25). Invoking the subsidiary nature of the machinery set up by the Convention, the Government argued that for an individual to claim to be a victim of a violation of a right set forth in the Convention he must first have given the domestic courts the opportunity to declare that the alleged violation has occurred and to provide a remedy. As the Créteil tribunal de grande instance had given judgment in the applicants ’ favour on 31 March 1992, they could not reasonably maintain that the remedy before that court was not effective on the ground that the order under the expedited procedure had been made after they had been sent back to Syria. Their lawyer should have applied to the court earlier, the applicants having been in the transit zone since 9 March. 35. The Court notes that the Government raised this objection before the Commission, not as a separate issue but as part of their arguments concerning Article 5 (art. 5). It therefore considers that it has jurisdiction to deal with it, although the Commission, which had declared the complaint relating to that Article (art. 5) admissible, did not rule on the objection when determining the question of admissibility. 36. According to the Court ’ s established case-law, the word "victim" in the context of Article 25 (art. 25) denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 50 (art. 50). Consequently, a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a "victim" unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among many other authorities, the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 18, para. 34). It is true that in this case the Créteil tribunal de grande instance ruled that holding the applicants in the transit zone at Paris- Orly Airport was unlawful and ordered their release. However, that decision was not made until 31 March, whereas the applicants had been held in the transit zone since 9 March and, above all, had been sent back to Syria on 29 March. As the applicants were not able to secure the assistance of a lawyer before 24 March (see paragraph 8 above), it would have been almost impossible for them to apply to the court any earlier. With regard to the Government ’ s argument that it was possible for the applicants to obtain compensation for the prejudice they had suffered, the Court considers that the haste with which they were sent back made the prospects for the institution of proceedings to that end unrealistic. The objection must therefore be rejected. II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 (art. 5-1) OF THE CONVENTION 37. According to the applicants, holding them in the international zone at Paris- Orly Airport constituted deprivation of liberty contrary to Article 5 para. 1 (f) of the Convention (art. 5-1-f), which provides: "1. Everyone has the right to liberty and security of person.No one shall be deprived of his liberty save in the followingcases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent hiseffecting an unauthorised entry into the country or of a personagainst whom action is being taken with a view to deportation orextradition ." A. Existence of a deprivation of liberty 38. The applicants complained of the physical conditions of their "detention" in the transit zone. They maintained that these did not comply with Resolution (73) 5 of the Committee of Ministers of the Council of Europe on Standard Minimum Rules for the Treatment of Prisoners, or the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (see paragraph 28 above), or Recommendation No. R (94) 5 of the Committee of Ministers of 21 June 1994 (see paragraph 27 above). In addition, these conditions had been aggravated by the excessive length of their "detention", which was a decisive factor for assessment of the "deprivation of liberty" issue. They also emphasised that under the relevant international conventions and national legislation they should, as asylum-seekers, have enjoyed special protection and more favourable treatment than unlawful immigrants. The detention of asylum-seekers could not be justified unless their application for asylum was considered manifestly ill-founded, which was clearly not so in the applicants ’ case, as the other members of their family were granted refugee status by the French Office for the Protection of Refugees and Stateless Persons (see paragraph 11 above). 39. According to the Government, the applicants ’ stay in the transit zone was not comparable to detention. They had been lodged in part of the Hôtel Arcade where the "physical conditions" of the accommodation were described as satisfactory even in the CPT ’ s report. Their separation from the hotel ’ s other residents had been justified by the concern to prevent them from evading surveillance by the airport and border police and settling unlawfully in France. The original reason why they were held and for the length of time they were held had been their obstinacy in seeking to enter French territory despite being refused leave to enter. They could not therefore "validly complain of a situation which they had largely created", as the Court itself had held in the Kolompar v. Belgium judgment of 24 September 1992 (Series A no. 235-C). 40. While admitting that the applicants ’ stay in the international zone was no different - when its length was taken into account - from "detention" in the ordinary meaning of that term, the Commission concluded that Article 5 (art. 5) was not applicable. It considered that the degree of physical constraint required for the measure concerned to be described as "deprivation of liberty" was lacking in this case. 41. The Court notes in the first place that in the fourth paragraph of the Preamble to its Constitution of 27 October 1946 (incorporated into that of 4 October 1958), France enunciated the right to asylum in "the territories of the Republic" for "everyone persecuted on account of his action in the cause of freedom". France is also party to the 1951 Geneva Convention Relating to the Status of Refugees, Article 1 of which defines the term "refugee" as "any person who [has a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". The Court also notes that many member States of the Council of Europe have been confronted for a number of years now with an increasing flow of asylum-seekers. It is aware of the difficulties involved in the reception of asylum-seekers at most large European airports and in the processing of their applications. The report of the Parliamentary Assembly of the Council of Europe, of 12 September 1991, is revealing on this point (see paragraph 26 above). Contracting States have the undeniable sovereign right to control aliens ’ entry into and residence in their territory. The Court emphasises, however, that this right must be exercised in accordance with the provisions of the Convention, including Article 5 (art. 5). 