CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 14 septembre 2022

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page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s2DF49AA6 { width:24.54pt; display:inline-block } .s66D2275A { width:157.57pt; display:inline-block } .sA8208715 { width:9.2pt; display:inline-block } .s87B929B5 { width:153.91pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sE208486F { font-family:Arial; color:#ff0000 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4AA8B09A { margin-top:6pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super }   GRAND CHAMBER CASE OF H.F. AND OTHERS v. FRANCE (Applications nos. 24384/19 and 44234/20)   JUDGMENT   Art 1 • Jurisdiction of States • Refusal to repatriate nationals held with their children in Kurdish-run camps after fall of “Islamic State” • Lack of effective “control” by respondent State over area and applicants’ family members • Repatriation proceedings and criminal investigation for involvement in terrorism abroad insufficient to trigger extraterritorial jurisdictional link • Nationality, albeit a relevant factor, not constituting per se autonomous basis of jurisdiction • Jurisdiction not established in respect of complaint of ill-treatment • Jurisdiction established in respect of alleged breach of right to enter own State in view of special features relating to situation in camps Art 3 § 2 P4 • Enter own country • Lack of review with safeguards against arbitrariness for refusal to repatriate nationals held with their children in Kurdish-run camps after fall of “Islamic State” • No general right to repatriation (notably for those unable to reach State border as a result of material situation) • Positive procedural obligations in this context triggered in exceptional circumstances (such as extraterritorial factors directly threatening life and physical well-being of child in situation of extreme vulnerability) • Obligation to ensure that decision-making process is surrounded by appropriate safeguards against arbitrariness and is subject to independent review Art 46 • Individual measures • Prompt examination required of repatriation requests with appropriate safeguards against any arbitrariness   STRASBOURG 14 September 2022   This judgment is final but it may be subject to editorial revision. TABLE OF CONTENTS PROCEDURE THE FACTS I.   BACKGROUND TO THE CASE A.   The conflict in north-eastern Syria B.   Camps of al-Hol and Roj C.   Repatriations by France D.   AANES statement of 18 March 2021 concerning repatriation of foreign nationals II.   SITUATION OF THE APPLICANTS’ DAUGHTERS AND GRANDCHILDREN SINCE LEAVING FOR SYRIA A.   Application no. 24384/19 B.   Application no. 44234/20 III.   PROCEEDINGS BROUGHT TO SEEK REPATRIATION A.   Application no. 24384/19 B.   Application no. 44234/20 RELEVANT LEGAL FRAMEWORK AND PRACTICE I.   DOMESTIC LAW AND PRACTICE A.   Administrative law 1.   Article L. 521-2 of the Administrative Courts Code 2.   The acts of State doctrine (a)   Concept of acts of State (b)   Relevant case-law (c)   Private member’s bill for the creation of a right to judicial review of acts of State as regards the protection of fundamental rights (no. 2604) B.   Criminal law 1.   Criminal court jurisdiction in respect of acts committed abroad 2.   Offence of complicity to commit a terrorist act 3.   Provisions to be made for minors on their return from areas of terrorist group operations 4.   Policy of judicial processing of adults C.   The right to enter and remain in France D.   Consular protection II.   INTERNATIONAL LAW AND MATERIAL A.   Nationality B.   Diplomatic and consular protection 1.   Diplomatic protection (a)   Case-law of the International Court of Justice (ICJ) (b)   International Law Commission (ILC) draft Articles on Diplomatic Protection 2.   Consular assistance and protection C.   International protection of the right to enter one’s own country D.   United Nations Convention on the Rights of the Child E.   UN Security Council Resolutions F.   UN Key Principles for the Protection, Repatriation, Prosecution, Rehabilitation and Reintegration of Women and Children with Links to United Nations Listed Groups (UN Secretary General, April 2019) G.   Other international law material H.   Relevant provisions of international humanitarian law (IHL) III.   COUNCIL OF EUROPE A.   Preparatory work on Protocol No. 4 and Explanatory Report (ETS no.   46) B.   Material from the Council of Europe Parliamentary Assembly and Committee of Ministers (PACE and CM) IV.   EUROPEAN UNION LAW A.   Consular protection of EU citizens B.   