CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 avril 2007

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margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s6B2778B0 { width:46.28pt; display:inline-block } .s46F7FE7A { width:195.3pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }         SECOND SECTION             CASE OF GEBREMEDHIN [GABERAMADHIEN] v. FRANCE     (Application no. 25389/05)         JUDGMENT       STRASBOURG   26 April 2007   FINAL   26/07/2007     In the case of Gebremedhin [Gaberamadhien] v. France, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   András Baka, President ,   Jean-Paul Costa,   Ireneu Cabral Barreto,   Antonella Mularoni,   Elisabet Fura-Sandström,   Danutė Jočienė,   Dragoljub Popović, judges , and Sally Dollé, Section Registar , Having deliberated in private on 16 January and 27 March 2007, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 25389/05) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Eritrean national, Mr Asebeha Gebremedhin [Gaberamadhien] (“the applicant”), on 14 July 2005. The applicant stated that the spelling “Gaberamadhien”, which appeared in some internal documents, corresponded to the phonetic transcription of his name by the French airport and border police. The Eritrean statements and documents written in the Roman alphabet, meanwhile, retained the spelling “Gebremedhin”. The applicant added that, like very many Eritrean journalists, he used a “professional pseudonym”, namely “Yayneabeba” (“flower of my eye”). 2.     The applicant, who had been granted legal aid, was represented by Mr   J.-E. Malabre, a lawyer practising in Limoges. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. 3.     The President of the Chamber to which the case was originally assigned, and subsequently the Chamber, decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Eritrea. 4.     By a decision of 10 October 2006, the Chamber declared the application partly admissible. 5.     The applicant and the Government each filed further observations (Rule 59 § 1). In addition, third-party comments were received from the National Association for Assisting Aliens at Borders, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties replied to those comments (Rule 44 § 5). 6.     A hearing took place in public in the Human Rights Building, Strasbourg, on 16 January 2007 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mrs   E. Belliard, Director of Legal Affairs, Ministry of   Foreign Affairs,   Agent , Ms   A.-F. Tissier , Head of the Human Rights Section,   Legal Affairs Department, Ministry of Foreign Affairs, Ms   M. Ziss , Drafting Secretary, Human Rights Section,   Legal Affairs Department, Ministry of Foreign Affairs, Mr   Mouton , Deputy Head, Legal and International Affairs   Division, OFPRA, Ms   F. Doublet , Head of the European, International and   Constitutional Law Bureau, Legal Advice and Litigation   Section, Department of Civil Liberties and Legal Affairs,   Ministry of the Interior, Mr   J.-M. Ribes , Central Office of the Airport and Border Police,   Ministry of the Interior, Mr   M. Caussard , Litigation Section, Conseil d’Etat ,   Counsel , (b)     for the applicant Mr   J.-E. Malabre , lawyer,   Counsel .   The applicant was also present. The Court heard addresses by Mr   Malabre and Mrs Belliard and their replies to judges’ questions. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1979. He is currently in accommodation in Paris provided by a non-governmental organisation. 8.     In 1998, like many other persons, the applicant and his family were displaced from Ethiopia to Eritrea. In Eritrea, the applicant worked as a reporter and photographer, chiefly for the independent newspaper Keste Debena , whose editor-in-chief at the time was Mr Milkias Mihretab. The applicant stated that the latter was well known as a champion of the free press in Eritrea and that his case had been dealt with in Amnesty International’s 2002 report, which referred in particular to the fact that he had been arrested and arbitrarily detained in that country on more than one occasion on account of his work as a journalist. The applicant added that on 27 June 2002 the British Section of Amnesty International had awarded Mr   Mihretab its “Special Award for Human Rights Journalism under Threat”. The applicant and Mr Mihretab were arrested in 2000, apparently on account of their professional activities. They were held in Zara Prison for eight months and six months respectively. In that connection the applicant stated that he had been referred to – under the name of “Yebio”, a diminutive form of his pseudonym “Yayneabeba” – on a website dedicated to reform in Eritrea (www.awate.com) as one of the six journalists arrested on 14 October 2000 at the same time as Milkias Mihretab. 9.     