42. In proclaiming the right to liberty, paragraph 1 of Article 5 (art. 5-1) contemplates the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. On the other hand, it is not in principle concerned with mere restrictions on the liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 (P4-2). In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5 (art. 5), the starting-point must be his concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance (see the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 33, para. 92). 43. Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention Relating to the Status of Refugees and the European Convention on Human Rights. States ’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum-seekers of the protection afforded by these conventions. Such holding should not be prolonged excessively, otherwise there would be a risk of it turning a mere restriction on liberty - inevitable with a view to organising the practical details of the alien ’ s repatriation or, where he has requested asylum, while his application for leave to enter the territory for that purpose is considered - into a deprivation of liberty. In that connection account should be taken of the fact that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country. Although by the force of circumstances the decision to order holding must necessarily be taken by the administrative or police authorities, its prolongation requires speedy review by the courts, the traditional guardians of personal liberties. Above all, such confinement must not deprive the asylum-seeker of the right to gain effective access to the procedure for determining refugee status. 44. The applicants arrived at Paris- Orly Airport from Damascus on 9 March 1992. They stated that they had fled their country of origin, Somalia, because they had been persecuted by the regime in power and their lives were in danger (see paragraph 7 above). As their passports had been falsified, the airport and border police refused them leave to enter French territory. They were then held in the airport ’ s transit zone (and its extension, the floor of the Hôtel Arcade adapted for the purpose) for twenty days, that is to say until 29 March, when the Minister of the Interior refused them leave to enter as asylum-seekers (see paragraph 11 above). They were immediately sent back to Syria without being able to make an effective application to the authority having jurisdiction to rule on their refugee status (see paragraph 9 above). 45. The Court notes that for the greater part of the above period the applicants, who claimed to be refugees, were left to their own devices. They were placed under strict and constant police surveillance and had no legal and social assistance - particularly with a view to completing the formalities relating to an application for political refugee status - until 24 March, when a humanitarian association, which had in the meantime been informed of their presence in the international zone, put them in contact with a lawyer. Moreover, until 26 March neither the length nor the necessity of their confinement were reviewed by a court (see paragraph 10 above). The applicants ’ lawyer applied on that date to the Créteil tribunal de grande instance, which, in making an order under the expedited procedure on 31 March (see paragraph 12 above), described the applicants ’ confinement as an "arbitrary deprivation of liberty". In a more general context, namely consideration of the constitutionality of the Law of 6 September 1991, the Constitutional Council had already noted on 25 February 1992 the restriction on personal liberty caused by "the combined effect of the degree of restriction of movement [holding an alien in the transit zone] entails and its duration" (see paragraph 21 above). The period of confinement criticised by the Constitutional Council on that occasion was equivalent to the length of time the applicants were held. 46. In concluding that there was no deprivation of liberty, the Government and the Commission attached particular weight to the fact that the applicants could at any time have removed themselves from the sphere of application of the measure in issue. More particularly, the Government argued that although the transit zone is "closed on the French side", it remains "open to the outside", so that the applicants could have returned of their own accord to Syria, where their safety was guaranteed, in view of the assurances which the Syrian authorities had given the French Government. The Commission added that the applicants had not shown that their lives or physical integrity were in danger in Syria or that the French authorities had prevented them from boarding a plane bound for that country. 47. The applicants maintained that such reasoning would amount to binding the application of Article 5 (art. 5) to that of Article 3 of the Convention (art. 3); this would be to ignore the specific object of Article 5 (art. 5), and its wording, which had to be strictly construed; it would also deprive Article 5 (art. 5) of any useful effect, particularly with regard to asylum applications. 48. The mere fact that it is possible for asylum-seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty, the right to leave any country, including one ’ s own, being guaranteed, moreover, by Protocol No. 4 to the Convention (P4). Furthermore, this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in. Sending the applicants back to Syria only became possible, apart from the practical problems of the journey, following negotiations between the French and Syrian authorities. The assurances of the latter were dependent on the vagaries of diplomatic relations, in view of the fact that Syria was not bound by the Geneva Convention relating to the Status of Refugees. 49. The Court concludes that holding the applicants in the transit zone of Paris- Orly Airport was equivalent in practice, in view of the restrictions suffered, to a deprivation of liberty. Article 5 para. 1 (art. 5-1) is therefore applicable to the case. B. Compatibility of the deprivation of liberty found established in the case with paragraph 1 of Article 5 (art. 5-1) 50. It remains to be determined whether the deprivation of liberty found to be established in the present case was compatible with paragraph 1 of Article 5 (art. 5-1). Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5 (art. 5), namely to protect the individual from arbitrariness (see, among many other authorities, the Kemmache v. France (no. 3) judgment of 24 November 1994, Series A no. 296-C, pp. 19-20, para. 42). In laying down that any deprivation of liberty must be effected "in accordance with a procedure prescribed by law", Article 5 para. 1 (art. 5-1) primarily requires any arrest or detention to have a legal basis in domestic law. However, these words do not merely refer back to domestic law; like the expressions "in accordance with the law" and "prescribed by law" in the second paragraphs of Articles 8 to 11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2), they also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. In order to ascertain whether a deprivation of liberty has complied with the principle of compatibility with domestic law, it therefore falls to the Court to assess not only the legislation in force in the field under consideration, but also the quality of the other legal rules applicable to the persons concerned. Quality in this sense implies that where a national law authorises deprivation of liberty - especially in respect of a foreign asylum-seeker - it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness. These characteristics are of fundamental importance with regard to asylum-seekers at airports, particularly in view of the need to reconcile the protection of fundamental rights with the requirements of States ’ immigration policies. 51. The applicants asserted that their detention had no legal basis, whether under the French legislation in force at the time or under international law. They had found themselves in a legal vacuum in which they had neither access to a lawyer nor information about exactly where they stood at the time. In support of the above argument, they rely on the reasons for the judgment of the Créteil tribunal de grande instance, ruling on their application for an order under the expedited procedure. 52. The Court notes that even though the applicants were not in France within the meaning of the Ordinance of 2 November 1945, holding them in the international zone of Paris- Orly Airport made them subject to French law. Despite its name, the international zone does not have extraterritorial status. In its decision of 25 February 1992 the Constitutional Council did not challenge the legislature ’ s right to lay down rules governing the holding of aliens in that zone. For example, the Law of 6 July 1992 (see paragraph 23 above) provides, inter alia, for the intervention of the ordinary courts to authorise holding for more than four days, the assistance of an interpreter and a doctor and the possibility of communicating with a lawyer. The Decree of 15 December 1992 (see paragraph 24 above) lays down the procedural rules applicable to proceedings brought in accordance with that Law. The Decree of 2 May 1995 (see paragraph 25 above) gives the delegate of the United Nations High Commissioner for Refugees or his representatives and humanitarian associations permanent access to the zone. However, these rules - which postdate the facts of the case - were not applicable at the time to the applicants. 53. The Court emphasises that from 9 to 29 March 1992 the applicants were in the situation of asylum-seekers whose application had not yet been considered. In that connection, neither the Decree of 27 May 1982 nor the - unpublished - circular of 26 June 1990 (the only text at the material time which specifically dealt with the practice of holding aliens in the transit zone) constituted a "law" of sufficient "quality" within the meaning of the Court ’ s case-law; there must be adequate legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 32, para. 67). In any event, the Decree of 27 May 1982 did not concern holding aliens in the international zone. The above-mentioned circular consisted, by its very nature, of instructions given by the Minister of the Interior to Prefects and Chief Constables concerning aliens refused leave to enter at the frontiers. It was intended to provide guidelines for immigration control at ports and airports. Moreover, the brief section it devoted to holding in the international zone and aliens ’ rights contains no guarantees comparable to those introduced by the Law of 6 July 1992. At the material time none of these texts allowed the ordinary courts to review the conditions under which aliens were held or, if necessary, to impose a limit on the administrative authorities as regards the length of time for which they were held. They did not provide for legal, humanitarian and social assistance, nor did they lay down procedures and time-limits for access to such assistance so that asylum-seekers like the applicants could take the necessary steps. 54. The French legal rules in force at the time, as applied in the present case, did not sufficiently guarantee the applicants ’ right to liberty. There has accordingly been a breach of Article 5 para. 1 (art. 5-1). III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50) 55. Under Article 50 of the Convention (art. 50), "If the Court finds that a decision or a measure taken by a legalauthority or any other authority of a High Contracting Party iscompletely or partially in conflict with the obligations arisingfrom the ... Convention, and if the internal law of the saidParty allows only partial reparation to be made for theconsequences of this decision or measure, the decision of theCourt shall, if necessary, afford just satisfaction to theinjured party." A. Damage 56. The applicants claimed to have suffered prejudice on account of their unlawful detention, which they assessed - on the basis of the French Court of Cassation ’ s case-law on this subject - at 80,000 French francs (FRF), that is FRF 1,000 each per day of detention. In addition to that sum they claimed damage resulting from the fact that it was impossible for them to gain access to the procedure for obtaining refugee status and from loss of the opportunity to have that status recognised, justifying the award of a lump sum of FRF 120 ,000. 57. The Government argued that the applicants ’ claims should be dismissed. 58. According to the Delegate of the Commission, only the first request should be granted by the Court, if it saw fit. As regards the second request, since the right to reside in the territory of a Contracting State, and more particularly the right to obtain political asylum there, was not guaranteed by the Convention, there could be no loss of opportunity. 59. Having regard to the particular circumstances of the case, the Court considers that the finding of a violation of Article 5 (art. 5) in itself constitutes sufficient just satisfaction. B. Costs and expenses 60. In respect of the costs and expenses incurred in the proceedings in the Créteil tribunal de grande instance and then before the Convention institutions, the applicants claimed the sum of FRF 57,000, not including value-added tax (VAT). 61. The Government did not comment; the Delegate of the Commission left this question to the Court ’ s discretion. 62. Having regard to its case-law on the question, and making its assessment on an equitable basis, the Court fixes the amount to be paid for costs and expenses, including VAT, at FRF 57,000, less the FRF 9,758 paid by the Council of Europe in legal aid. C. Default interest 63. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 6.65% per annum.
The European Court of Human Rights held that there had been a violation of Article