Resolutions of the European Parliament V.   COMPARATIVE LAW AND PRACTICE THE LAW I.   JOINDER OF THE APPLICATIONS II.   LOCUS STANDI AND WHETHER THE APPLICANTS ARE VICTIMS III.   SCOPE OF THE CASE AND CHARACTERISATION OF THE COMPLAINTS IV.   THE ISSUE OF JURISDICTION UNDER ARTICLE 1 OF THE CONVENTION A.   The parties’ submissions 1.   The Government (a)   Whether France exercises extraterritorial jurisdiction in north-eastern Syria (b)   Whether a jurisdictional link stems from the domestic proceedings (c)   Whether other circumstances were capable of establishing France’s jurisdiction (d)   The right to enter the country of one’s nationality 2.   The applicants (a)   The bond of nationality (b)   Whether France has extraterritorial jurisdiction in north-eastern Syria (c)   The right to enter the country of one’s nationality B.   Observations of the third-party interveners 1.   Belgian, Danish, Netherlands, Norwegian, Spanish, Swedish and United Kingdom Governments 2.   Council of Europe Commissioner for Human Rights 3.   National Advisory Commission on Human Rights (CNCDH) and Défenseur des droits 4.   UN Special Rapporteurs (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Special Rapporteur on extrajudicial, summary or arbitrary executions, and Special Rapporteur on trafficking in persons, particularly women and children) 5.   Reprieve 6.   Human Rights Centre of Ghent University C.   The Court’s assessment 1.   Applicable principles 2.   Application to the instant case (a)   Preliminary remarks on the scope of the Court’s assessment (b)   Whether France exercises control over the relevant area (c)   Whether a jurisdictional link is created by the opening of domestic proceedings (d)   Whether there are connecting ties with the respondent State (e)   Conclusion V.   ALLEGED VIOLATION OF ARTICLE 3 § 2 OF PROTOCOL No. 4 A.   Admissibility B.   Merits 1.   The parties’ submissions (a)   The applicants (b)   The Government 2.   Observations of the third-party interveners (a)   Intervening Governments (b)   The Commissioner for Human Rights (c)   UN Special Rapporteurs (d)   National Advisory Commission on Human Rights (CNCDH) and Défenseur des droits (e)   Clinique des droits de l’homme (f)   Rights and Security International (RSI) (g)   Reprieve (h)   Avocats sans frontières (i)   Human Rights Centre of Ghent University 3.   The Court’s assessment (a)   Interpretation of Article 3 § 2 of Protocol No. 4 (b)   Whether there is a right to repatriation (c)   Other obligations stemming from Article 3 § 2 of Protocol No. 4 in the context of the present case (d)   Application of those principles to the present case VI.   APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION A.   Article 41 1.   Damage 2.   Costs and expenses 3.   Default interest B.   Article 46 OPERATIVE PROVISIONS JOINT CONCURRING OPINION OF JUDGES PAVLI AND SCHEMBRI ORLAND JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, WOJTYCZEK AND ROOSMA PARTLY DISSENTING OPINION OF JUDGE KTISTAKIS, JOINED BY JUDGE PAVLI In the case of H.F. and Others v. France, The European Court of Human Rights, sitting as a Grand Chamber composed of: Robert Spano, Jon Fridrik Kjølbro, Síofra O’Leary, Georges Ravarani, Ksenija Turković, Ganna Yudkivska, Krzysztof Wojtyczek, Yonko Grozev, Mārtiņš Mits, Stéphanie Mourou-Vikström, Arnfinn Bårdsen, Darian Pavli, Erik Wennerström, Lorraine Schembri Orland, Peeter Roosma, Mattias Guyomar, Ioannis Ktistakis, Judges , and Johan Callewaert, Deputy Grand Chamber Registrar , Having deliberated in private on 29 September 2021, 18 May 2022 and 30   June 2022, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in two applications (nos. 24384/19 and 44234/20) 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 four French nationals, H.F. and M.F., and J.D. and A.D. (“the applicants”), on 6   May 2019 and 7 October 2020 respectively. The President of the Grand Chamber acceded to the applicants’ request not to have their names disclosed (Rule   47   §   4 of the Rules of Court). 2.     The applicants were represented by Ms M. Dosé, a lawyer practising in Paris. The French Government were represented by their Agent, Mr   F.   Alabrune, Director of Legal Affairs at the Ministry of European and Foreign Affairs. 3 .     