Unlike Mr Mihretab, who fled to Sudan in September 2001, the applicant remained in Eritrea, in Asmara, in order to take care of his widowed mother and his four brothers and sisters. Some time after Mr   Mihretab’s departure – on an unspecified date – the police questioned the applicant about him. Police officers searched his home and found photographs which they considered to be compromising. The applicant was arrested and was subjected to ill-treatment, signs of which allegedly persist in the form of cigarette burns and injuries to his back caused by the position in which he was held for about twenty days, lying face down with his feet and hands tied above his back. He was subsequently imprisoned for six months before falling ill and being transferred to hospital, from where he escaped by paying the guards, with the help of relatives of his maternal grandmother who worked there. He then hid in his grandmother’s home in Areza, where he was treated by a doctor. As soon as he had recovered he fled to Sudan where one of his uncles lived. When an Eritrean was shot dead in Sudan he decided to leave the country, as the Eritrean community there believed the killing had been carried out by Eritrean government agents in pursuit of opponents of the government. 10.     The applicant stated that he had travelled to South Africa and, with the help of a smuggler and using a Sudanese passport (in the name of “Mohammed Eider” or similar), which had been kept by the smuggler, had arrived in Paris-Charles de Gaulle Airport in Roissy at around 5.30 a.m. on 29 June 2005 on a flight from Johannesburg. He submitted that he had been held in the airport’s international zone until 1 July 2005 and had thus been unable to apply for leave to enter the country. Eight hours after his arrival he reported to the police station, saying that he was Eritrean and wished to apply for asylum. The police officer asked him to “prove where [he] had come from, claiming that [he] was not Eritrean but Pakistani, and for the first time refused [him] permission to leave the international zone”. According to the applicant, over a period of two days (between 29 June and 1   July), he went regularly to the police station – at each change of shift, or approximately eight times – in the vain hope of finding a police officer who would deal with his application. He said that “it was not until 1 July that a new police officer whom [he] had not seen previously finally registered [his] application”. The Government contested this version of the facts. They said that they had checked the passenger lists for flights from South Africa which landed at Roissy Airport on 29 and 30 June and 1 July 2005 and that there had been no mention of anyone by the name of Gebremedhin, Gaberamadhien or Eider. They referred to the report by Roissy airport and border police dated 1   July 2005, which stated that the applicant had been questioned at 11 a.m. that day. 11.     On 1 July 2005 the applicant applied for leave to enter France as an asylum-seeker. He was questioned at 11 a.m. by a senior police officer ( officier de police judiciaire ) assisted by an English-speaking interpreter. The record of the interview simply states that “the interviewee did not provide any evidence in support of his statements”. The decision to hold the applicant in the waiting zone was taken by the administrative authority on that date and time, for an initial period of forty-eight hours, which was subsequently extended (see paragraph 18 below). 12.     The applicant said that he had been interviewed for the first time on 3   July 2005 by an official from the French Agency for the Protection of Refugees and Stateless Persons (OFPRA), who had recommended that the applicant be granted leave to enter the country as an asylum-seeker. The Government, for their part, contended that no recommendation had been issued on 3 July. The record of the interview and the proposed recommendation, both drafted by the official concerned, had been considered unsatisfactory by the official’s immediate superior, who was responsible for approving them. For that reason the applicant had been interviewed a second time, on 5 July 2005, by the latter official (assisted by an interpreter). The official concerned issued the following recommendation that the applicant be refused leave to enter: “ Statement taken in Amharic through an ISM interpreter Reason for the application? My parents are of Eritrean origin. We had Ethiopian nationality and lived in Addis Ababa. In 1998 the Ethiopian authorities told us we were not Ethiopians. We were expelled from Ethiopia to Eritrea. I was supposed to sit my school-leaving exams that year, but was unable to sit them in Eritrea. I worked in a garage for six months, and then did my national service. While I was there I met a guy who was a journalist. When I’d finished my service I worked with this journalist friend as a cameraman and photographer, and we travelled together on reporting assignments. My friend was having problems with the authorities and wanted to leave the country. As soon as I got back the authorities questioned me about my friend and put me in prison. While I was in prison the police searched my house and found two photos which they considered compromising. Then they started torturing me with cigarettes. I stayed in prison for six