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You are here: BAILII >> Databases >> European Court of Human Rights >> VIJAYANATHAN AND PUSPARAJAH v. FRANCE - 17550/90;17825/91 [1992] ECHR 54 (27 August 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/54.html
Cite as: (1993) 15 EHRR 62, 15 EHRR 62, [1992] ECHR 54
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In the case of Vijayanathan and Pusparajah v. France*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of
Court, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr Thór Vilhjálmsson,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr J. De Meyer,
Mr J.M. Morenilla,
Mr L. Wildhaber,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 29 February and
26 June 1992,
Delivers the following judgment, which was adopted on
the last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 75/1991/327/399-400. The first number
is the case's position on the list of cases referred to the
Court in the relevant year (second number). The last two
numbers indicate the case's position on the list of cases
referred to the Court since its creation and on the list of
the corresponding originating applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which
came into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 11 September
1991, within the three-month period laid down by Article 32
para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.
It originated in two applications (nos. 17550/90 and 17825/91)
against France lodged with the Commission under Article 25
(art. 25) by Mr Ampalam Vijayanathan and Mr Nagalingam
Pusparajah, two Sri Lankan citizens, on 10 December 1990 and
10 January 1991. They were referred to by the initials "V."
and "P." during the proceedings before the Commission, but
subsequently consented to their identity being disclosed.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby France
recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46). The object of the request was to
obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations
under Article 3 (art. 3).
2. In a letter of 12 September 1991 the Registrar reminded
the respondent Government ("the Government") that under
Rule 36 para. 2 of the Rules of Court the maintenance of the
interim measure indicated by the Commission under Rule 36 of
its Rules of Procedure and last renewed on 4 September 1991
(see paragraph 40 below) remained recommended.
3. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants
stated that they wished to take part in the proceedings and
designated the lawyer who would represent them (Rule 30).
4. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal,
the President of the Court (Rule 21 para. 3 (b)). On
28 September 1991, in the presence of the Registrar,
Mr Cremona, the Vice-President of the Court, drew by lot the
names of the other seven members, namely Mr J. Cremona,
Mr Thór Vilhjálmsson, Mr F. Matscher, Mr R. Macdonald,
Mr J. De Meyer, Mr J.M. Morenilla and Mr L. Wildhaber
(Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43).
5. Mr Ryssdal assumed the office of President of the
Chamber (Rule 21 para. 5) and, through the Registrar,
consulted the Agent of the Government, the Delegate of the
Commission and the lawyer for the applicants on the
organisation of the procedure (Rule 37 para. 1 and Rule 38).
Pursuant to the order made in consequence, the Registrar
received the applicants' memorial and the Government's
memorial on 20 December 1991. On 23 January 1992 the
Secretary to the Commission informed him that the Delegate
would submit his observations at the hearing.
6. In accordance with the President's decision, the
hearing took place in public in the Human Rights Building,
Strasbourg, on 25 February 1992. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J.-P. Puissochet, Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mr B. Gain, Head of the Human Rights Section,
Department of Legal Affairs,
Ministry of Foreign Affairs,
Mr R. Riera, Head of the Litigation
and Legal Affairs Section,
Department of Public Freedoms and
Legal Affairs, Ministry of the Interior, Counsel;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicants
Mr G. Piquois, avocat, Counsel,
Mr M. Laurain, avocat, Adviser.
The Court heard addresses by Mr Puissochet for the
Government, Mr Danelius for the Commission and Mr Piquois and
Mr Laurain for the applicants, as well as their replies to its
question.
7. Before the hearing and on various dates from 20 April
to 29 July 1992 the Government and the lawyer for the
applicants filed a number of documents, with the leave or at
the request of the Court (Rule 37 para. 1, second
sub-paragraph).
AS TO THE FACTS
I. The particular circumstances of the case
A. MR VIJAYANATHAN
8. The first applicant, Mr Ampalam Vijayanathan, is a
Sri Lankan citizen of Tamil ethnic origin. He left Sri Lanka
on 27 November 1989 and entered France clandestinely in
December, using a false passport. On 27 February 1990 he
submitted to the French Office for the Protection of Refugees
and Stateless Persons (Office français de protection des
réfugiés et apatrides, "OFPRA") a request for recognition of
his refugee status. In accordance with a circular of 17 May
1985 concerning asylum seekers, he obtained provisional leave
to reside in France "with a view to dealings with the OFPRA",
and this was renewed on several occasions.