The applicants alleged that the refusal by the respondent State to repatriate their daughters and grandchildren, who were being held in camps in north-eastern Syria, exposed those family members to inhuman and degrading treatment prohibited by Article 3 of the Convention, and breached their right to enter the territory of the State of which they were nationals as guaranteed by Article 3 § 2 of Protocol No. 4, also interfering with their right to respect for their family life under Article 8 of the Convention (only application no. 44234/20 as regards the latter provision). They further complained, under Article 13 taken together with Article   3 §   2 of Protocol No. 4, that they had no effective domestic remedy by which to challenge the decision not to carry out the requested repatriations. 4 .     The applications were allocated to the Fifth Section of the Court (Rule   52 §   1). On 23   January 2020 and 16 February 2021, notice of the applications was given to the Government, without the parties in application no.   44234/40 being asked to make observations at that stage. On 16   March 2021 a Chamber of the Fifth Section, composed of Síofra   O’Leary, Mārtiņš Mits, Ganna Yudkivska, Stéphanie   Mourou-Vikström, Ivana Jelić, Arnfinn Bårdsen, Mattias   Guyomar, judges, and Victor Soloveytchik, Section Registrar, decided to relinquish these applications in favour of the Grand Chamber, neither of the parties having objected (Article 30 of the Convention and Rule 72). 5.     The composition of the Grand Chamber was decided in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule   24. 6.     The applicants and the Government each filed written observations on the admissibility and merits of the case (Rule 59 § 1). 7.     The Council of Europe Commissioner for Human Rights exercised her right under Article 36 § 3 of the Convention to intervene in the proceedings before the Grand Chamber and submitted written comments. 8.     Observations were also received from the Belgian, Danish, Netherlands, Norwegian, Spanish, Swedish and United Kingdom Governments, the United Nations Special Rapporteurs on the promotion and protection of human rights and fundamental freedoms while countering terrorism, on extrajudicial, summary or arbitrary executions, and on trafficking in persons, particularly women and children, Reprieve, Rights and Security International, Avocats sans frontières, the National Advisory Commission on Human Rights ( Commission nationale consultative des droits de l’homme – CNCDH), the Défenseur des droits , the Clinique des droits de l’homme and Ghent University Human Rights Centre, the President of the Grand Chamber having granted them leave to submit written comments as third parties (Article 36 § 2 of the Convention and Rule 71 § 1 and Rule   44 §   3). The parties replied to the third-party observations in the course of their oral submissions at the hearing (Rule   71   §   1 and Rule   44 § 6). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 29 September 2021. There appeared before the Court: (a)     for the Government Mr F. Alabrune ,   Agent , Mr B. Chamouard ,   Co-Agent , Mr J.B. Desprez , Mr A. Le Cour Grandmaison , Ms C. Faure , Ms F. Diana-Martinez , Ms A. Roux , Ms L. Neliaz ,   Advisers ; (b)     for the applicants Ms M. Dosé , lawyer   Mr L. Pettiti , lawyer   Counsel , Professor S. Van Drooghenbroeck ,   Adviser ; (c)     for the Office of the Commissioner for Human Rights, third party, Ms D. Mijatović ,   the Commissioner for Human Rights , Mr G. Cardinale , Mr M. Birker ,   Advisers ; (d)     for the Belgian, Danish, Netherlands, Norwegian, Spanish, Swedish and United Kingdom Governments, third parties, Ms B. Koopman ,   Agent , Sir James Eadie QC ,   Counsel .   The Court heard addresses by Mr Alabrune, Ms Dosé, Mr   Pettiti, Ms   Mijatović, Sir James Eadie and Ms Koopman, and the replies given by Mr   Alabrune, Ms Dosé, Mr   Pettiti and Professor Van Drooghenbroeck to questions from judges. THE FACTS BACKGROUND TO THE CASE 10.     The applicants H.F. and M.F. were born in 1958 and 1954 respectively. The applicants J.D. and A.D. were both born in 1955. 11.     In 2014 and 2015 the applicants’ daughters travelled to Syria on their own initiative with their respective partners (see paragraphs 30 and 38 below). Their decision to leave was part of a broader movement in which nationals from several European States went to Iraq or Syria to join “Daesh” (the so-called “Islamic State in Iraq and the Levant” or “ISIL”, also known as “ISIS”). The conflict in north-eastern Syria 12 .     