months until I fell ill with tuberculosis. They took me to hospital. By chance, it was the hospital where some of my maternal grandmother’s relatives worked. They bribed the guards, brought me clothes and helped me to escape. I went to my grandmother’s place in Areza and stayed there for four months while I was being treated. Then I left the country secretly for Sudan. I found work straight away in a garage in Khartoum, but there were Eritrean agents around, and an Eritrean who worked not far away was killed. I was afraid and went to Port Sudan, where I worked as a porter on the quays. I stayed in Sudan for about two years in all (eight months in Khartoum, a year in Port Sudan and another two months in Khartoum). My uncle sold his car to pay for my trip. I travelled to South Africa before coming to France. My uncle found the network of people smugglers. I don’t know how they organised things. What is your friend called and how did you meet him? His name is Milkias Mihretab, he’s a friend of the family, he knew my parents in Addis Ababa. When we moved back to Asmara, I spent eighteen months doing my national service. After that I was in the reserves and worked in an army garage but didn’t wear a uniform. That was when my friend arranged for me to go and work for him, by acting as a guarantor for me. Can you give some examples of events you covered? We covered the student strikes in Asmara in 2002 (no further details given). What were the two “compromising” photos found at your home? I don’t know, I can’t remember. What newspaper did your friend Milkias Mihretab work for? Keste Debena (Rainbow). What was his job? Editor-in-chief. Do you know what kind of problems your friend had with the authorities? There were two main reasons. Firstly, my friend was in favour of a Constitution and, secondly, thirteen ministers were imprisoned and my friend had published their biographies. They were put in prison just after the students’ strike in 2002. When did your friend leave the country? It was in April 2002, when all the journalists were arrested. Have other journalists been arrested? All the Eritrean journalists are in prison. Do you know other journalists from Keste Debena who were arrested? (No reply). Other photographers? (No reply). Can you give more details about your arrest (date, circumstances, place of detention)? I was arrested in October or November 2002. They took me to Maytamanay Prison, where I spent six months. Were you not arrested “as soon as you got back” to Asmara? No, I continued working here and there for six months. What has become of your family? My father became ill and died before the family was expelled. My mother and my two brothers and two sisters live in Asmara. My brothers and sisters are studying. What are you afraid of if you go back? When I was arrested, the main thing they wanted to know was what network my friend had used to leave the country. I think they’re still trying to get that information. Is this your real name? Yes, I don’t have any other name, I never have had. Have you anything to add? No. Reasoned recommendation Mr Asebeha Gaberamadhien, an Eritrean national, has stated that he worked as a photographer with a family friend who is a journalist. According to Mr   Gaberamadhien, in April 2002, while they were on a reporting assignment on the Sudanese border, the journalist took the opportunity to leave Eritrea. On his return to Asmara, Mr Gaberamadhien continued to work for six months before being arrested by the Eritrean authorities. He was placed in detention for six months and was regularly questioned about the circumstances surrounding the departure of his friend and colleague. After contracting a serious illness he was transferred to hospital, from where he managed to escape with the help of family members working there. He then stayed with his grandmother for four months before leaving Eritrea for Sudan, where he lived and worked for about two years. However, Mr Gaberamadhien’s account contains a large number of inaccuracies and erroneous references which cast doubt on the truth of his statements. While the episode in which several journalists were arrested in Asmara is very well known and received widespread media coverage, Mr Gaberamadhien’s account bears no relation to what actually happened. The Eritrean journalists were arrested in September 2001, not in April 2002, and the applicant displays no knowledge of the reasons leading to the closing-down of the newspapers and the arrest of the journalists. The editor-in-chief of the newspaper Keste Debena also left Eritrea in September 2001 (it therefore seems impossible that he could have covered the student strikes in 2002). The circumstances of his departure, accompanied by another reporter from the same newspaper, do not tally either with Mr Gaberamadhien’s statements. It seems surprising to say the least that, apart from the editor-in-chief of Keste Debena , he is unable to name any other journalist or photographer arrested by the Eritrean government of the day, or to name any other newspaper that was banned. Likewise, it is extremely surprising that Mr Gaberamadhien is only able to cite – in a very sketchy and imprecise way – one event which he covered as a photographer. His lack of knowledge is such that it raises serious doubts as to whether he was actually engaged in this activity. Given the widespread media coverage of the events at the time, it seems strange that Mr Gaberamadhien’s name does not appear anywhere, either as a member of staff of Keste Debena or as one of the persons arrested. All these factors taken together suggest that Mr Gaberamadhien is attempting to falsify his past. The French Agency for the Protection of Refugees and Stateless Persons takes the view that the application for leave to enter France as an asylum-seeker made by Mr   Asebeha Gaberamadhien should be considered as manifestly unfounded, and therefore issues a RECOMMENDATION TO REFUSE LEAVE TO ENTER ” 13.     On 6 July 2005 the Ministry of the Interior held that the applicant’s application for leave to enter French territory as an asylum-seeker was “manifestly unfounded”. It therefore rejected the application and decided to remove him “to Eritrea, or if need be to any country where he may be legally admissible” (the applicant claimed that 93% of the applications made at the airport were rejected in this way). The decision read as follows: “... Having regard to the Geneva Convention of 28 July 1951 relating to the Status of Refugees; Having regard to the Immigration and Asylum Code, and in particular Articles   L.   221-1 and L. 213-4 thereof; Having regard to Decree no. 82-442 of 27 May 1982 as amended implementing section 5 of the Ordinance of 2 November 1945, as amended in respect of leave to enter French territory, and in particular Article 12 thereof; Having regard to the application for leave to enter France as an asylum-seeker made at Roissy Airport on 1 July 2005 by X, purporting to be Mr Asebaha or Asebeha Gaberamadhien, born on 15 March 1979 and of Eritrean nationality; Having regard to the report drawn up by the border police on 1 July 2005; Having consulted the French Agency for the Protection of Refugees and Stateless Persons on 5 July 2005; X, who purports to be Mr Asebaha or Asebeha Gaberamadhien, an Eritrean national, has stated that during his national service he met a journalist, editor-in-chief of the newspaper Keste Debena (Rainbow), for whom he worked as a cameraman and photographer after completing his service. The latter had had problems with the authorities because of his support for a Constitution and because he had published biographies of thirteen ministers imprisoned after the student strikes in 2002. His journalist friend left the country in April 2002 after they had carried out a reporting assignment on the Sudanese border. He himself returned to Asmara and continued working. After six months, in October or November 2002, the authorities questioned him on the circumstances in which his friend and colleague had left the country. The police found two compromising photographs at his home and he was later subjected to ill ‑ treatment. He was imprisoned for six months and, after falling ill, was transferred to the hospital where relatives of his grandmother worked. He escaped from the hospital by bribing the guards and went to Areza, staying there for four months before travelling to Sudan, where he lived and worked for two years. However, X’s statements contain numerous inconsistencies which detract from their credibility. His account does not tally with the actual events to which he refers, namely the arrest of several journalists in Asmara, which was very well known and received widespread media coverage. The Eritrean journalists were arrested in September 2001, not in April 2002, and X displays no knowledge of the reasons leading to the closing-down of the newspapers and the arrest of the journalists. Moreover, the editor-in-chief of the newspaper Keste Debena left Eritrea in September 2001 and could not therefore have covered the student strikes in 2002 as X claims. The circumstances of the editor’s departure, together with another reporter from the same newspaper, do not tally either with X’s statements. In addition, there is no proof of his professional activity: it is very surprising that he is unable to name any other newspaper that was banned or any other journalist or photographer arrested by the Eritrean government of the day. It is also astonishing that X is able to cite only one event which he covered as a photographer, and in a very sketchy and imprecise way. Finally, his name does not appear anywhere, either as a member of staff of Keste Debena or as one of the persons arrested, despite the widespread media coverage of the events at the time. All these factors taken together cast doubt on the sincerity of his application and whether it is well founded. Consequently, the application for leave to enter France for the purposes of asylum made by X ..., purporting to be Mr Asebaha or Asebeha Gaberamadhien, is to be considered manifestly unfounded. Under Article L. 213-4 of the Immigration and Asylum Code, directions are to be given for his removal to Eritrea, or if need be to any country where he may be legally admissible ...” 