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Cite as: [1991] ECHR 75

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APPLICATIO Nos. 17550/90 and 17825/91
(joined)

V and P v/FRANCE

DECISION of 4 June 1991 on the admissibility of the application

Article 3 of the Convention Expulsion of a person to a country where there are
reasons to believe he will be subjected to treatment contrary to Article 3 may raise an
issue under this Article (Application declared admissible)

Article 25 of the Convention A person who is about to be subjected to a violation of
the Convention may claim to be a victim Such is the case of a person who is in the
hands of a High Contracting Party which has decided to expel him to a foreign
country, when expulsion is imminent and could expose him, in his assertion to
treatment contrary to Article 3

In this case, the question whether the risk oj treatment contrary to Article 3 is real or
whether it will arise after dismissal of an appeal under the French Law of 10 January
1990 (Article 22 his of the Order of 2 November 1945) falls to he examined with the
merits of the application Applicant s status as victim recognised

Article 26 of the Convention

a) To be effective, a remdy must be capable of remedying the criticised state of affairs
directly and not merely indirectly

b) When an individual claims that the enforcement of a deportation order against him
violates Article 3 of the Convention, a remedy which has no suspensive effect is not
effective

298

c) Someone who, after rejection by OFPRA and the Refugee Appeals Board (France)
of an asylum request, and in the absence of any decision indicating the country of
destination, complains of a violation of Article 3 in the event of expulsion to a
specific country, is not required to attempt other remedies.

(TRANSLATION)

THE FACTS

The facts of the case, as submitted by the parties, may be summarised as
follows.

The first applicant, born in 1962 in Jaffna, is a Sri Lankan national of Tamil
origin, resident in Jouarre.

309

The second applicant is a Sri Lankan national of Tamil origin, born in 1964
and resident in Pans

The applicants are represented before the Commission by Mr. Giiles Piquois,
a member of the Paris Bar

I. The first applicant

It is alleged that while he was a student at the Jaffna technical college the
first applicant participated in the activities of the Tamil Eelam organisation and
particularly the publication of leaflets denouncing the actions of the Sri Lankan
army. On 10 and II May 1983 he boycotted classes and distributed leaflets with
his fellow students.

While this distribution was taking place soldiers arrived and arrested the
applicant and his comrades, who were then imprisoned, the applicant being
released after two weeks.

On 9 April 1984, having discovered that he was wanted by the army, the
applicant left to live with his uncle in Karavetty. Following his disappearance the
applicant's father was seriously wounded by soldiers on 14 April and had to be
admitted to hospital in Jaffna in a very serious condition

On 24 July 1984 Sn Lankan forces were attacked by members of the "Tamil
Tigers" movement and two of the applicant's friends and neighbours killed
themselves by taking cyanide, rhe applicant then took refuge with his uncle again.
On his return, on 10 August I9S4, he was arrested and taken to the Palaly camp,
where he was maltreated, as he was suspected of belonging to the "Tamil Tigers"

He was released on 29 August 1984 and treated in a private hospital, only
returning to live with his parents in Jaffna on 14 January 1988.

Following the shelling of an army camp situated near his village the
applicant was arrested again on 8 October 1988 and taken to the Jaffna Kotai
camp. He was released on 20 October 1988 and went to live in Karavetty again.
He campaigned on behalf of one of his relati\es, who stood as a candidate in the
elections of 15 February 1989, and was arrested on 12 March 1989 at his uncle's
home, then taken to the Palaly camp and released after 19 days

In November 1989 the applicant's parents, uncle and aunt were questioned
and threatened with a view to discovering his whereabouts

310

The applicant left Sri Lanka on 27 November 1989 and arrived in France on
1 January 1990.

In July 1990 soldiers earned out a bomb attack on his father's home and
shop. His sister died in the attack and his father was very seriously wounded and
is receiving treatment at the hospital in Kayts. His mother is at present in a
refugee camp.

The applicant's request for asylum was rejected on 18 July 1990 by the
French Office for the Protection of Refugees and Stateless Persons (OFPRA -
Office francais de protection des refugies et apatrides) and his appeal was
dismissed by the Refugee Appeals Board on 9 November 1990, the Board taking
the view that there was no evidence in the file to establish the truth of the facts
alleged or prove that the fears expressed were well-founded

On 10 December 1990 the applicant was served with an order from the
prefecture in Melun requiring him to leave French territory within one month and
informing him that if he was still in French territory after the expiry of that limit
he would be liable to deportation or a prison sentence and fine.