On 18 July 1990 the director of the OFPRA refused the
request, on the grounds that Mr Vijayanathan's statements were
"vague in places" and not "such as to establish the truth of
the facts alleged or prove that his personal fears of
persecution were well-founded for the purposes of the Geneva
Convention" of 28 July 1951 relating to the Status of Refugees
("the 1951 Convention").
9. On 28 August 1990 Mr Vijayanathan appealed against this
decision to the Refugee Appeals Board (Commission des recours
des réfugiés, "the Appeals Board"), which on 30 November 1990
dismissed the appeal for the following reasons:
"... By virtue of paragraph A, sub-paragraph 2, of
Article 1 of the Geneva Convention of 28 July 1951 and
the Protocol signed in New York on 31 January 1967, a
refugee is considered to be any person who, owing to a
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, unwilling to avail himself of the protection
of that country;
... In order to claim the benefit of the above
provisions, Mr Vijayanathan, who is of Sri Lankan
nationality, maintains that because of his Tamil origin
he defended the cause of his people and was arrested on
11 May 1983 for distributing leaflets; that between
1984 and 1988 he was searched for three times and
arrested twice, following attacks on Sri Lankan and
Indian military camps; that because he had taken part
in the election campaign of a candidate of the EROS
movement [Eelam Revolutionary Organisation of
Students], he was arrested on 12 March 1989 by Indian
troops; that following another attack on two members of
the EPRLF [Eelam People's Revolutionary Liberation
Front] he was under suspicion and decided to leave Sri
Lanka; that he fears for his safety and liberty if he
has to return to his country;
... However, the documents in the case-file do not make
it possible to regard the facts alleged as having been
proved or the fears expressed as being well-founded.
The appeal can thus not be upheld."
10. On 10 December 1990 the prefecture of Seine-et-Marne
directed the first applicant to leave French territory within
one month, and informed him that if he failed to comply he
would be liable to expulsion (reconduite à la frontière) or a
prison sentence and fine.
11. Mr Vijayanathan immediately applied to the European
Commission of Human Rights.
He has been unlawfully resident in France since
10 January 1991. He claimed that if returned to Sri Lanka he
would run the risk of treatment which was not compatible with
Article 3 (art. 3) of the Convention. In support of this
claim he produced a number of certificates, which are in the
Court's file of the case.
B. MR PUSPARAJAH
12. The second applicant, Mr Nagalingam Pusparajah, who is
also a Sri Lankan of Tamil origin, entered France
clandestinely in 1989. On 29 December 1989 he submitted a
request for recognition of refugee status to the OFPRA. His
request was rejected on 15 May 1990 for the following reasons:
"Mr Pusparajah has not adduced even prima facie
evidence that his personal case is one of those covered
by Article 1, paragraph A, sub-paragraph 2, of the
Geneva Convention.
The applicant maintains that he was a leading member of
the LTTE movement; that during a search for him carried
out by the Indian army his father was killed in his
place; and that he was eventually found and arrested on
4 May 1989 when on his way to visit his sick mother.
On being released a month later, he decided to leave
the country. However, his declarations do not provide
proof of the facts alleged."
13. He appealed to the Appeals Board on 26 June 1990. His
appeal was dismissed on 25 October 1990, on the grounds that:
"... Pusparajah, who is a Sri Lankan national of Tamil
origin, maintains that his family is being persecuted
in his country and that he himself, a militant member
of the LTTE, saw his home bombed in 1987 and searched
in 1988; and that he cannot return without danger to
his country, where he was imprisoned for a month in
1989, on account of his militant activities;
... However, neither the documents in the case-file nor
the statements made at the public hearing before the
Board make it possible to regard the facts alleged as
established or the fears expressed as well-founded;
and, in particular, the documents produced and
submitted such as a medical certificate issued in Paris
on 2 October 1990 and the statement by a priest dated
17 May 1990 are not sufficient in this respect ..."
14. In a letter of 8 January 1991 to the director of the
OFPRA the second applicant requested that his case be re-
examined. He stated that he had arrived in France in May
1990, that his younger brother had lost his life on
17 November 1990 in fighting between the LTTE and the
Sri Lankan army, and that his mother had been seriously
injured.
15. On 22 January 1991, the Paris Commissioner of Police
(préfet de police) directed him to leave French territory
before 22 February 1991, failing which an order for his
expulsion could be issued.
