Information Note on the Court’s case-law 266
September 2022
H.F. and Others v. France [GC] - 24384/19
Judgment 14.9.2022 [GC]
Article 3 of Protocol No. 4
Article 3 para. 2 of Protocol No. 4
Enter own country
Lack of review with safeguards against arbitrariness for refusal to repatriate nationals held with their young children in Kurd-run camps after the fall of “Islamic State” they had joined: violation
Article 1
Jurisdiction of States
Refusal to repatriate nationals held in Kurd-run camps after the fall of “Islamic State”: outside jurisdiction as to alleged ill-treatment; within jurisdiction as to the right to enter own State
Facts – In 2014-15, the applicants’ daughters, L. and M., French nationals, left France for Syria with their partners, to join the so-called Islamic State (“ISIS”). They gave birth to children there. Since early 2019, they have reportedly been detained, with their young children, in camps and/or a prison in north-eastern Syria run by the Syrian Democratic Forces (the “SDF”), a local force engaged in the fight against ISIS dominated by the Kurdish militia. The applicants unsuccessfully sought urgent repatriation of their daughters and grandchildren. The domestic courts refused to entertain jurisdiction on the grounds that the requests concerned acts that could not be detached from the conduct by France of its international relations.
Law – Admissibility:
(a) Locus Standi– There were exceptional circumstances enabling the Court to conclude that the applicants had locus standi to raise the complaints as representatives of their daughters and grandchildren, the direct victims who were prevented from lodging applications with the Court.
(b) Jurisdiction – The Court had to ascertain whether it could be considered that on account, first, of the bond of nationality between the family members concerned and the respondent State and, second, the decision of the latter not to repatriate them, and therefore not to exercise its diplomatic or consular jurisdiction in respect of them, they were capable of falling within its jurisdiction for the purposes of Article 3 and Article 3 § 2 of Protocol No. 4. In this regard, the present case required the Court to address the possibility that the State’s obligation under Article 1 to recognise Convention rights may be “divided and tailored”.
The Court’s case-law had recognised a number of special features capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. The existence of such features had to be determined with reference to the particular facts of a case. In the present case, in order to determine whether the Convention and the Protocols thereto were applicable, the Court addressed three aspects finding as follows:
(i) Whether France exercised control over the relevant area – France neither exercised “effective control” over the territory of north-eastern Syria nor had any “authority” or “control” over the applicants’ family members who were being held in the camps in that region.
(ii) Whether a jurisdictional link was created by the opening of domestic proceedings – The criminal proceedings brought by the French authorities against L. and M. for participation in a terrorist association did not relate to the alleged violations and therefore had no bearing on whether the facts complained of fell within France’s jurisdiction. An interpretation to the contrary would dissuade States from opening investigations in this context. Further, in view of the substance of the complaints raised, the repatriation proceedings had no direct impact on the question whether those fell within France’s jurisdiction and thus could not suffice for an extraterritorial jurisdictional link to be triggered.
(iii) Whether there were connecting ties with the respondent State –
Article 3:
Neither the French nationality of the applicants’ family members, nor the mere decision of the French authorities not to repatriate them had the effect of bringing them within the scope of France’s jurisdiction as regards the ill-treatment to which they were subjected in Syrian camps under Kurdish control. Such an extension of the Convention’s scope found no support in the case-law. First, the mere fact that decisions taken at national level have had an impact on the situation of persons residing abroad is not such as to establish the jurisdiction of the State concerned over them outside its territory. Secondly, neither domestic nor international law required the State to act on behalf of its nationals and to repatriate them. Moreover, the Convention did not guarantee the right to diplomatic or consular protection. Thirdly, and in spite of the stated desire of local non-State authorities that the States concerned should repatriate their nationals, France would have to negotiate with them as to the principle and conditions of any such operation and to organise its implementation, which would inevitably take place in Syria.
Conclusion: inadmissible (outside jurisdiction).
Article 3 of Protocol No. 4:
This was the first time that the Court had been called upon to decide on the existence of a jurisdictional link between a State and its “nationals” in respect of a complaint under this provision. The fact that the latter applied only to nationals could not be regarded as a sufficient circumstance for the purpose of establishing France’s jurisdiction within the meaning of Article 1. Nationality, albeit a factor ordinarily taken into account as a basis for the extraterritorial exercise of jurisdiction by a State, could not constitute an autonomous basis of jurisdiction. In the present case, the protection by France of the applicants’ family members would require negotiation with the Kurdish authorities which were holding them, or even an intervention on Kurdish-administered territory.