14.     On 7 July 2005 the applicant made an urgent application to the Cergy-Pontoise Administrative Court under Article L. 521-2 of the Administrative Courts Code, seeking an order requiring the Minister of the Interior to grant him leave to enter France in order to lodge an application for asylum. He argued that the refusal to grant him leave to enter amounted to a serious and manifestly unlawful breach of the right of asylum – a fundamental freedom whose corollary was the right to apply for refugee status, entailing the right to temporary residence in the country – and of the right to life and the right not to be subjected to inhuman or degrading treatment within the meaning of Article 3 of the Convention. In that regard the applicant maintained, in particular, that the Ministry had not only exceeded the scope of its powers in examining the substance of his asylum application, but had also committed an error of assessment in finding the application manifestly unfounded. He stressed in particular that, as a cameraman and photographer working for a journalist, he had been subjected to persecution in his country of origin, where he had been imprisoned twice and subjected to ill-treatment, before seeking refuge in Sudan, from where he had fled as his life had been in danger. The applicant submitted to the urgent-applications judge the following statement, drawn up the same day by the non-governmental organisation Reporters without Borders ( Reporters sans frontières ): “... Reporters without Borders, an international organisation dedicated to defending freedom of the press, wishes to draw your attention to the case of Asebaha Gaberamadhien, a journalist and Eritrean national. Thanks to the efforts of our permanent correspondents, we are in a position to confirm that Mr Gaberamadhien worked as a cameraman and journalist. We have contacted the Eritrean journalist Yohannes Milkias Mihretab, now in exile in the United States, who confirmed that he worked with Mr Gaberamadhien. He also confirmed that the two men were held at the same time in Zara Prison, one of the harshest prisons in the country, in very difficult conditions. While mindful of the deadlines which must be met in examining this case and carrying out the necessary checks, I would nevertheless stress that Reporters without Borders supports Mr Gaberamadhien’s application for political asylum. We would welcome the opportunity to meet with him in order to study the case more closely and furnish all the evidence required for the purposes of his application. We would be greatly obliged if you would grant him leave to enter France ...” In addition, the applicant produced two e-mails in English sent by Mr   Mihretab to Reporters without Borders on 7 July 2005 (Mr Mihretab sent a third, similar, e-mail to the applicant’s counsel on 11 July 2005). In the two e-mails, Mr Mihretab confirmed that he had known Asebeha Gebremedhin for a long time. Having been shown a photograph of the applicant, he stated that it was indeed Mr Gebremedhin, a journalist and dissident activist who had worked as a freelance photographer for the newspaper Keste Debena , and that they had been detained together for several months in Zara Prison. Mr Mihretab added that the applicant had suffered a great deal and had undergone numerous ordeals on account of his involvement in campaigning for democratic change and his work with the independent press. In view of the current situation in Eritrea and the fact that the applicant, who had been held in Zara Prison, was known to the authorities, he would undoubtedly be arrested in that country. His life would be in danger and he would run the risk at the very least of being tortured and of “disappearing” like very many journalists, dissidents and other activists. 15.     On 8 July 2005 the urgent-applications judge of the Cergy-Pontoise Administrative Court issued an order rejecting the applicant’s application, without holding a hearing. The order read as follows: “... Article L. 521-2 of the Administrative Courts Code states as follows: ‘Where such an application is submitted to him or her as an urgent matter, the urgent-applications judge may order whatever measures are necessary to protect a fundamental freedom which has been breached in a serious and manifestly unlawful manner by a public ‑ law entity or an organisation under private law responsible for managing a public service, in the exercise of their powers. The urgent-applications judge shall rule within forty ‑ eight hours.’ Article L. 522-1 of the same Code provides: ‘The urgent ‑ applications judge shall give a ruling following written or oral adversarial proceedings. Where the judge is requested to order the measures referred to in Articles   L. 521-1 and L. 521-2, to amend them or bring them to an end, he or she shall inform the parties without delay of the date and time of the public hearing ...’ Lastly, Article L. 522-3 of the Code provides: ‘Where the application is not urgent or where it is clear from examination of the application that it does not fall within the jurisdiction of the administrative courts, is inadmissible or is unfounded, the urgent-applications judge may reject it in a reasoned order, without applying the first two paragraphs of Article L. 522-1.’ Article L. 221-1 of the Immigration and Asylum Code, meanwhile, states as follows: ‘An alien who arrives in France by ... air and who (a) is refused leave to enter French territory or (b) applies for asylum may be held in a waiting zone situated in ... an airport, for the time strictly necessary to arrange his departure and, if he is an asylum-seeker, to investigate whether his application is manifestly unfounded ...’ Article 12 of the Decree of 27 May 1982 as amended states: ‘Where an alien arriving at the border applies for asylum, a decision to refuse him or her leave to enter France may be taken only by the Minister of the Interior, after consultation with the French Agency for the Protection of Refugees and Stateless Persons.’ The documents in the file show that Mr Asebeha Gaberamadhien, an Eritrean national, arrived in France by air and on 1 July 2005 requested leave to enter the country as an asylum-seeker. In accordance with the provisions of Article L. 221-1 of the Immigration and Asylum Code, cited above, Mr Gaberamadhien was held in the waiting zone while his application for asylum was examined. After consulting the French Agency for the Protection of Refugees and Stateless Persons on 5 July 2005, the Minister of the Interior and Regional Development, in the impugned decision of 6   July 2005, refused Mr Asebeha Gaberamadhien leave to enter France on the ground that his asylum application was manifestly unfounded. It is true that the right of asylum and its corollary, the right to request refugee status and, accordingly, to remain in France for the time necessary for the asylum application to be examined, constitute a fundamental freedom for aliens and that, in urgent cases, the urgent-applications judge may order whatever measures are necessary to protect that freedom on the basis of the above-mentioned provisions of Article L. 512-2 of the Administrative Courts Code, where the administrative authorities, in the exercise of their powers, have breached it in a serious and manifestly unlawful manner. However, such a breach cannot result solely from the fact that, in accordance with Article L. 221-1 of the Immigration and Asylum Code, the Minister of the Interior personally took a decision on the asylum application, in this case in the form of the decision of 6 July 2005, since under Article L. 711-1 of the same Code the French Agency for the Protection of Refugees and Stateless Persons can consider only applications for refugee status made by aliens who have been granted leave to enter the country. Moreover, there is nothing in the case file to suggest that the refusal to grant Mr Asebeha Gaberamadhien leave to enter the country – on account of the manifestly unfounded nature of his asylum application – was manifestly unlawful. In particular, the applicant did not provide sufficient and substantiated details as to his identity, his alleged professional activity as a cameraman and photographer in his country of origin, the persecution he alleged and the reasons for it, or the risks he would actually run were he to return to his country of origin or to Sudan, where he was last resident, or any prima facie evidence capable of substantiating those risks or altering the Minister of the Interior’s assessment of the asylum application. The only documents produced by Mr Gaberamadhien, namely the testimony from a journalist who is a refugee in the United States, which contains very little detail, and a letter from Reporters without Borders, are insufficient to establish that he was at personal risk if he returned to his own country or to Sudan. It follows from all the above considerations that the decision of 6 July 2005 of the Minister of the Interior and Regional Development refusing Mr Asebeha Gaberamadhien leave to enter France as an asylum-seeker cannot be said to have breached his right to request refugee status in a serious and manifestly unlawful manner such as to justify ordering measures under Article L. 521-2 of the Administrative Courts Code. Consequently, and in accordance with the above ‑ mentioned provisions of Article L. 522-3 of the Administrative Courts Code, the applicant’s application must be rejected as manifestly unfounded ...” 16.     On 7 July 2005 the applicant was accompanied to the Eritrean embassy by police officers. The applicant claimed that the authorities had presented his account of the events surrounding his asylum application – giving details of the circumstances in which he had fled and the names of the persons who had helped him – to the Eritrean ambassador. The ambassador had launched a violent verbal attack on him in her own language and refused to recognise him as a national of Eritrea and issue him with a laissez-passer. The Government denied that the applicant’s account of events had been presented to the ambassador or that she had expressed a definite opinion on that occasion as to whether the applicant should be issued with a laissez-passer (she had not informed the French authorities of her position on the matter until 15 July 2005). 