Mr Pusparajah did not comply.
His case was re-examined, however, in the context of an
application for exceptional leave to remain submitted in July
1991. On 10 October the Commissioner of Police dismissed that
application on the grounds that Mr Pusparajah's lawful stay
had been of very short duration and that he had not shown that
he had had stable employment since entering France or that he
had sufficient family ties. He again directed him to leave
French territory before 10 November 1991, on pain of the
penalties provided for in section 19 of Order no. 45-2658 of 2
November 1945 as amended (see paragraph 23 below).
16. Mr Pusparajah claimed that if returned to Sri Lanka he
would be exposed to treatment which was not compatible with
Article 3 (art. 3) of the Convention. In support of this
claim he produced a number of certificates, which are in the
Court's file of the case.
II. Relevant domestic law
A. Requests for recognition of refugee status
17. In France, recognition of refugee status as defined by
the 1951 Convention and attribution of such status are the
exclusive responsibility of the OFPRA and the Appeals Board,
which were set up by Law no. 52-893 of 25 July 1952.
18. According to a circular from the Prime Minister, dated
17 May 1985 and relating to asylum seekers, the provisional
admission to France of aliens who are seeking asylum requires
the issue of two documents in turn: a provisional residence
authorisation "with a view to dealings with the OFPRA.", valid
for one month, and a receipt bearing the words "Has requested
asylum", issued for a period of three months and renewable,
and equivalent to a provisional residence and work permit.
If the OFPRA refuses to grant refugee status, it
notifies the person concerned of its decision and sends a copy
to the relevant prefecture. The decision is regarded as
definitive if the alien does not appeal to the Appeals Board
within one month from the date when he actually received
notification (ministerial circular of 5 August 1987).
19. The Appeals Board is presided over by a judge from the
Conseil d'Etat and consists of a representative of the OFPRA's
board of management and the French delegate of the Office of
the United Nations High Commissioner for Refugees ("the
UNHCR").
A refusal by the Board can be appealed against to the
Conseil d'Etat. The appeal has no suspensive effect, in that
it does not provide grounds for extension of the provisional
residence documents (Pizarro Cid judgment of 12 March 1990,
unreported). Requests to the OFPRA to re-examine the case and
appeals against the rejection of such requests are likewise no
grounds for the issue or extension of the receipt marked "Has
requested asylum" (circular of 5 August 1987).
B. Directions to leave French territory
20. Where a request for recognition of refugee status has
been definitively rejected, the circular of 17 May 1985
requires prefects of departments and the Paris Commissioner of
Police, when the person concerned attends at the prefecture,
to communicate to him a direction to leave French territory
within one month, on pain of court proceedings. After fifteen
days he must report to the proper authorities and inform them
of the arrangements he has made for organising his departure;
the time-limit can be extended if the alien puts forward valid
reasons and shows that he has made real preparations for
departure, in particular a definite date for departure. On
expiry of the last provisional residence authorisation, the
relevant authorities must refer to the public prosecutor the
offence defined in section 19 of the Order of 2 November 1945
as amended (see paragraph 23 below).
If, however, it appears that there are particular
circumstances which would expose the person concerned to
serious risks if he returned to his country of origin, the
authorities must immediately refer the case for a decision to
the Minister of the Interior, by sending him a telegram giving
precise details of the person concerned and the facts alleged.
21. In this respect a circular of 5 August 1987 of the
Minister of the Interior restates the obligation to refer the
matter to the central authorities in cases where there is an
objection to repatriation based on the situation in the
country of origin and the alien fears that he will be exposed
there to serious risks to his safety or liberty. The decision
is taken as soon as information has been received from the
French delegation of the UNHCR. The person concerned is then
granted a provisional residence authorisation, valid for one
month and renewable, during which period he must be requested
to find a third country which might be prepared to receive
him. If there is a risk of flight, the authorities can ask
the Minister of the Interior to issue a compulsory residence
order (section 28 of the Order of 2 November 1945).