The applicant produced three certificates, one from a notary in Anaicoddai,
one from St. Mary's Church in Kopay and one from a former municipal
councillor in Jaffna, all confirming that the applicant had been arrested several
times, imprisoned and tortured, and that after he had taken flight his parents'
home and office had been destroyed, his sister killed, his father seriously
wounded and his mother forced to take refuge in St. Mary's Church

2. The second applicant

It is alleged that in 1984, when the second applicant was a student in
Kokuvil, his native town, he joined and played an active role in the "Liberation
Tigers of Tamil Eelam" movement (LTTE), becoming propaganda secretary for
the movement in his region, with responsibility for recruiting young people and
collecting funds.

During the offensive of the Indian peace-keeping force in 1987 the
applicant's family home was destroyed and his parents took refuge in the neigh-
bouring village of Arigalai, about four kilometres from Kokuvil.

On 4 May 1988 groups collaborating with the Indian armed forces came to
look for the applicant at his home, wounding his father in the chest with a knife.
The father died because of the loss of blood resulting from this wound while
being taken to hospital in Jaffna

311

Following this incident the applicant s younger brother joined the armed
struggle in the ranks of the "Tamil Tigers \ the applicant took refuge in the village
of Navatkuly and his mother in the Catholic church in Kopay

In February 1989 the applicant returned to Kokuvil and resumed his
activities

On 4 May 1989 he was arrested by the Indian army and imprisoned in
Kopay camp, where he was severely tortured The applicant states that his body
still bears visible marks of torture He was released thanks to the efforts of the
Kopay parish priest so that he could be taken to hospital The applicant then
made good his escape His mother was taken to the camp at Kopay by Indian
soldiers seeking the applicant

The applicant first went to Colombo before leaving Sri Lanka on 13 August
1989 He made his way to Madras and then, using a false passport, to Thailand
and Belgium He entered France on 3 October 1989 and requested political
asylum

The OFPRA rejected the applicant's request on 17 May 1990

On 26 June 1990 the applicant appealed against this decision, producing in
support of his appeal a certificate from the priest of St Mary's Church in Kopay
confirming that he had been persecuted by the Indian army , that his father had
been murdered by the armed forces , that his brother had joined the armed
struggle , that his mother had taken refuge in the church that the applicant had
been arrested by the Indians and released at the cost of a great deal of trouble as
a result of his (the priest's) own intervention He also produced a medical certi-
ficate, made out in Pans on 2 October 1990, noting the existence of several scars
and confirming that all the lesions found were consistent with the applicant's
allegations

On 25 October 1990 the Appeals Board dismissed the applicant's appeal for
the following reasons

"Neither the documents in the file nor the oral submissions to the Board in
public session adequately establish the truth of the facts alleged or prove that
the fears expressed are well- founded , in particular, the documents
produced and submitted, such as a medical certificate, issued in Paris on 2
October 1990, or the statement by a priest dated 17 May 1990, are inade-
quate in that respect "

312

On 8 January 1991 the applicant asked the director of the OFPRA to
re examine his case, pointing out that he had arnved in France in May 1990, that
his younger brother had been killed on 17 November 1990 in the fighting between
the LITE and the Sn Lankan army and that his mother had been wounded and
was in a serious condition

On 22 January 1991 the Pans Prefect of Police ordered the applicant to leave
French territory by 22 February 1991 failing which he would make himself liable
to deportation by prefectoral order

In addition to the certificates already submitted to the French authorities, the
applicant produced a statement dated 30 May 1990 to the effect that he had
participated in all the political and social activities of the LTTE. that he was
popular among his fellow students, that his father had been killed by the Indian
forces and that his brother had joined the LTTE The statement adds that the
applicant fled Sn lanka to save his life

COMPLAINT

Before the Commission the applicants claim that if they are sent back to Sri
Lanka they will immediately be arrested and tortured, or even killed, by the Sri
Lankan forces or paramilitary groups