17.     In a decision of 20 July 2005, “in view [among other considerations] of the request made by the European Court of Human Rights under Rule 39 of its Rules of Court to suspend the applicant’s removal until 30 August 2005”, the Ministry of the Interior granted the applicant leave to enter France. At the same time the applicant was issued with a safe conduct valid for eight days – which referred also to the interim measure indicated to the respondent Government under Rule 39 – to enable him to report to the prefecture and apply for a temporary residence permit as an asylum-seeker. With the help of the National Association for Assisting Aliens at Borders (ANAFÉ – a non-governmental organisation made up of twenty associations and trade unions) and Reporters without Borders, he obtained a one-month residence permit from the Paris Prefecture on 26 July 2005, with a view to his lodging an asylum application with OFPRA (which he duly did). 18.     As stated above, the decision to hold the applicant in the waiting zone for forty-eight hours was taken by the administrative authority on 1   July 2005 at 11 a.m. (see paragraph 11 above). The measure was extended for a further forty-eight hours on 3 July. On 5 July 2005 the liberties and detention judge ( juge des libertés et de la détention ) of the Bobigny tribunal de grande instance – before whom the applicant had appeared, assisted by a lawyer and an interpreter – authorised the holding of the applicant for a further eight days, in an order giving the following reasons: “Mr Gaberamadhien’s application for political asylum is under consideration. He should continue to be held in the waiting zone.” On 13 July 2005 the same judge – before whom the applicant had again appeared, assisted as before – authorised the holding of the applicant in the waiting zone for another eight days, in an order giving the following reasons: “The asylum application was rejected on 6 July 2005. Mr Gaberamadhien does not have a passport. He was taken to the Eritrean embassy on 7 July 2005 and the authorities are waiting for him to be issued with a laissez-passer. He should continue to be held in the waiting zone.” 19.     In a decision of 11 August 2005, following an appeal lodged by the applicant on 18 July 2005 against the order of 8 July 2005, the Conseil d’Etat held in the following terms that it was unnecessary to give a ruling: “... ... Mr Asebeha Gaberamadhien ... lodged an application with the European Court of Human Rights which, in a decision of 15 July 2005, indicated to the French government under Rule 39 of its Rules of Court that it was ‘desirable, in the interests of the parties and of the proper conduct of the proceedings before it, not to remove the applicant to Eritrea before midnight on 30 August 2005’. In response to that request the Minister, in a decision of 20 July 2005 taken after this appeal had been lodged, granted Mr Gaberamadhien leave to enter France, thus enabling him to make an application for asylum. The appellant duly did so, having been issued on 26 July 2005 with a temporary residence permit. The measure thus enacted has the same effect as the measure requested in the application to the urgent-applications judge, which was by definition temporary. In the circumstances, the arguments set out in Mr   Gaberamadhien’s appeal against the order rejecting his application have become devoid of purpose. ...” 20.     By a decision of 7 November 2005 served on 9 November 2005, OFPRA granted the applicant refugee status. As a result, from that point on, Article 33 of the Geneva Convention of 28 July 1951 relating to the Status of Refugees acted as a bar to the applicant’s expulsion to his country of origin. The Government produced a memorandum from the Deputy Head of the Legal and International Affairs Division of OFPRA attesting to this. The memorandum stated that “the Agency therefore considered in view, among other considerations, of the inhuman conditions of imprisonment to which [the applicant] had already been subjected in his country of origin, that his removal to Eritrea would place him at risk of persecution within the meaning of the Geneva Convention”. 21.     The applicant stated that, during his time in the waiting zone in Roissy Airport, the authorities had omitted to carry out a medical examination capable of establishing whether his scars and injuries were the result of ill ‑ treatment. However, he had been able on several occasions (on   6, 7, 11 and 12 July 2005) to meet with an employee from ANAFÉ in the organisation’s office in the airport waiting zone. On 15 July 2005 ANAFÉ drew up a written statement (produced by the applicant) certifying that the employee in question, in the course of her interviews with him, had observed traces of burns on one of his arms at least. The statement added that she had noted “a hollow in the [applicant’s] lower back, which he explained had resulted from the torture inflicted on him in the Zara camp. He demonstrated the position in which he had been forced to remain during his detention, lying face down and with his feet and hands tied above his back”. The applicant also produced a statement written on the same day by the employee herself. In addition, apparently under the guidance of ANAFÉ, the applicant was examined on 17 July 2005 by Dr Lam of the Roissy medical unit of Robert Ballanger Hospital, who issued a medical certificate stating that the applicant did not require any specific medical treatment, but noting the presence of “old scars on the left arm and the right and left knees”. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Right of asylum 22.     The fourth paragraph of the Preamble to the French Constitution reads as follows: “Any person persecuted on account of his or her actions in furtherance of freedom shall have a right of asylum within the territories of the Republic.” The Conseil d’Etat has ruled that the constitutional right of asylum is a fundamental freedom and has as its corollary the right to apply for refugee status. This implies that aliens who request refugee status are authorised in principle to remain on French soil pending a ruling on their application. The Conseil d’Etat has also specified that only if an asylum application is “manifestly unfounded” (see paragraph 23 below) may the Minister of the Interior refuse leave to enter the country, after consulting the French Agency for the Protection of Refugees and Stateless Persons (OFPRA) (see, for example, Ministry of the Interior v. Mbizi Mpassi Gallis , order of 24   October 2005). 23.     Under the terms of the Immigration and Asylum Code: Article L. 711-1 “Refugee status shall be granted to any person persecuted on account of his or her activities in furtherance of freedom and to any person in respect of whom the Office of the United Nations High Commissioner for Refugees exercises its mandate under the terms of Articles 6 and 7 of its Statute as adopted by the United Nations General Assembly on 14 December 1950, or who meets the criteria laid down in Article 1 of the Geneva Convention of 28 July 1951 relating to the Status of Refugees. Such persons shall be governed by the applicable provisions concerning refugees laid down in the above-mentioned Geneva Convention.” Article L. 712-1 “Subject to the provisions of Article L. 712-2, subsidiary protection shall be afforded to persons who do not satisfy the criteria for obtaining refugee status referred to in Article L. 711-1 but who demonstrate that they would be exposed to the following serious threats in their country: (a)     the death penalty; (b)     torture or inhuman or degrading treatment or punishment; (c)     in the case of civilians, a serious, direct and individual threat to their life or personal safety on account of widespread violence resulting from domestic or international armed conflict.” Article L. 713-2 “The persecution taken into account in granting refugee status and the serious threats which may result in the granting of subsidiary protection may emanate from the State authorities, parties or organisations which control the State or a substantial part of the territory of the State, or from non-State agents in cases where the authorities defined in the following paragraph are unwilling or unable to afford protection. The authorities in a position to afford protection may be the State authorities or international and regional organisations.” Article L. 713-3 “Persons who have access to protection in part of the territory of their country of origin may have their asylum application refused if they have no reason to fear persecution or a serious threat there and if it is reasonable to consider that they can remain in that part of the country. Account shall be taken of the overall conditions prevailing in that part of the country and of the personal situation of the applicant and the perpetrator of the persecution at the time a decision is taken on the asylum application.” 24.     Under the terms of Article 1 A (2) of the Geneva Convention of 28   July 1951 (ratified by France on 23 June 1954) and Article 1 of the New York Protocol of 31 January 1967 relating to the Status of Refugees (to which France acceded on 3 February 1971), a “refugee” is any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”. Article 33 of the Geneva Convention reads as follows: Article 33 – Prohibition of expulsion or return (“ refoulement ”) “1.     No Contracting State shall expel or return (‘ refouler ’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. ...” B.     Procedure for claiming asylum at the border and holding of persons in the waiting zone 1.     Procedure for claiming asylum at the border 25.     The purpose of the procedure for claiming asylum at the border is to grant or refuse leave to enter France to aliens who arrive at the border by air without the necessary documen