22. A direction to leave French territory is not served on
the alien if he submits or manifests the intention of
submitting a request for exceptional admission on the grounds
of risks to his safety in the event of his return to his
country of origin. In such cases the prefect takes the
decision. If no such request is made, the alien is informed
of the possibility of submitting written observations on his
possible expulsion (in accordance with section 8 of the Decree
of 28 November 1983 on relations between the authorities and
persons dealing with them), and of the possibility of
appealing for the case to be reconsidered, appealing to a
higher authority or appealing to the court within two months
from service of the direction. However, such an appeal does
not have suspensive effect and, on expiry of the period
granted to him to prepare his departure, the person concerned
becomes liable to an administrative measure of expulsion or a
fine and imprisonment for unlawful residence (sections 19 and
22 of the Order of 2 November 1945 and circular of 5 June 1990
of the Minister of the Interior).
C. Expulsion (reconduite à la frontière)
23. The Order of 2 November 1945 relating to the conditions
of entry and residence of aliens in France, as amended by Law
no. 86-1025 of 9 September 1986, Law no. 89-548 of
2 August 1989 and Law no. 90-34 of 10 January 1990, provides
that:
Section 19
"An alien who enters or resides in France without
complying with the provisions of sections 5 and 6 shall
be punished by imprisonment for at least one month but
not more than one year and a fine of at least 2,000 but
not more than 20,000 francs.
The court may also prohibit the person convicted from
entering or residing on French territory for a period
not exceeding three years. The prohibition
automatically entails the expulsion of the convicted
person, where appropriate after his prison sentence has
been served."
Section 22
"The State's representative in a department, or in
Paris the Commissioner of Police, may issue a reasoned
decision ordering an alien's expulsion in the following
cases:
1. If the alien cannot prove that he entered
French territory lawfully, unless his position
has been regularised subsequent to his entry;
2. If the alien has remained on French territory
on expiry of a period of three months from his
entry into France without holding a lawfully
issued first residence permit;
3. If an alien who has been refused issue or
renewal of a temporary residence permit has
remained on French territory for more than one
month from the date of notification of the
refusal;
4. If the alien has been convicted by a final
judgment of counterfeiting, forgery, residence
under an assumed name or non-possession of a
residence permit. Once the alien has been
served with the expulsion order, he shall
immediately be permitted to inform a lawyer, his
consulate or a person of his choice."
Section 26 bis
"An order for the deportation of an alien shall be
automatically enforceable by the authorities. The same
applies to an expulsion order which has not been
challenged before the president of the administrative
court or his deputy within the period laid down in
section 22 bis of the present Order or which has not
been set aside at first instance or on appeal under the
conditions laid down in that section."
Section 28
"An alien subject to a deportation order or who is to
be expelled, who shows that he is unable to leave
French territory by proving that he can neither return
to his country of origin nor enter any other country,
may by derogation from section 35 bis be compelled by
an order of the Minister of the Interior to reside in a
specified place where he must report periodically to
the police or gendarmerie."
Section 35 bis
"An alien who is to be expelled and is unable to leave
French territory immediately may be detained, if this
is absolutely necessary, in premises other than penal
institutions by a reasoned written decision of a
prefect for the time strictly necessary to arrange his
departure.
The public prosecutor shall be informed of this
immediately.
The alien shall immediately be informed of his rights
through an interpreter if he does not understand
French.
On expiry of a period of twenty-four hours from the
detention decision, the case shall be referred to the
president of the tribunal de grande instance or a judge
designated by him, who shall then give a ruling by
means of an order, after hearing the person concerned
in the presence of his legal representative, if any, or
after having duly informed the said legal
representative, on one or more of the surveillance and
supervision measures necessary to ensure his departure
listed below:
Surrender to the police or gendarmerie of all
identity documents, in particular his passport, in
exchange for a receipt serving as proof of identity;
A compulsory residence order;
In exceptional cases, extension of detention in
the premises mentioned in the first sub-paragraph of
this section.
The order extending detention shall run from
expiry of the period of twenty-four hours laid down in
this sub-paragraph.
Application of these measures shall end not
later than the expiry of a period of six days from the
issue of the order mentioned above."
24. These various provisions have not been applied, or at
least have not yet been applied, in the cases of
Mr Vijayanathan and Mr Pusparajah.
25. The circular of the Minister of the Interior dated
5 June 1990 requires the police to serve the prefectoral
expulsion order on the person concerned.
An order which it has not been possible to enforce is
recorded in the list of wanted persons.
Neither the model forms for service of such orders,
annexed to the various circulars, nor the circulars themselves
require the alien to be notified of the country of destination
when he is served with the expulsion order.