The refusal to grant the applicants’ request had not formally deprived their family members of the right to enter France, nor had it prevented them from doing so. Nevertheless, the question arose as to whether their cross-border situation might have consequences for France’s jurisdiction ratione loci and ratione personae. In this connection, both the subject matter and scope of the right guaranteed by Article 3 § 2 of Protocol No. 4 implied that it should benefit a State Party’s nationals who were outside its jurisdiction. The Court also emphasised that the interpretation of the provisions of Article 3 of Protocol No. 4, had to consider the context of the contemporary phenomena of increasing globalisation and international mobility, which presented States with new challenges in terms of security and defence in the fields of diplomatic and consular protection, international humanitarian law and international cooperation. The right to enter a State lay at the heart of current issues related to the combat against terrorism and to national security. If Article 3 § 2 of Protocol No. 4 were to apply only to nationals who arrived at the national border or who had no travel documents it would be deprived of effectiveness in the contemporary context.
It could not be excluded therefore that certain circumstances relating to the situation of individuals who wished to enter the State of which they were nationals, relying on the rights they derived from Article 3 § 2 of Protocol No. 4, might give rise to a jurisdictional link with that State for the purposes of Article 1. However, it was not necessary to define those circumstances in abstracto since they would necessarily depend on the specific features of each case and might vary considerably from one case to another.
In the present case, in addition to the legal link between the State and its nationals, there were a number of special features which related to the situation of the camps in north-eastern Syria and enabled France’s jurisdiction, within the meaning of Article 1, to be established in respect of the complaint raised under Article 3 § 2 of Protocol No. 4: the applicants had made official repatriation and assistance requests; those requests had had been made on the basis of the fundamental values of the democratic societies, while their family members had been facing a real and immediate threat to their lives and physical well-being, on account both of the living conditions and safety concerns in the camps, which were incompatible with respect for human dignity, and of the health of those family members and the extreme vulnerability of the children, in particular, in view of their young age; it had been materially impossible for them to leave the camps, or any other place where they might be held incommunicado, in order to reach the French or any other State border without the assistance of the French authorities; and the Kurdish authorities had indicated their willingness to hand over French female detainees and their children to the national authorities.
Conclusion: admissible (within jurisdiction).
Merits:
(a) Interpretation of Article 3 § 2 of Protocol No. 4 – The Court took the opportunity to clarify the meaning and examine the scope of this provision, including with regard to the procedural rights of those concerned and/or any corresponding procedural obligations of the State in the context of a refusal to repatriate.
The application of Article 3 § 2 of Protocol No. 4 did not exclude situations where the national had either voluntarily left the national territory and was then denied the right to re-enter, or where the person had never even set foot in the country concerned, as in the case of children born abroad who wished to enter for the first time. Indeed, there was no support for such a limitation in its wording or the preparatory work.
Article 3 § 1 of Protocol No. 4 prohibited only the expulsion of nationals and not their extradition. The right to enter a State of which one was a national must not therefore be confused with the right to remain on its territory and it did not confer an absolute right to remain there. The right to enter the territory of which one was a national under Article 3 § 2 of Protocol No. 4 was absolute as was the freedom from expulsion of a national under its first paragraph. However, the right to enter national territory could not be used to negate the effects of an extradition order. Moreover, as Article 3 § 2 recognised this right without defining it, admittedly there might be room for implied limitations, where appropriate, in the form of exceptional measures that were merely temporary (for example, the situation envisaged in the context of the global health crisis caused by the Covid-19 pandemic).
Taken literally, the scope of Article 3 § 2 of Protocol No. 4 corresponded to a negative obligation of the State and was limited to purely formal measures prohibiting citizens from returning to national territory. However, it could not be ruled out that informal or indirect measures which de facto deprived the national of the effective enjoyment of his or her right to return might, depending on the circumstances, be incompatible with this provision.
Certain positive obligations inherent in Article 3 § 2 of Protocol No. 4 had long been imposed on States for the purpose of effectively guaranteeing entry to national territory. These corresponded to measures which stemmed traditionally from the State’s obligation to issue travel documents to nationals, to ensure that they could cross the border. As regards the implementation of the right to enter, as in other contexts, the scope of any positive obligations would inevitably vary, depending on the diverse situations in the Contracting States and the choices to be made in terms of priorities and resources. Those obligations must not be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities. Where the State was required to take positive measures, the choice of means was in principle a matter that fell within its margin of appreciation.
(b) Whether there was a right to repatriation (notably for those unable to reach State border as a result of material situation) – The Convention did not guarantee a right to diplomatic protection by a Contracting State for the benefit of any person within its jurisdiction. The States themselves remained the protagonists of consular assistance as governed by the relevant Vienna Convention. Pursuant to this, individuals such as the applicants’ family members, who were being held in camps under the control of a non-State armed group and whose State of nationality had no consular presence in Syria, were not in principle entitled to claim a right to consular assistance. The fact that the SDF had called upon the States concerned to repatriate their nationals and had shown cooperation in connection with a number of repatriations, which have been carried out in particular by France, albeit relevant, did not provide a basis for a right to repatriation to be conferred upon the applicants’ family members. Nor could such a basis be found in current international law on diplomatic protection. Lastly, there was no consensus at European level in support of a general right to repatriation for the purposes of entering national territory within the meaning of Article 3 § 2 of Protocol No. 4. In sum, there was no obligation under international law for States to repatriate their nationals. Consequently, French citizens being held in the camps in north-eastern Syria could not claim a general right to repatriation on the basis of the right to enter national territory.
(c) Other obligations stemming from Article 3 § 2 of Protocol No. 4 in the context of the present case – As could be seen from the preparatory work on Protocol No. 4, the object of the right to enter the territory of a State of which one was a national was to prohibit the exile of nationals. Seen from this perspective, Article 3 § 2 of Protocol No. 4 might impose a positive obligation on the State where, in view of the specificities of a given case, a refusal by that State to take any action would leave the national concerned in a situation comparable, de facto, to that of exile. However, any such requirement under that provision must be interpreted narrowly and would be binding on States only in exceptional circumstances, for example where extraterritorial factors directly threatened the life and physical well-being of a child in a situation of extreme vulnerability. In addition, when examining whether a State had failed to fulfil its positive obligation to guarantee the effective exercise of the right to enter its territory, under Article 3 § 2 of Protocol No. 4, where such exceptional circumstances existed, the requisite review would be confined to ensuring effective protection against arbitrariness in the State’s discharge of its positive obligation under that provision. The inability for anyone to exercise his or her right to enter national territory must be assessed also in the light of the State’s return policy and its consequences. The Court therefore had to ascertain whether the situation of the applicants’ family members was such that there were exceptional circumstances in the present case (i) and, if so, proceed to address the question whether the decision-making process had been surrounded by appropriate safeguards against arbitrariness (ii).
(i) Whether there were exceptional circumstances –
The Court replied in the affirmative, having regard to the extraterritorial factors which had contributed to the existence of a risk to the life and physical well-being of the applicants’ family members, in particular their grandchildren, as well as to the following points:
– The situation in the impugned camps under the control of a non-State armed group was distinguishable from classic cases of diplomatic or consular protection and criminal-law cooperation mechanisms; it verged on a legal vacuum. The only protection afforded to the applicants’ family members was under common Article 3 of the four Geneva Conventions and under customary international humanitarian law.
– The general conditions in the camps were incompatible with applicable standards under international humanitarian law. Pursuant to common Article 1 of the four Geneva Conventions, all States parties to the instruments in question – including France – were obliged to ensure that the Kurdish local authorities who were directly responsible for the living conditions in the camps, complied with their obligations under common Article 3, by doing everything “reasonably within their power” to put an end to violations of international humanitarian law.
- On the one hand, to date no tribunal or other international investigative body had been established to deal with the female detainees in the camps and the creation of an ad hoc international criminal tribunal had been left in abeyance. There was also no prospect of these women being tried in north-eastern Syria. On the other hand, the criminal proceedings initiated against L. and M. in France were in part related to that State’s international obligations and duty to investigate and, where appropriate, prosecute individuals involved in terrorism abroad.
- The Kurdish authorities had repeatedly called on States to repatriate their nationals, citing their inability to ensure proper living conditions, organisation of detention and trial, and the security risks. They had also demonstrated, in practice, their cooperation in this regard, including with France.
- A number of international and regional organisations had called upon European States to repatriate their nationals being held in the camps and the United Nations Committee on the Rights of the Child had, for its part, stated that France must assume responsibility for the protection of the French children there and that its refusal to repatriate them entailed a breach of the right to life and the prohibition of inhuman or degrading treatment. Lastly, France had officially stated that French minors in Iraq or Syria were entitled to its protection and could be repatriated.
(ii) Safeguards against arbitrariness –
The Court was acutely conscious of the very real difficulties faced by States in the protection of their populations against terrorist violence and the serious concerns triggered by attacks in recent years. Notwithstanding, the examination of an individual request for repatriation, in exceptional circumstances such as those set out above, fell in principle within the category of operational aspects of the authorities’ actions that had a direct bearing on respect for the protected rights in contrast to political choices made in the course of fighting terrorism that remained outside of the Court’s supervision).
The applicants’ family members had been in a situation of a humanitarian emergency, which had required an individual examination of their requests. It had been incumbent upon the French authorities to surround the decision-making process, concerning those requests, by appropriate safeguards against arbitrariness. The concepts of lawfulness and the rule of law required that measures affecting fundamental rights had to be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information where national security was at stake.
In the present case, it had to be possible for the rejection of a request for repatriation, in the context at issue, to give rise to an appropriate individual examination, by an independent body, separate from the executive authorities of the State, but not necessarily by a judicial authority. This examination had to ensure an assessment of the factual and other evidence which had led those authorities to decide that it was not appropriate to grant the request. The independent body in question must therefore be able to review the lawfulness of the decision denying the request, whether the competent authority refused to grant it or had been unsuccessful in any steps it had taken to act upon it. Such review should also enable the applicant to be made aware, even summarily, of the grounds for the decision and thus to verify that those grounds had a sufficient and reasonable factual basis. Where, as in the present case, the request for repatriation was made on behalf of minors, the review should ensure in particular that the competent authorities had taken due account, while having regard for the principle of equality applying to the exercise of the right to enter national territory, of the children’s best interests, together with their particular vulnerability and specific needs. In sum, there must be a review mechanism through which it could be ascertained that there was no arbitrariness in any of the grounds that might legitimately be relied upon by the executive authorities, whether derived from compelling public interest considerations or from any legal, diplomatic or material difficulties.
In the Court’s view, the safeguards afforded to the applicants had not been appropriate.
The applicants had not received any explanation for the choice underlying the decision taken by the executive in respect of their requests, except for the implicit suggestion that it stemmed from the implementation of the policy pursued by France, albeit that a number of minors had previously been repatriated. There was no evidence that the refusals could not have been dealt with in specific individual decisions or have been reasoned according to considerations tailored to the facts of the case, if necessary complying with a requirement of secrecy in defence matters. Nor had the applicants obtained any information which might have contributed to the transparency of the decision-making process. In view of the domestic courts’ decisions referring to the lack of jurisdiction, the applicants had had no access to a form of independent review of the tacit decisions to refuse their repatriation requests.
In the absence of any formal decision on the part of the competent authorities to refuse to grant the applicants’ requests, the jurisdictional immunity raised against them by the domestic courts, in relation to their claims relying on respect for the right guaranteed by Article 3 § 2 of Protocol No. 4 and the positive obligations imposed on the State by that provision, had deprived them of any possibility of meaningfully challenging the grounds relied upon by those authorities and of verifying that those grounds were legitimate, reasonable and not arbitrary. The possibility of such a review would not necessarily mean that the court in question would then have jurisdiction to order, if appropriate, the requested repatriation.
Conclusion: violation (fourteen votes to three)
Article 41: The finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
Article 46: The Government had to re-examine the repatriation requests, in a prompt manner, while ensuring that appropriate safeguards were afforded against any arbitrariness.
(See also M.N. and Others v. Belgium (dec.) [GC], 3599/18, 5 May 2020, Legal Summary ; Georgia v. Russia (II) [GC], 38263/08, 21 January 2021, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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