THE LAW

The applicants* complaint is that they are obliged to leave France to go to
their country of origin, where they would be in danger of being arrested and
tortured

1 The respondent Government point out, first of all, that the purpose of the
applications is to secure a right of residence in France and the suspension of any
expulsion measures through application of Rule 36 of the Commission s Rules of
Procedure, and maintain that they are consequently incompatible with the
convention which does not guarantee any right of residence or asylum

The Commission recalls in the first place that, according to its constant
case law, the Convention does not guarantee any right of residence or asylum in a
State of which one is not a national (cf, for example, Nos 1802/62, Dec 26 3 63,
Yearbook 3 pp 463, 479, and 7256/75, Dec 10 12 76, D R 8 p 161)

313

However, according to the case-law of the institutions of the Convention, a
decision to send a person back to his country of origin may in certain circums-
tances be contrary to the Convention, Article 3 in particular, when there are
strong reasons to believe that the person in question may be subjected to
treatment prohibited by that Article in the country to which he is to be sent (cf,
for example, No 6315/73, Dec 30974, DR I p 73 , No 7011/75, Dec 3 1075,
D R 4 p 215 , No 12122/86. Dec 16 10 86, D R 50 p 268 , Eur Court H R ,
Cruz Varas and Others judgment of 20 March 1991, Series A no 201, paras
69-70) The applicants' complaint that they would be persecuted and possibly
killed if they were returned to Sri Lanka therefore falls within the scope of the
Convention

Consequently, notwithstanding the applicants' request in their applications
that the Commission intervene to secure authorisation for them to reside in
France, in so far as the applications concern the return of the applicants to Sri
Lanka they are not incompatible with the Convention and the Government's
objection relating to this point is invalid

2 The respondent Government also maintain that the applicants have not
exhausted domestic remedies, thus failing to comply with Article 26 of the
Convention

The Government point out in this connection that the applicants could have
appealed to the Conseil d'Etat against the Refugee Appeals Board's rejection
decision They emphasise that the Conseil d Etat exercises a considerable degree
of supervision over the decisions of the Refugee Appeals Board and that this is
one remedy which can lead in certain cases to an annulment of the decision The
Government cite in this connection the case law of the Consei! d Flat, claiming
that it shows how the Conseil d'Etat exercises this supervision particularly in
cases involving procedural irregularities, inadequate reasons, errors of law, errors
of fact errors in the legal classification of facts or distortion of the faciei or
documents in the file

The Government also point out that the applicants failed to appeal against
the orders requiring them to leave French territory, although this was a remedy
available to them

In addition, the Government point out that any alien whose request for
asylum has been finally rejected may present an exceptional request for residence
to be authorised on the grounds of his integration in France or the risks he would
run if he were to return

314

The applicants maintain that the remedies mentioned by the Government
have no suspensive effect and are consequently not effective for the purposes of
Article 26 of the Convention.

The Commission recalls, first of all, that the exhaustion of domestic remedies
rule is intended to enable the State criticised to remedy the situation of which
applicants complain. For that purpose, only remedies which enable the competent
national authorities, particularly (he courts, to consider the complaint raised and
to provide a remedy are to be taken into account. To be effective, a remedy must
be capable of remedying the criticised state of affairs directly, and not merely
indirectly (cf., for example. No. 10092/82, Dec. 5 10.84, D.R 40 p. 118)

In this case the applicants' complaint concerns their repatriation to Sri
Lanka, not their expulsion from France as such However, no national decision
has yet been taken regarding the country to which the applicants might be sent
Such a decision could only be taken at a later stage, and in any case not before
deportation orders have been issued against them. In the absence of any
indication of the country to which the applicants are to be sent in the state
measures which can be contested by means of the remedies recommended by the
Government, a reference to risks of maltreatment in a specified country, namely
Sn Lanka, is not a remedy capable of leading to the annulment of the measures in
question.

Moreover, the Commission refers to its constant case-law to the effect that a
remedy which does not suspend execution of a decision to expel an alien to d
specified country is not effective for the purposes of Article 26 of the Convention
and there is no obligation to have recourse to such remedy where the applicant
alleges a violation of Article 3 of the Convention (cf. No 10400/83, Dec. 14.5.84,
D.R 38 p. 145 ; No 10760/84, Dec 17 5 84, D.R 38 p ?24 ; No 10564/83, Dec
10.12.84, D R. 40 p. 262) In this case the remedies in question have no suspensne
effect.

In the light of the foregoing considerations, the Commission takes the view
that the Government's objection relating to the non-exhaustion of the remedies
mentioned above is invalid

3. Lastly, the Government point out that any deportation order against the
applicants could be contested by means of an appeal with suspensive effect in
accordance with Article 22 bis of the Order of 2 November 1945, and that when
such an appeal is submitted the Administrative Court considers whether the
expulsion measure is likely to have exceptionally serious consequences for the
personal or family situation of the person concerned.

315

The Commission recalls that in this ease the applicants have not been served
with deportation orders. Consequently, as regards Article 26 of the Convention,
they cannot be reproached with failing to avail themselves of a remedy against
such an order

Nevertheless, the fact that no deportation order has been issued and the
existence of a remedy whereby such an order can be contested may have a bearing
on the status of "victim", within the meaning of Article 25 para. 1 of the
Convention, which applicants must have in order to be able to introduce an
individual petition before the Commission

In this connection the Government point out that, since in the first place no
deportation orders have been issued against the applicants and in the second
place no decision with regard to the country where they might be sent has been
taken, they cannot claim to be victims of a violation of Article 3 of the
Convention. The Government also point out that in any case, if deportation
orders are issued against the applicants, they will be able to contest these by
means of a fully effective and adequate remedy, introduced by the legislator to
reinforce the guarantees protecting aliens affected by an expulsion measure on the
grounds of unlawful entry or residence by granting them the right to have their
situation examined in the context of adversarial court proceedings.

This remedy, provided for by the Law of 10 January 1990 (Article 22 bn of
the Order of 2 November 1945 on conditions governing entry into and residence
in France by aliens) consists in an appeal to the president of the Administrative
Court and has an automatically suspensive effect. The appeal must be lodged
within the twenty-four hours following service of the prefectoral deportation order
and the Administrative Court must decide the issue within forty-eight hours of the
lodging of the appeal. Fhese limits were calculated to reconcile respect for the
rights of the defence with the legitimate concern of the authorities to be able to
ensure execution of the measures taken, since administrative detention may not
exceed seven days

The Government further point out that where there is a dispute about the
date or time of service of the deportation order it is for the authorities to prove
before the court the date of service, the benefit of any doubt being given to the
person concerned.

In addition, provision has been made for the assistance of an interpreter
where necessary, communication of the file on the basis of which the contested
decision has been taken and the possibility of requesting officially appointed legal
counsel, in order to guarantee the rights of the defence.

316

The implementing circular requires the form used for service of the depor-
tation order to state the conditions for appeal by the person concerned and to be
written in several languages.

The order cannot be enforced within the twenty-four hours following service
or, in the case of an appeal to the Administrative Court, before that court has
given its decision, no penalty attaching to failure to decide the appeal within the
forty-eight hour limit.

Lastly, the judgment of the president of the Administrative Court may be
contested by means of an appeal to the president of the Litigation Division of the
Conseil d'Etat, such appeal not having suspensive effect.

With regard to the scope of supervision, the Government point out that it
covers firstly the principle of the expulsion measure itself and then the choice of
the country to which the person concerned is to be sent

On the question of the expulsion measure itself, the Government point out
that, according to the case-law of the Conseil d'Etat, the administrative judge
must check that the measure envisaged is not likely to have exceptionally serious
consequences for the personal or family situation of the person concerned and is
also compatible with the Convention, in particular.

The Government further point out that the Conseil d'Etat has established a
clear distinction between the expulsion measure and the choice of the country to
which the person concerned is to be sent. They maintain that the decision speci-
fying the country of destination can also in itself give grounds for complaint and
supervision by the administrative judge, this appeal being subject to the same
conditions as an appeal against the deportation order.