D. Appeals against expulsion orders
26. Section 22 bis of the Order of 2 November 1945 (as
amended by Law no. 90-34 of 10 January 1990) provides that:
"An alien who is the subject of a prefectoral expulsion
order may within twenty-four hours from service thereof
apply to the president of the administrative court for
the order to be set aside.
The president or his deputy shall take a decision
within a period of forty-eight hours from such
application. He may proceed to the seat of the
ordinary court nearest to the place of detention of an
alien who is being detained pursuant to section 35 bis
of this Order.
I. The alien may ask the president of the court or his
deputy for the assistance of an interpreter and to be
shown the case-file containing the documents on the
basis of which the challenged decision has been taken.
The hearing shall be in public. It shall take place
without submissions from the Government Commissioner
(commissaire du Gouvernement) and in the presence of
the alien, unless the latter has been duly summoned and
fails to attend. The alien shall be assisted by his
legal representative if he has one. He may ask the
president or his deputy for counsel to be appointed for
him.
II. The provisions of section 35 bis of this Order may
be applied as soon as the expulsion order has been
issued.
That order may not be enforced until the expiry of a
period of twenty-four hours from its service or, if the
case has been referred to the president of the
administrative court or his deputy, until he has taken
his decision.
III. If the expulsion order is set aside, the
surveillance measures provided for in section 35 bis
shall be discontinued immediately and the alien shall
be issued with a provisional residence authorisation
until the prefect has taken a fresh decision on the
matter."
27. Proceedings in respect of prefectoral expulsion orders
are governed by Decree no. 90-93 of 25 January 1990 inserting
additional provisions after Article R.241 of the Code of
Administrative Courts and Administrative Courts of Appeal, and
providing inter alia:
Article R.241-1
"The following provisions only shall apply to the
submission, investigation and adjudication of
applications for the setting aside of prefectoral
orders for the expulsion of foreign nationals."
Article R.241-2
"Decisions on applications brought against prefectoral
orders for the expulsion of aliens shall be taken by
the president of the administrative court or a judge
appointed by him, without submissions from the
Government Commissioner."
Article R.241-3
"The administrative court with territorial jurisdiction
shall be the court in whose district is the office of
the prefect who has issued the expulsion order."
Article R.241-4
"The application must include the name and address of
the applicant and a statement of the facts and the
grounds on which setting aside is requested. It shall
be presented in a single copy."
Article R.241-5
"The applications mentioned in Article R.241-1 may be
submitted without representation by counsel.
Once his application has been lodged, the alien may
request counsel to be appointed for him; the president
of the administrative court shall immediately give
notice thereof to the president of the bar association
for the tribunal de grande instance within whose
district the hearing is to be held. The president of
the bar association shall make the appointment without
delay."
Article R.241-6
"The application must be registered with the registry
of the administrative court within twenty-four hours
from service of the prefectoral expulsion order.
However, if at the time of service of the order the
alien is being detained by the administrative
authorities, his application may be validly lodged,
within the same twenty-four hour period, either with
the said administrative authorities or with the
registry of the court before which he appears for the
extension of his administrative detention."
Article R.241-9
"The period of forty-eight hours within which the
president of the administrative court or his deputy
must take a decision shall run from the time when the
application is registered with the registry of the
court."
Article R.241-11
"If an alien who does not speak French sufficiently
well so requests, the president shall appoint an
interpreter ... . Such a request may be made as soon
as the application to the court is lodged."
Article R.241-12
"The parties may submit pleadings or written
observations up to the moment when the case is called."
Article R.241-13
"After the report presented by the president of the
administrative court or his deputy, the parties may
submit oral observations in person or through counsel.
They may also produce documents in support of their
pleadings. If these documents provide new evidence,
the judge shall ask the other party to examine them and
submit his observations thereon to him at the hearing."
Article R.241-14
"The decision shall be pronounced at the hearing."
Article R.241-17
"The operative provisions of the decision, together
with the enforcement formula provided for in Article
R.209, shall be served there and then on the parties
present at the hearing, who shall immediately
acknowledge receipt thereof.
If it has not been served there and then, the decision
shall be served without delay and by any means on the
parties, who shall acknowledge receipt thereof.
Service shall include notification of the possibility
of appealing and the time-limit within which an appeal
can be brought."
Article R.241-19
"The prefect who signed the challenged order and the
alien may appeal against the decision to the president
of the Judicial Division of the Conseil d'Etat or a
judge of the Conseil d'Etat appointed by him."