By the time of the applicants’ daughters’ departure, Daesh was reaching its maximum territorial expansion in Iraq and Syria and was announcing the foundation of a “caliphate” under the leadership of Abu Bakr al-Baghdadi. In 2014 an international coalition of seventy-six States (Operation Inherent Resolve), with the participation of France – which mainly provided air support –, was mobilised to provide military support to local forces engaged in the fight against Daesh, including the Syrian Democratic Forces (“the SDF”) dominated by the Kurdish militia of the People’s Protection Units (Yekîneyên Parastina Gel – “the YPG”), the armed wing of the Democratic Union Party. The latter established itself as the de facto political and administrative authority over a territory that gradually extended to the whole of north-eastern Syria as Daesh retreated. The SDF mainly comprises the YPG together with the Women’s Protection Units (“the YPJ”), Arab fighters and the Syriac Military Council. 13.     Since 2013, Syrian Kurdistan, a de facto autonomous region, has had its own administration. In early 2014 a “Democratic Autonomous Administration of Rojava” was proclaimed. In 2018 it was strengthened and renamed the “Autonomous Administration of North and East Syria” (“the AANES”). 14 .     In 2017 Daesh lost control of the city of Raqqa, its capital, to the SDF. From March 2019 onwards, following the fall of the last territorial retreat in al-Baghuz, on the eastern fringe of Syria, the SDF controlled all Syrian territory east of the Euphrates River. The SDF offensive caused tens of thousands of men, women and children to flee, the majority of them families of Daesh fighters. Most of them, including the applicants’ daughters, were reportedly arrested by the SDF during and following the final battle, and taken to al-Hol camp between December 2018 and March 2019. 15.     Following the announcement of the withdrawal of US forces, the Turkish military took control in October 2019 of a border region in north-eastern Syria. This led the SDF to reach some local security arrangements with the Syrian regime but also with Russia. Clandestine cells of Daesh remain active in the region. Camps of al-Hol and Roj 16 .     The al-Hol and Roj camps were placed under the military control of the SDF and are run by the AANES. 17 .     According to the International Committee of the Red Cross, 70,000 people were living in al-Hol camp as of July 2019. At that time its regional director described the situation in the camps as “apocalyptic”. According to a press release issued on 29   March 2021, following a visit by its president, this figure was reduced to 62,000, “two thirds [of whom] [were] children, many of them orphaned or separated from family ”. The press release further stated that those children were growing up in harsh and often very dangerous conditions. 18.     The majority of the people held in al-Hol camp were Syrian or Iraqi. More than 10,000 people from other countries, of fifty-seven different nationalities, are reported to be, still today, in an area of the camp known as the “Annex”. 19.     According to the Government, the area of the camp set aside for foreign families, “in which French nationals are held”, is exclusively inhabited by members of Daesh who perpetuate that group’s threats “on the spot and outside”. 20 .     By the start of 2021 the activity of the humanitarian organisations had been greatly reduced owing to the critical security situation in the camp. According to the Government, this situation led the SDF to carry out a security operation in the camp (from 27 March to 2   April 2021), outside the Annex reserved for foreigners, leading to the arrest of about one hundred members of Daesh. This situation explains, according to them, why SDF representatives have difficulties accessing certain areas of the camp and why it is difficult for them to identify and locate precisely the persons held in the foreigners’ Annex. 21.     Roj camp, located to the north of al-Hol and surrounded by oil fields, is significantly smaller. In order to address the overcrowding of al-Hol camp, transfers of people held in the Annex took place during the year 2020.   According to the report by the non-governmental organisation (NGO) REACH, published in October 2020, 2,376 individuals were being held in Roj camp, of whom 64% were children, 17% of them aged 4 or under. According to the NGO Rights and Security International (RSI – see paragraphs 24 and 25 below), it is more difficult to obtain information about this camp, as it is reported to be under tighter control and its occupants are virtually unable to communicate with the outside world. 22 .     