This extensive supervision covers not only procedural irregularities, errors of
law, suppression o( evidence and factual inaccuracy but also the assessment of the
facts, for example the alleged impossibility of returning to one's country of origin

The applicants note that aliens are normally deported to their country of
origin They point out that they are unlawfully resident in France and run the risk
at any moment of being arrested and served with a deportation order. In the
absence of any undertaking by the authorities of the respondent State not to issue
such an order or not to send the applicants to Sri Lanka, deportation of the latter
to Sri Lanka must be regarded as imminent, particularly because, according to
Article 26 bis of the 1945 Order, a deportation order is immediately enforceable
by the authorities

317

With regard to the remedy with suspensive effect provided for in Article 22
bis of the Order of 2 November 1945, the applicants maintain that this is not an
effective remedy They note in this connection the shortness of the period allowed
for lodging an appeal, the exceptional nature of the procedure and the fact that
the measure contested by means of this appeal, i e the deportation order, does not
mention the country to which the person concerned is (o be sent. Consequenlly,
the Administrative Court cannot examine the complaints of the person concerned
relating to his deportation to a specified country, nor therefore the violation of
Article 3 of the Convention.

The Commission recalls that in interpreting the Convention "regard must be
had to its special character as a treaty for the collective enforcement of human
rights and fundamental freedoms.

Thus, the object and purpose of the Convention as an instrument for the
protection of individual human beings require that its provisions be interpreted
and applied so as to make its safeguards practical and effective" (Eur. Court H R,
Soering judgment of 7 July 1989. Series A no. 161, p. 34, para 87) This conside-
ration is equally valid in respect of the provision contained in Article 25 para 1 of
the Convention concerning the system of individual petitions (cf. Soering
\ United Kingdom, Comm Report 19.1.89, para. 109 . Eur Court H R., loc. ul,
p. 58). In particular, the conditions of this provision are satisfied not only when
an applicant claims that he has suffered a violation but also when he claims that
he will suffer an irreversible violation. In the context of a measure which might
expose a person to treatment contrary to Article 3, the applicant must prove, to
establish his status as "victim" within the meaning of Article 25 para 1 of the
Convention, that he is exposed, through a measure which might be taken
imminently by the authorities of the State complained of, to the serious danger of
such treatment (cf No 10479/83, Dec 12 3 84, D R 37 p 158)

In this case the Commission notes that the applicants are unlawfully resident
in France and that they maintain they may be arrested at any moment with a view
to their repatriation to Sn Lanka. The question whether this is a real risk or
whether, on the contrary, such a rwk. can arise only after dismissal of the appeal
provided for in Article 22 bis of the Order of 2 November 1945 raises complex
questions of fact and of law which the Commission considers to be closely bound
up with the merits of the applications

Consequenlly, the Commission takes the view that at this stage in the exami-
nation of the applications it cannot find that the applicants do not have the status
of "victim"

318

4. With regard to the risk of treatment contrary to Article 3 of the Convention
if the applicants are sent back to Sri Lanka, the Government point out, referring
to the decisions taken by the OFPRA and the Refugee Appeals Board, that the
evidence adduced by the applicants does not constitute conclusive proof of a risk
of persecution. They note in particular that none of the documents produced
relate to facts specifically concerning the applicants themselves. There is no
evidence in the file to show that they personally would be subjected to treatment
contrary to Article 3 of the Convention if they had to return to Sri Lanka. The
Government also draw attention to the stereotyped nature of the applicants'
accounts. Although a risk of maltreatment cannot be totally excluded, it is never-
theless an acceptable risk.

The applicants emphasise the fact that the members of their families have
been harshly persecuted and that these acts of persecution have led in some cases
to their deaths. In addition to the ill-treatment they have suffered themselves, the
applicants draw attention to the everyday reality of the attacks against the Tamil
community in Sri Lanka. They refer to the practice of the United Nations High
Commissioner for Refugees and point out that their fears are based not only on
their personal experience but also on the fate of their relatives, friends and other
members of the racial or social group to which they belong. Lastly, the applicants
refer to the reports drawn up by Amnesty International, France Terre d'Asile, the
French National Assembly and the European Parliament, which describe the
situation in Sri Lanka. They maintain that their fears are well-founded and that
their expulsion to Sri Lanka would violate Article 3 of the Convention.

The Commission has made a preliminary examination of the applications. It
notes that they raise complex questions of fact and of law which necessitate an
examination of the merits and can thus not be regarded as manifestly ill-founded.
They must therefore be declared admissible, no other ground of inadmissibility
having been noted.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the
merits.

319