Article R.241-20
"The period for appealing shall be one month. It shall
run against any party to the proceedings from the date
on which service was made on that party under the
conditions laid down in Article R.241-17, second sub-
paragraph."
28. It should be noted that an appeal to the Conseil d'Etat
has no suspensive effect, but the appellant may request the
president of the Judicial Division to order a stay of
execution of the order (Conseil d'Etat, Engin judgment of
29 June 1990, Recueil Lebon 1990, p. 190). Such a request
becomes devoid of purpose, however, if the order has been
enforced before the Conseil d'Etat gives judgment (Conseil
d'Etat, Hablami judgment of 29 June 1990, Recueil Lebon 1990,
p. 191).
29. The ministerial circulars of 25 January and 5 June 1990
state that service of a prefectoral expulsion order shall
mention the possibility of bringing the appeal provided for in
section 22 bis of the Order of 2 November 1945 and the rights
which appellants have in the context of such proceedings.
Forms of service have been drawn up in several languages, in
order to put aliens in a position to exercise their rights
effectively.
30. Finally, in its Ouedjedi judgment of 17 December 1990
(Recueil Lebon 1990, p. 362), the Conseil d'Etat distinguished
between the decision to remove an alien from French territory
and the decision as to his country of destination:
"... The argument based on the fact that Mr Ouedjedi
would be seriously at risk if he had to return to
Algeria cannot be validly relied on in support of an
appeal against the impugned [expulsion] order which
does not specify the country to which the appellant is
to be expelled;
...
... In a separate decision, served on Mr Ouedjedi at
the same time as that ordering his detention, the
Commissioner of Police decided that the country to
which he was to be expelled would be Algeria; ...
having regard to the arguments in his application, the
appellant must be regarded as having also made
submissions for the setting aside of that decision,
which was separate from the expulsion order; ... the
judgment appealed against must be quashed for failure
to reply to those submissions, and this aspect of the
case must be examined;
... Although Mr Ouedjedi, in asking for that decision
to be set aside, maintains without giving any further
details that his return to Algeria would place him at
serious risk because of his religious beliefs, he has
not shown any particular circumstance such as to
constitute a legal impediment to his expulsion to his
country of origin; ... he is therefore unable to
maintain that the decision contained in the record of
service of 20 July 1990 was ultra vires and invalid;"
E. The circular of 25 October 1991
31. A ministerial circular of 25 October 1991, specifically
intended to take into account the recent case-law of the
Conseil d'Etat and the European Commission of Human Rights and
to ensure compliance with Articles 3 and 8 (art. 3, art. 8) of
the Convention, strengthened the system for the protection of
aliens who were the subject of measures of removal from French
territory. Its aim was to improve both the supply of
information to them before such measures were taken and also
the relevant administrative procedures.
32. A direction to leave French territory, served on an
alien after the right of residence has been refused or after
his request for granting of refugee status has been
definitively rejected, must now inform him that he may leave
voluntarily for the country of his choice; if he does not do
so, the expulsion measure will normally be enforced by sending
him to the country of which he is a national or which has
issued him with a currently valid travel document, or to any
other country to which he proves that he may lawfully be
admitted. In addition, prefects must notify the alien that he
has the possibility of submitting, within a period of fifteen
days from service, written observations with reference to the
risks he would be exposed to if he were to return to his
country of origin.
The circular states that the choice of country of
destination is a decision which is distinct from the
expulsion, and must in no way affect the lawfulness of the
expulsion order. It provides that a note of it must be
indicated on the record of the order. Such a decision can be
the subject of an appeal, made parallel to the application for
the order to be set aside; it will be examined under the same
conditions and within the same time-limits, and with the
benefit of the safeguards which follow from the suspensive
nature of the proceedings.
If the administrative court finds that the order is
lawful but annuls the decision as to the country of
destination, the prefect must immediately refer the matter to
the Minister of the Interior, so that the minister can make a
compulsory residence order against the person concerned for a
period of one month, generally not renewable, under section 28
of the Order of 2 November 1945 (see paragraph 23 above), in
order to give him an opportunity of finding a third country
which will admit him.
