CEDH · CASELAW;CLIN;ENG — 2 février 2012

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France - 9152/09 Judgment 2.2.2012 [Section V] Article 13 Effective remedy Limited effectiveness of remedy available to asylum seeker to challenge deportation order: violation   Facts – The applicant is a Sudanese national. In May 2008 he was arrested by the Sudanese police and spent eight days in detention and a further two months under surveillance by the authorities, who interrogated him on a weekly basis using violence. In December 2008 he travelled to Spain with a view to crossing the border into France, carrying a forged French visa. On his arrival at the French border the applicant was arrested for the offences of illegally entering or staying in France and forgery and use of forged documents. According to his submissions, he immediately said that he wished to apply for asylum but received no response. He was remanded in custody and appeared before the tribunal de grande instance , which sentenced him to one month’s imprisonment for an offence under the aliens legislation. According to the applicant, he restated before the court his intention to claim asylum. While in detention he applied to the administrative court challenging the order for his removal issued by the prefecture on 7   January 2009. The application was refused. On 16   January 2009 the applicant was placed in administrative detention with a view to his deportation. He was informed the same day of the possibility of applying for asylum, which he did on 19   January 2009. His asylum application was registered on 22   January 2009 under the fast-track procedure, and he was therefore questioned by the French Office for the Protection of Refugees and Stateless Persons (OFPRA) on 30   January 2009. On 31   January 2009 he was notified of the refusal of his application by OFPRA. He appealed against that decision to the National Asylum Tribunal ( Cour nationale du droit d’asile ). Once his asylum application had been refused by OFPRA, the authorities could take steps to deport him. On 16   February 2009 the applicant applied to the European Court under Rule   39 of the Rules of Court, seeking to have the order for his deportation suspended. The Court granted his request for the duration of the proceedings before it. On 19   February 2011 the National Asylum Tribunal granted the applicant refugee status. In the meantime he had obtained a certificate of residence from his municipality of origin in Darfur and a medical report issued by a psychiatrist stating that he had been subjected to violence. Law – Article 13 in conjunction with Article   3: The applicant had made use of the remedies available in the French system in order to assert his complaint under Article   3 of the Convention, applying to OFPRA and then to the National Asylum Tribunal and appealing to the administrative court against the prefectoral order for his removal. He claimed to have mentioned his plans to apply for asylum in France while he was still in police custody, to no avail. Only after being placed in administrative detention had he been able to submit his asylum application to OFPRA. Having been first in police custody and then in detention, the applicant had been unable to report in person to the prefecture to lodge his asylum claim as required by French law. Furthermore, the police reports provided some indications that he had attempted to apply for asylum while he was still in police custody. The authorities had taken the view that the asylum application lodged by the applicant while in administrative detention had been based on “deliberate fraud” or constituted “abuse of the asylum procedure” for the purposes of the French legislation, for the simple reason that it had been submitted after the order for his removal had been issued. It was on that basis alone that his application had been registered under the fast-track procedure. The Court could not but note the automatic nature of the decision to fast-track the application, which had been taken on procedural grounds and had not been linked to the circumstances of the applicant’s case or to the terms or merits of his application. Fast-track asylum procedures, which were applied in many European countries, could make it easier to process applications that were clearly unreasonable or manifestly ill-founded. The re-examination of an asylum application under the fast-track procedure did not deprive aliens in administrative detention of a detailed review of their claims, in so far as they had had a first application examined under the normal procedure. However, the present case concerned a first-time application rather than a re-examination. Hence, the consideration of the applicant’s application by OFPRA under the fast-track procedure would have been the only examination of the merits of his asylum claim prior to his deportation had his request to the European Court for an interim measure not been granted in time. The registering of the applicant’s asylum claim under the fast-track procedure had had significant repercussions in terms of the procedure applied. For instance, the time-limit for lodging the application had been reduced from twenty-one to five days. This was a very short period which imposed particular constraints, as the applicant was expected to submit, while he was in administrative detention, a comprehensive application in French, with supporting documents, meeting the same requirements as applications submitted under the normal procedure by persons not in detention. During his interview with OFPRA, the applicant had been unable to provide the necessary information, which had been decisive for determining his application. His statements had been found to be very vague, or even incorrect, and his application had accordingly been rejected. The use of the fast-track procedure had not enabled the applicant to clarify these points, whereas he had managed subsequently to clear up the alleged inconsistencies and provide the missing documents. The speedy processing of the applicant’s claims should not have been given priority over the effectiveness of the essential procedural guarantees aimed at protecting him against arbitrary removal to Sudan. The registration of his asylum application under the fast-track procedure had resulted in his claims being examined in extremely rapid, not to say summary, fashion by OFPRA. All the constraints imposed on the applicant throughout the procedure, in a situation where he had been in detention and making a first-time asylum application, had undermined in practice his ability to assert his complaints under Article   3 of the Convention. The application to the administrative court challenging the removal order, meanwhile, had been a remedy with fully suspensive effect before a judge competent to examine the applicant’s Article   3 complaints. The remedy in question had theoretically made it possible to conduct an effective examination of the risks allegedly faced by the applicant in Sudan. However, the latter had had only an extremely brief 48‑hour period in which to prepare his application, which was particularly short compared with the two months allowed under ordinary law before the administrative courts. The applicant had been able to submit his application only in the form of a letter written in Arabic which an officially appointed lawyer, whom he had met briefly before the hearing, had read out without having the opportunity to add any evidence to it. This lack of conclusive evidence had been the main reason why the judge had rejected the application. The judge had also criticised the applicant for not having previously lodged an asylum application, although it was not demonstrated that the latter had actually been in a position to do so, having been in detention. Accordingly, the Court had serious doubts as to whether the applicant had been in a position to effectively assert his Article   3 complaints before the administrative court. Accordingly, with regard to the effectiveness of the domestic legal arrangements as a whole, while the remedies of which the applicant had made use had been available in theory, their accessibility in practice had been limited by a number of factors, relating mainly to the automatic registration of his application under the fast-track procedure, the short deadlines for submitting applications and the practical and procedural difficulty of producing evidence while in custody or administrative detention. As to the standard of examination of the applications by OFPRA and the administrative court, this depended at least in part on the standard of the applications themselves. The latter was linked to the conditions in which the applications had been prepared and the legal and linguistic assistance provided to the applicant, which had been inadequate in the instant case. Moreover, the interview with OFPRA had been of short duration given the fact that the case had been complex and had concerned a first-time asylum claim. Lastly, the shortcomings observed with regard to the effectiveness of the remedies used by the applicant had not been offset at the appeal stage, as he had not had access to any suspensive remedy before the appeal courts or the Court of Cassation. In addition, an appeal to the National Asylum Tribunal against OFPRA’s rejection of an asylum application did not have suspensive effect when the fast-track procedure had been applied. The deportation of the applicant, for whom a laissez-passer had already been issued by the Sudanese authorities, had been prevented only by the application of Rule   39 of the Rules of Court. Hence, while the effectiveness of a remedy within the meaning of Article   13 of the Convention did not depend on the certainty of a favourable outcome for the applicant, the Court could not but conclude that, without its intervention, the applicant would have been deported to Sudan without his claims having been subjected to the closest possible scrutiny. Accordingly, the applicant had not had an effective remedy in practice by which to assert his complaint under Article 3 while his deportation to Sudan was in progress. Conclusion : violation (unanimously). Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes