Information Note on the Court’s case-law No. 158
December 2012
De Souza Ribeiro v. France [GC] - 22689/07
Judgment 13.12.2012 [GC]
Article 13
Effective remedy
Enforcement of deportation order within fifty minutes after court application for stay of execution was lodged: violation
Facts – The applicant, a Brazilian national, lived in French Guiana with his family from 1988, when he was seven years old, until January 2007. On 25 January 2007 he was stopped at a road check. Unable to show proof that his presence on French soil was legal, he was arrested and served with administrative orders for his removal and detention pending removal. At 3.11 p.m. the next day he applied to an administrative court for judicial review of the removal order. He made an urgent request for a stay of execution suspension of the removal order and expressed serious doubts as to its validity. At 4 p.m., barely fifty minutes after lodging his application with the administrative court, the applicant was removed to Brazil. That evening the administrative court declared his application for judicial review devoid of purpose as he had already been deported. In February 2007 the applicant lodged an urgent application for protection of a fundamental freedom (requête en référé liberté) with the administrative court, which was dismissed. In August 2007 he returned to French Guiana illegally. On 18 October 2007 the administrative court examined the applicant’s application of 25 January 2007 for judicial review of the initial removal order, which it declared illegal and set aside. In June 2009 the applicant was issued with a “visitor’s” residence permit, which was renewed until June 2012. He now has a renewable residence permit for “private and family life”.
In a judgment of 30 June 2011, a Chamber of the Court unanimously declared the complaint under Article 8 inadmissible for lack of victim status on the grounds that the administrative court had acknowledged the unlawfulness of the measure on the basis of which the applicant had been deported to Brazil and the applicant had subsequently been able to return to France and obtain a renewable residence permit. As to the complaint that the appeal against the deportation order did not have suspensive effect, the Court held by four votes to three that, having regard to the States’ margin of appreciation in this sphere, there had been no violation of Article 13 taken in conjunction with Article 8 as the consequences of interference with the rights secured under Article 8 were in principle reversible, as the applicant’s case showed, since the family ties had not been severed for any length of time as he had been able to return to France a short time after his deportation.
Law – Article 13 in conjunction with Article 8 : The Court noted, firstly, that the applicant had made use of the remedies available to him under the system in force in French Guiana prior to his removal. However, the prefect had effected only a cursory examination of his situation. The applicant had been removed from the territory less than thirty-six hours after his arrest pursuant to a administrative removal order that was succinct and stereotyped and was served on the applicant immediately after his arrest.
Furthermore, regardless of the reason for the applicant’s illegal situation at the time of his arrest, he was protected under French law against any form of expulsion. That was the conclusion reached by the administrative court, which had proceeded to declare the removal order illegal. Thus, by 26 January 2007 the French authorities were in possession of evidence that the applicant’s removal was not in accordance with the law and might therefore constitute an unlawful interference with his rights. Accordingly, at the time of his removal to Brazil a serious question arose as to the compatibility of his removal with Article 8 of the Convention and he therefore had an “arguable” complaint in that regard for the purposes of Article 13.
The applicant had been able to apply to the administrative court. That court fulfilled the requirements of independence, impartiality and competence to examine the applicant’s complaints, which complaints contained clearly explained legal reasoning. However, the brevity of the period between the applicant’s application to the administrative court and his removal had excluded any possibility that the court had seriously examined the circumstances and legal arguments for and against finding a violation of Article 8 in the event of the removal order being enforced. It followed that no judicial examination had been made of the merits or of the applicant’s urgent application for interim measures. While the urgent proceedings could in theory have enabled the administrative court to examine the applicant’s arguments and, if necessary, to stay execution of the removal order, any possibility of that actually happening had been extinguished because of the excessively short time between his application to the court and his removal. In fact, the urgent-applications judge had been powerless to do anything but declare the application devoid of purpose. The applicant had thus been deported solely on the basis of the prefect’s order. Consequently, the haste with which the removal order was executed had had the effect of rendering the available remedies ineffective in practice and therefore inaccessible and the applicant had had no chance of having the lawfulness of the removal order examined sufficiently thoroughly by a national authority offering the requisite procedural guarantees.
Neither French Guiana’s geographical location and the strong pressure of immigration there, nor the danger of overloading the courts and adversely affecting the proper administration of justice, justified the exception to the ordinary legislation or the manner in which it was applied. The discretion the States were afforded regarding the manner in which they conformed to their obligations under Article 13 could not be exercised in a way that deprived applicants of the minimum procedural safeguards against arbitrary expulsion.
In the light of all the foregoing, the applicant had not had access in practice to effective remedies in respect of his complaint under Article 8 of the Convention when he was about to be deported. That situation had not been remedied by the eventual issue of a residence permit. The Court therefore dismissed the Government’s preliminary objection concerning the applicant’s loss of “victim” status within the meaning of Article 34 of the Convention, and found a violation of Article 13 in conjunction with Article 8.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
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This summary by the Registry does not bind the Court.
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