F. Exceptional leave to remain
33. A circular of the Minister of Social Affairs and the
Minister of the Interior dated 25 September 1991 lays down the
conditions for examination of applications for exceptional
leave to remain submitted by unsuccessful asylum seekers,
including Sri Lankans of Tamil origin. It instructs prefects
to invite the alien to submit to them in writing, in French,
the arguments put forward by him alleging that his safety or
liberty would be at risk if he returned to his country of
origin. These arguments must be precise, detailed and
different from those put forward before the OFPRA or the
Appeals Board, so as to allow the OFPRA to re-examine the
case. Finally, if the alien shows that in the event of return
he would risk being subjected to punishment or treatment
contrary to Article 3 (art. 3) of the Convention, or if the
arguments adduced appear to be serious and to deserve detailed
consideration by the central authorities, prefects are to send
the Minister of the Interior a highly detailed report on the
person in question and the arguments relied on.
The Minister of the Interior then examines the case in
conjunction with the Minister of Foreign Affairs (who may in
some cases consult the French diplomatic representatives in
the country of origin) and, if appropriate, the UNHCR delegate
for France. As stated in the circular of 5 August 1987, the
reason militating against the return to his country of origin
of an asylum seeker whose request has been dismissed may be
connected with the general situation in that country - armed
conflict, civil war, or state of emergency, bringing about the
suspension of air links, etc.
In such circumstances, measures of removal to the
country in question may be provisionally suspended.
G. Practice of the French authorities with respect to
Sri Lankan asylum seekers
34. According to information provided by the Government,
the OFPRA examines the cases of asylum seekers from Sri Lanka
on the basis of a number of criteria:
- geographical origin of the asylum seeker, which makes
it possible to determine the seriousness of the alleged fears,
according to the movement over time of the scene of fighting;
- political commitment of the person concerned, placing
him in opposition to those currently in power;
- membership of certain categories, making the
authorities suspicious of the asylum seeker.
35. In addition, the OFPRA works together with the Ministry
of the Interior and the Ministry of Foreign Affairs in order
to assess whether persons in fear of persecution because of
rivalries between Tamil separatist groups run a real risk from
the point of view of Article 3 (art. 3) of the Convention.
This assessment takes place on the basis of information
received not only from Government representatives (the French
Embassy in Colombo) but also from outside sources
(publications, the media, expert reports, analyses, etc.).
The OFPRA is also in contact with non-governmental
organisations (Médecins sans frontières) who are present on
the ground and in appropriate cases supply invaluable details
and testimony on the development of the local situation. To
this may be added the experience built up by the French
authorities responsible for processing requests for asylum.
36. According to the Government, the OFPRA and the Appeals
Board took 4,760 final decisions in 1990 on requests for
asylum by Sri Lankan nationals, 2,617 of whom were granted
refugee status. The applicants disputed this before the
Commission.
The Government also pointed out that an expulsion order
could not be made against such an asylum seeker unless the
central authorities had first been consulted.
37. In 1990 only 83 of the 2,400 Sri Lankans whose requests
for asylum had been unsuccessful had such orders issued
against them. Moreover, 46% of persons whose situation had
been regularised within the fifteen months to 1 June 1991 in
the Paris region were Sri Lankans.
38. The applicants for their part produced a copy of a
decision of the Paris Administrative Court of 4 May 1991,
dismissing an appeal which had been brought both against an
expulsion order and against the prefect's decision to return
the appellant to his country of origin. The court found that:
"... neither the content of the case-file nor the
evidence adduced at the hearing is such as to show that
the decision to repatriate Mr Neil Nimalaraj to Sri
Lanka, his country of origin, would contravene the
provisions of Article 3 (art. 3) of the European
Convention on Human Rights and Articles 31 and 33 of
the Geneva Convention of 28 July 1951; further, the
argument based on a violation of Article 3 of the New
York Convention on the Prevention of Torture is
inadmissible, for want of sufficient information to
assess the scope of that argument."
PROCEEDINGS BEFORE THE COMMISSION
39. Mr Vijayanathan and Mr Pusparajah applied to the
Commission on 10 December 1990 and 10 January 1991
respectively (applications nos. 17550/90 and 17825/91). They
alleged that their repatriation to Sri Lanka, which was
imminent following the rejection of their requests for the
granting of refugee status in France, would expose them to
persecution and treatment prohibited by Article 3 (art. 3) of
the Convention.