In decision no. 2019-129 of 22 May 2019, the Défenseur des droits described the living conditions of children in the camps as follows: “The extreme conditions in which French children are held in camps under the control of the Syrian Democratic Forces in northern Syria are notorious and the health situation in these camps has been widely reported. These children are not safe: a French child aged one and a half died in Roj camp in mid-September 2018, hit by a military vehicle; on 8 March 2019, an 18-day-old infant died of pneumonia. In a statement on 31   January 2019, the World Health Organization (WHO) reported the deaths of twenty-nine children and newborns in al-Hol camp in two months, most of whom were suffering from hypothermia.” 23.     In its “Opinion on French children held in Syrian camps” of 24   September 2019, the National Advisory Commission on Human Rights ( Commission nationale consultative des droits de l’homme ) stressed the “extreme vulnerability” of the children in the camps of the Rojava region, “most of whom [were] under five years of age”, and who were “particularly exposed to unhealthy living conditions”, also having “severe physical and mental health problems”. 24 .     According to the RSI report published on 25   November 2020 entitled “Europe’s Guantanamo: The indefinite detention of European women and children in North East Syria”, 250 children and 80 women of French nationality were being held in the camps of al-Hol and Roj. Of the 517 people who died in 2019 in al-Hol camp, 371 were children. In August 2020 aid workers had indicated that the death rate of children had tripled, with eight   children dying between 6 and 10 August 2020. According to the report: children held in both camps suffered from malnutrition, dehydration, sometimes war injuries and post-traumatic stress and were reportedly at risk of violence and sexual exploitation; the weather conditions were extreme; the detention conditions were inhumane and degrading; there was an atmosphere of violence, caused by tensions between women still adhering to ISIL and others, as well as by the violent conduct of the camp guards (see also paragraph 238 below). 25 .     In its report of 13 October 2021, “Abandoned to Torture: Dehumanising rights violations against children and women in northeast Syria”, RSI concluded that the conditions endured by women and children of foreign nationalities in the al-Hol and Roj camps were exposing them to treatment that could be characterised as torture. It noted that those women and children were constantly threatened with serious injury or death and faced a real risk of sexual or other physical violence, comparing their detention to that of prisoners on death row. It referred to a report by the NGO Save the Children, which had established that about two children had died every week in al-Hol camp between January and September 2021, and that seventy ‑ nine   individuals had been murdered, including three children, who had been shot. RSI further pointed out that the women and children were being held arbitrarily and for an indefinite duration, often on the sole basis of their presumed links with members of ISIL, and in many cases incommunicado, with no possibility of communicating with the outside world, not even with their families or with lawyers, leaving them in legal limbo. Repatriations by France 26 .     Between March 2019 and January 2021 France organised the repatriation of children from camps in north-eastern Syria on a “case-by-case” basis (on the practice of other States, see paragraphs 138 to 142 and   236-237 below). It sent five missions to Syria and repatriated thirty-five French minors, “orphans, unaccompanied minors or humanitarian cases”. In a press release of 15   March 2019, the Ministry for European and Foreign Affairs (“the Foreign Ministry”) stated that France had repatriated several orphaned minors under the age of five from the camps in north-eastern Syria: “These children are undergoing special medical and psychological monitoring and have been entrusted to the judicial authorities. The relatives concerned, who were in contact with the Ministry, have been informed. France thanks the Syrian Democratic Forces for their cooperation, which made this outcome possible. The decision was taken in view of the situation of these very young and particularly vulnerable children. As regards adult nationals – fighters and jihadists who followed Daesh in the Levant   – France’s position has not changed: they must be tried on the territory where they committed their crimes. It is a question of both justice and security.” 27 .     In subsequent press releases, dated 10 June 2019, 22 June 2020 and 13   January 2021, it was stated that France was “grateful to local officials in north-eastern Syria for their cooperation, which made this outcome possible” and that “these particularly vulnerable minors were able to be collected in accordance with the authorisations given by local officials”. 28.     In a press release of 5 July 2022, the Foreign Ministry announced that France had organised the return to national territory of thirty-five minors of French nationality and sixteen mothers. In a letter of 13 July 2022, the applicants’ lawyer informed the Court that their daughters and grandchildren were not among the French nationals repatriated, as confirmed by the Government in a letter of 28 July 2022. AANES statement of 18 March 2021 concerning repatriation of foreign nationals 29 .     Prior to the above development, in 2021 the AANES published a statement which read as follows: “After the liberation of Al-Baghouz and the military fall of ISIS, the war effort against ISIS entered a new phase. Thousands of ISIS detainees and their families as well as the sleeper cells have posed serious challenges for the Autonomous Administration of North and East Syria (AANES). We, as AANES believe that the children need to get out of the radical atmosphere in the camps, and receive proper rehabilitation to live a normal life. Therefore, we handed over orphaned children to official bodies from their countries based on our humanitarian approach. However, the number of repatriation cases is still low. As for women and their children, we, from the very beginning, have followed and abided by the relevant laws that do not permit separating the mothers from their children, except in some very special humanitarian cases, and at the request of some mothers after getting their written consent. We have called on the international community on several occasions to repatriate women who were victims of ISIS and who we do not have any proof against. The response was insufficient, and some countries insisted to repatriate the children without the mothers. With regard to ISIS fighters, who belong to more than 50 countries, the AANES submitted a request, on March 25, 2019, to the international community and the countries that have ISIS members in our custody, to establish an international tribunal or hybrid domestic-international tribunal to try them in accordance with international laws. Until now, we have not received enough cooperation and response. As for the Syrians, they are being tried according to the local laws procedures, but the foreigners constitute a burden, and we need the cooperation of their countries and the international community. The AANES suffer from huge difficulties to accommodate ISIS fighters and their families. This file constitutes a great burden on us, which we cannot bear on our own, and the international community should assume its responsibilities to help us address this file. Also, ISIS is still organized in terms of ideology in our region, and there is clear support for ISIS through the cells who receive support from the Turkish occupied regions. The AANES rejects the claims that ISIS fighters are illegally detained in our region, as we repeatedly called on establishing a tribunal to prosecute them. The AANES welcomes the cooperation with the international community on the issues of repatriating the children, solving the issue of women, and making reparation for the victims. In conclusion, we affirm that we welcome legal cooperation and international expertise in order to provide support for the tribunal, which we want to be hybrid domestic-international. We request international cooperation with us to resolve this issue, which does not concern us only, but is the responsibility of the entire world. We reiterate that our appeals did not receive the necessary response, and there is an exacerbation of the situation, especially in the camps, which creates huge difficulties for us.” SITUATION OF THE APPLICANTS’ DAUGHTERS AND GRANDCHILDREN SINCE LEAVING FOR SYRIA Application no. 24384/19 30 .     The applicants’ daughter, L., who was born in 1991 in Paris, left France on 1 July 2014 together with her partner to travel to the territory in Syria then controlled by ISIL. On 16 December 2016 a judicial investigation was opened against her on the charge of criminal conspiracy to commit acts of terrorism (see paragraph 70 below) by a judge of the Paris tribunal de grande instance and a warrant was issued. The Government did not specify the nature of the warrant or the status of the proceedings, invoking the confidentiality of the investigation. 31.     L. and her partner, who died in February 2018 in circumstances which the applicants have not specified, had two children in Syria, born on 14   December 2014 and 24 February 2016. 32.     According to the applicants, L. and her two children were arrested on 4   February 2019 and were initially held in al-Hol camp. In their submission, on the day that the application was lodged with the Court, the state of health of L. and her two children was distressing. L. was very thin and had been suffering from severe typhoid fever which had not been treated. One of her children had untreated shrapnel wounds and the other was in a state of serious psychological instability, traumatised by the burning of several tents in the camp. 33 .     Since 2016 L. had informed the applicants of her wish to return to France with her two children. The applicants provided a copy of a message from L. written on a sheet of paper that she had apparently photographed and sent by telephone. The message read: “I, the undersigned L. born on 16/07/91 in Paris 18, currently in al-Hol camp in Hassaka in Syria, request to be repatriated to France with my 2 children, [S] 3 years old and [S] 4 years old, both born in Syria.   Dated 16/04/2019. ” 34 .     On 21 May 2019 counsel for the applicants sent the Court a copy of a text written by L. “who [had] photographed it using a mobile phone, that [did] not appear to be hers, for the purpose of giving [the said counsel] authority to represent her to obtain her repatriation to France”: “I, the undersigned, [L.] born on 16/07/1991 ... hereby give authority to Maître Dosé to represent my interests with a view to my repatriation to France. On 6/5/2019 In Hassaka.” 35.     On 8 June 2019 counsel for the applicants, having been informed of the transfer of L. and her two children from al-Hol camp to a prison or another camp, sent an e-mail to the Foreign Ministry calling for urgent action regarding their situation and to obtain information about their “request for repatriation ... registered by the Foreign Ministry”. 36 .     The applicants stated that they had not received news of L. since June 2020. She was thought to be held in one of the two camps or with her two   minor children in the “underground prison”. 37.     For their part, the Government stated that they were unable to confirm to the Court that L. and her children were still in al-Hol camp for the reasons given in paragraph 20 above. They explained that the information available to the Foreign Ministry had been received from the applicants. Application no. 44234/20 38 .     The applicants’ daughter M., who was born in 1989 in Angers, left France in early July 2015 with her partner to travel to Mosul in Iraq and then, a year later, to Syria. A preliminary police investigation was apparently opened against her on 18 January 2016, but the Government did not provide any information about it. 39.     M. gave birth to a child on 28 January 2019.   Mother and child were thought to have been held in al-Hol camp from March 2019 onwards then transferred in 2020 to Roj (see paragraph 41 below). M. had lost touch with the child’s father, who had reportedly been held in a Kurdish prison. The applicants said that she was very thin, had lost more than 30 kilos in weight, was malnourished and, together with her child, was suffering from numerous war-related traumatic disorders. At the hearing the applicants stated that the child suffered from heart disorders. 40.     On 26 June 2020 the applicants’ counsel sent an urgent email to the justice adviser of the French President and to the Foreign Ministry, without receiving any reply, in which she expressed the concern of the families, including the applicants, following the transfer of several French nationals and their children by the guards of al-Hol camp to an unknown location. 41 .     In a message dated 3 October 2020, the applicants wrote to their counsel to inform him of their wish, and that of their daughter, to lodge an application with the Court: “As you know, I was able to speak very briefly with my daughter who, like me, would like you to bring a case, on behalf of her and her son, before the European Court of Human Rights. The difficulty is that: she was taken from al-Hol camp to Qamishli prison by the Kurds on 11 June last, with her son; she was transferred to the new Roj camp on 4 August; and lastly, she no longer has a mobile phone, [it] was confiscated by the Kurds when she left al-Hol, and there is no longer any way for her to send me anything in writing. The only thing she is allowed to do is to send me a short audio message of barely one minute, under the surveillance of the guards, once every two or three weeks. She cannot formalise her wishes, this is a case of force majeure .” 42 .     The applicants stated that they had received little news of their daughter, in view of the restrictions on her access to a telephone provided by the Kurdish administration in Roj camp. They produced a bailiff’s report dated 23   April 2021 which recorded two voice messages from M. left on their voice-mail, the first of which reads as follows: “My name is M. I leave it to my parents to handle my appeal to the European Court of Justice [ sic ] with Marie Dosé. I agree with the intervention”; while in the second, M. expressed her hopes that the first would suffice and gave news of the dental treatment she had received and the progress being made by her son. 43.     For their part, the Government stated that they were not in a position to confirm or deny the presence of M. and her child in Roj camp. PROCEEDINGS BROUGHT TO SEEK REPATRIATION Application no. 24384/19 44 .     In an email sent on 31 October 2018 to the Foreign Ministry, which remained unanswered, the applicants requested the repatriation of their daughter, who was “very weak”, together with their grandchildren, drawing attention to her reiterated wish to return to France – “she could not [return] because she was alone with two small children and had no money” – and to the danger for the life of the grandchildren in view of their state of health. They stated that their daughter “had done nothing wrong” and had been “manipulated” in 2014 by the now deceased father of her children. 45 .     In an application registered on 5 April 2019 they called upon the urgent applications judge of the Paris Administrative Court, on the basis of Article L. 521-2 of the Administrative Courts Code (see paragraph 59 below), to enjoin the Foreign Ministry to organise the repatriation of their daughter and grandchildren to France, arguing that their family members were exposed to inhuman and degrading treatment and to a serious and manifestly unlawful infringement of their right to life. They stated that the repatriation of the children was justified on obvious humanitarian grounds, as the inhuman conditions of detention in the camp had been documented by numerous international organisations. They claimed that the State had a responsibility, as part of its positive obligations, to protect individuals under its jurisdiction, stating that “the responsibility of the State concern[ed] both individuals on its territory and its nationals present in an area outside the national territory over which it exercise[d] control in practice. The repatriation of five orphaned children held in this camp on 15 March [had] highlighted the decision-making and operational capacity of the [Foreign Ministry] to organise and carry out the repatriation [of the] children”. In support of their application they produced their request for repatriation of 31 October 2018 and the requests submitted to the French President a few months earlier by their counsel, on behalf of several women and children who were held in the camps in north-eastern Syria, together with the response of the President’s chief of staff. 46 .     This response stated that the individuals concerned had deliberately left to join a terrorist organisation at war with the coalition in which France was participating, and that it was up to the local authorities to decide whether they were liable for any offences. It explained that if no liability on their part were to be found, France would take steps appropriate to their situation in the light of the warrant issued against them. It contained the French Government’s position, as set out in a note entitled “Requests for the repatriation of French nationals held in the Levant”, as follows: “(1)     By way of reminder: these individuals left of their own volition to join a terrorist organisation that has committed acts of unprecedented violence against the local population in this area. This terrorist organisation has committed and is still planning attacks in France which have already caused numerous victims. (2)     The issue of the repatriation of these people who, after having joined DAESH, are now being held by the authorities and military forces that have liberated the territories formerly controlled by the terrorist organisation, cannot be separated from the context of the war in the region, in which they took part. In Syria, this war is not even over, as fighting continues and the institutional situation has not been stabilised. (3)     Their situation must be assessed in line with international lawfulness and in the context of relations with the States in which they are held and, lastly