40. On 14 December 1990 and 20 February 1991 the Commission
indicated to the French Government, under Rule 36 of the
Commission's Rules of Procedure, that it would be desirable in
the interest of the parties and to ensure the proper conduct
of the proceedings to refrain from deporting the applicants to
Sri Lanka before 8 March 1991. This indication was renewed on
various occasions until the referral of the case to the Court.
41. On 3 June 1991 the Commission ordered the applications
to be joined (Rule 29 of its Rules of Procedure). It declared
them admissible on the following day.
In its report of 5 September 1991 (made under Article
31) (art. 31), it expressed the opinion by nine votes to six
that there had not been a violation of Article 3 (art. 3).
The full text of the Commission's opinion and of the five
separate opinions contained in the report is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume
241-B of Series A of the Publications of the Court), but a
copy of the Commission's report is available from the
registry.
_______________
THE GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
42. In their memorial the Government asked the Court:
"1. As to locus standi: to hold that the applicants are
not victims within the meaning of Article 25 (art. 25)
of the Convention;
2. As to admissibility: to uphold the objection that
domestic remedies have not been exhausted;
3. As to the merits: to hold that Mr Vijayanathan and
Mr Pusparajah have not shown substantial grounds for
claiming that they run a real risk of being subjected
to treatment contrary to Article 3 (art. 3) of the
Convention, and consequently that there has not been
... a violation of those provisions."
AS TO THE LAW
THE GOVERNMENT'S PRELIMINARY OBJECTIONS
43. The Government's principal arguments, as before the
Commission, were that Mr Vijayanathan and Mr Pusparajah were
not "victims" and had not exhausted domestic remedies.
44. They argued that the applicants could not become
victims until the end of a process which had nothing automatic
about it, as was shown by the limited number of expulsions of
Sri Lankans of Tamil origin (83 in 1990) compared with the
number (2,400) of rejections of requests for asylum (see
paragraph 37 above). No measure for their removal had been
taken and their repatriation, which would be subject to the
strict control of the administrative court, was still
hypothetical; even if such a measure were to be taken, the
circular of 25 October 1991 (see paragraph 31 above), which
had been adopted precisely in the light of recent decisions of
the Conseil d'Etat and the European Commission of Human
Rights, removed any ambiguity as to the effectiveness of the
system for protection of unsuccessful asylum seekers.
Finally, the possible return of the applicants to their own
country would in the present circumstances not be arbitrary or
unreasonable, in view of the assessment of the general
situation in Sri Lanka and having regard to the analyses of
the individual cases.
45. The Commission considered that the applicants could not
be regarded as faced with an imminent decision of removal to
Sri Lanka. The risk of such a decision being adopted and
irreversibly enforced was diminished by the existence of the
appeal with suspensive effect provided for in section 22 bis
of the Order of 2 November 1945 as amended (see paragraph 26
above). Such an appeal admittedly had deficiencies - inter
alia in the event of service of the expulsion order being
followed by notification of the country of destination - but
there was no reason to believe that the applicants would not
be in a position to raise effectively before the
administrative court arguments based on the risks of ill-
treatment in Sri Lanka.
46. The Court notes to begin with the difference between
the present case and the cases of Soering v. the United
Kingdom and Vilvarajah and Others v. the United Kingdom
(judgments of 7 July 1989 and 30 October 1991, Series A
nos. 161 and 215). In the former the Home Secretary had
already signed the warrant for Mr Soering's extradition to the
United States; in the latter the deportation of the applicants
to Sri Lanka had taken place during the proceedings before the
Commission. It should also be noted that despite the
direction to leave French territory (see paragraphs 10 and 15
above), not enforceable in itself, and the rejection of the
application for exceptional leave to remain brought by Mr
Pusparajah (see paragraph 15 above), no expulsion order has
been made with respect to the applicants. If the Commissioner
of Police were to decide that they should be removed, the
appeal provided for in section 22 bis would be open to them,
with all its attendant safeguards; if they were to attempt to
bring such an appeal at present, the courts appealed to would
probably declare it inadmissible as being premature or devoid
of purpose.
In short, the objection is well-founded.
Mr Vijayanathan and Mr Pusparajah cannot, as matters stand,
claim "to be the victim[s] of a violation" within the meaning
of Article 25 para. 1 (art. 25-1) of the Convention.
47. In view of this conclusion, it is not necessary to
examine the Government's other submissions.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that it is unable to consider the merits of the
case.
Done in English and in French and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
27 August 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar