European Court of Human Rights

SECTION FIVE

CASE OF M.K. AND OTHERS v. FRANCE

(Applications Nos 34349/18, 34638/18 and 35047/18)

 

 

 

STOP

Art 6 § 1 (civil) • Access to a court • Refusal by the administrative authorities to execute interim orders ordering the State to provide urgent accommodation for asylum seekers and their children • Art 6 § 1 applicable to the granting and refusal of a place in emergency accommodation constituting a civil right • Complete passivity of the administrative authorities despite the fact that the orders were the result of an emergency procedure • Care of applicants only following interim measures pronounced by the European Court

 

STRASBOURG

December 8, 2022

 

This judgment will become final under the conditions laid down in Article 44 § 2 of the Convention. It may undergo retouching of forme.

In M.K. and Others v. France

 

The European Court of Human Rights (Fifth Section), sitting in a Chamber composed of:

 

 

Considering:

 

the applications^(Nos. 34349/18, 34638/18 and 35047/18) directed against the French Republic and brought before the Court by Congolese nationals (M.K. and others and A.D. and others) ("the applicants") on the dates indicated in the annexed table,

 

the decision to bring to the attention of the French Government ("the Government") complaints concerning Articles 3, 6 § 1 and 13 of the Convention,

 

the decision to put follow-up questions to the parties,

 

all the observations submitted by the respondent Government and those submitted in reply by the applicants,

the observations of the Defender of Rights that the president of the section had authorized to intervene as a third party,

 

the provisional measures indicated to the respondent Government pursuant to Rule 39 of the Regulations,

 

the decision not to disclose the identity of the applicants,

 

Having deliberated in private on 15 November 2022,

 

Renders the following judgment, adopted on that date:

INTRODUCTION

1. The present cases concern asylum seekers without accommodation at the material time. At their request, the interim relief judge of the Administrative Court ordered the State to shelter them as emergency accommodation. Relying on Article 6 § 1 of the Convention, the applicants complained that the orders of the judge hearing the application for interim measures had not been complied with by the administration. Invoking Article 3 of the Convention, they claim to have been forced to live on the streets in inhuman and degrading conditions for several weeks. Under Article 13 of the Convention, they also claim that their right to an effective remedy has been infringed.

IN FACT

2. Detailed information concerning the applicants, represented by Ms Saskia Ducos-Mortreuil and eligible for legal aid, is given in the annexed table. The French Government ("the Government") was represented by its Agent, D. Colas, Director of Legal Affairs at the Ministry for Europe and Foreign Affairs.

I. APPLICATION^NO. 34349/18 (M.K. AND OTHERS)

 

3. The first applicant, born in 1983, is a Congolese national. She states that she fled her country of origin accompanied by her three daughters, aged 3, 5 and 14 (the other three applicants). The first applicant alleges that her 5-year-old daughter was raped before she arrived in France.

 

4. The applicants entered French territory on 29 May 2018.

 

5. On^{1 June} 2018 the first applicant applied for asylum to the Haute-Garonne prefecture, which issued her with a certificate of application for asylum known as the 'Dublin procedure', the examination of her application being a matter for another State of the European Union.

 

6. On the same day she accepted the benefit of the material reception conditions offered by the French Office for Immigration and Integration (OFII).

 

7. From 2 June 2018 to 21 June 2018, the first applicant contacted the social watch services in Toulouse fourteen times, known as "115" according to the telephone number, in order to benefit from sheltering with her three daughters. However, she was refused. In the individual notes to each family home that had submitted an application for emergency accommodation, the social watch officers noted that the permanence of access to health care (PASS), the permanence of reception, information and orientation (PAIO) and associations had pointed out the vulnerability of this family. They also noted that one of the girls was ill and that the applicant had feared for her eldest daughter, who had allegedly been threatened by men in the park where they were sleeping. They repeatedly mentioned the exhaustion of household members.

 

8. On 11 June 2018, a doctor from the Toulouse hospitals drew up a certificate in which he expressed his concern about the 5-year-old girl's state of health and indicated that sheltering the family home was essential. The girl received psychological follow-up, as evidenced by reports from the permanent access to health care of 15, 20, 27 June 2018 and 20 July 2018. In these same reports, it was mentioned that the family received meals in a social space called "Grand Ramier" and received a check for 300 euros (EUR) in June 2018 from the Maison des Solidarités.

 

9. From 12 June 2018, the first applicant spent her nights, accompanied by her daughters, in the lobby of a hospital, on seats or on the floor.

 

10. On 21 June 2018 the first applicant alerted the OFII and the services of the Haute-Garonne prefecture of the urgent need to shelter her family.

 

11. On June 22, 2018, she contacted twice the social watch which, faced with the distress of the home, granted her four nights in a hotel.

 

12. On 25 June 2018, the first applicant applied to the Toulouse Administrative Court for interim relief to order the administration to host her and her daughters. His application was directed, on the one hand, against the OFII in respect of the accommodation provided for in the context of the asylum procedure, and, on the other hand, against the prefecture of Haute-Garonne in respect of the emergency accommodation provided for by the Code of Social Action and Families.

 

13. From 26 June 2018, the family still lived on the street and contacted social watch twice until 27 June 2018. The family's situation was again reported by the association "the Red Cross", which feared for the safety of the young teenager.

 

14. By an order of 27 June 2018, the interim relief judge of the Toulouse Administrative Court dismissed the application against the OFII but ordered the Prefect of Haute-Garonne, who had not submitted any pleadings or appeared or had been represented at the hearing, to designate without delay a place of emergency accommodation for the applicants from the date of notification of the order, and this, under a penalty of EUR 200 per day of delay.

 

15. From June 27, 2018 to July 3, 2018, the family lived on the street again and contacted social watch seven times. The family home was also reported to the 115 service by the permanent access to care and by the permanence of reception, information and orientation. The comments of the social watch mentioned the urgency of granting accommodation to these exhausted people while noting the lack of solution to propose.

 

16. On 3 July 2018, the first applicant provided a copy of the order of 27 June 2018 to the reception, information and guidance centre.

 

17. From July 4, 2018 to July 20, 2018, the family lived on the street again and contacted the social watch fourteen times, still without result. It was also reported to the 115 service by the reception, information and orientation service. The comments of the social watch mentioned the order of the judge of the administrative court, the exhaustion of the family, its isolation, its distress and misunderstanding as well as the extreme precariousness of its situation.

 

18. On 5 July 2018 the first applicant applied for the initiation of proceedings for the enforcement of the order of 27 June 2018 under Articles L. 911-4 et seq. of the Code of Administrative Justice. On the same day, the Administrative Court of Toulouse asked the prefecture of Haute-Garonne to justify, within seven days, the nature and date of the measures taken to execute the order of 27 June 2018. The prefecture did not respond to this request.

 

19. On 13 July 2018 the first applicant lodged a new interim release in order to establish the prefect's refusal to execute and to order her and her three daughters to refer her and her three daughters to a residential facility.

 

20. By an order of 18 July 2018, the interim relief judge of the Toulouse Administrative Court noted that the order of 27 June 2018 remained unenforced, in breach of Article 6 § 1 of the Convention, and ordered the prefect to designate, within twenty-four hours of notification of his order, a place of emergency accommodation in the family home, subject to a penalty payment of EUR 500 per day of delay. In that case, the Prefect, who had not submitted any brief, was neither present nor represented at the hearing.

 

21. The State did not appeal against any of the orders of the Toulouse Administrative Court.

 

22. On 23 July 2018, the first applicant applied to the Court for an interim measure under Rule 39 of its Rules of Court.

 

23. On 24 July 2018, the Court took an interim measure against the French Government, in the interests of the parties and the proper conduct of the proceedings before it, requesting it to provide care for the applicants by, inter alia, granting them emergency accommodation.

 

24. From that date, the family home was accommodated in the hotel, and then, from 26 July 2018, was taken over under the Reception and Accommodation Programme for Asylum Seekers (PRADHA).

 

25. By an order of 30 July 2018, the judge hearing the application for interim measures at the tribunal administratif de Toulouse decided that there was no longer any need to pay the penalty payments fixed by the orders of 27 June 2018 and 18 July 2018.

 

26. On 11 January 2019 the OFII certified that the asylum seeker's allowance had been paid to the applicants for the months of June to December 2018, in particular EUR 732 for June 2018 and EUR 756.40 for July 2018.

II. APPLICATION^NO. 34638/18 (A.D. AND OTHERS)

 

27. The applicants, a couple, born in 1978 and 1982, and their daughter, born in 2015, are Congolese nationals. They say they fled their country because of death threats.

 

28. They arrived in France in June 2018. The second applicant was also almost eight months pregnant.

 

29. From 13 to 17 June 2018, the social watch was requested seven times by the applicants or the social services of the Haute-Garonne department with a view to the accommodation of the family, still without result. The social watch officers stated that the family home was destitute, exhausted and in distress, that the applicant, who was pregnant, was extremely distressed and that the applicants spent their nights in a car park.

 

30. On 18 June 2018 the applicants applied for asylum at the Haute-Garonne prefecture, which issued them with a certificate of application for asylum known as the 'Dublin procedure', the examination of their application being a matter for another State of the European Union.

 

31. On the same day, they accepted the benefit of the material reception conditions offered by the OFII.

 

32. Also on the same day a doctor at the Toulouse hospitals certified that the second applicant's state of health required accommodation.

 

33. From 18 to 20 June 2018, social monitoring was requested five times by the applicants or the social services of the Haute-Garonne department with a view to the accommodation of the family, still without result. The comments in the social watch referred to the applicant's admission to the emergency room.

 

34. On 19 June 2018 counsel for the applicants alerted the OFII to the urgent need to shelter the family.

 

35. On 20 June 2018, the second applicant was admitted to hospital for monitoring of her pregnancy. This hospitalisation lasted until the family home was sheltered, following the interim measure indicated by the Court (see paragraph 50 below).

 

36. From 21 June 2018 to^{1 July} 2018, social monitoring was requested eleven times by the first two applicants or the social services of the Haute-Garonne department for the accommodation of the family, still without result. The comments of the previous day referred to a report made by the maternity ward, the applicant's hospitalisation, who had been exhausted, and the separation of the members of the family household as a result of the father's hospitalisation, exhaustion and despair in the absence of accommodation, the "increasingly worrying" nature of the situation and the extreme vulnerability of the family.

 

37. On 29 June 2018, the first two applicants applied to the Toulouse Administrative Court for an interim release order to order the administration to accommodate them with their child. Their application was directed, on the one hand, against the OFII for the accommodation provided for in the asylum procedure, and, on the other hand, against the Haute-Garonne prefecture for the emergency accommodation provided for by the Code of Social Action and Families.

 

38. By an order of 2 July 2018, the interim relief judge of the Toulouse Administrative Court dismissed the application against the OFII but ordered the Prefect of Haute-Garonne, who had not submitted any pleadings or appeared or had been represented at the hearing, to designate an emergency accommodation for the applicants, capable of accommodating them within 24 hours of notification of his order.

 

39. The applicants maintain that they provided a copy of that order to the reception, information and guidance office.

 

40. On 3 July 2018 the first two applicants contacted the prefecture's office with a view to enforcing the order issued the previous day, but received no reply.

 

41. On 6 July 2018 the first two applicants applied for the initiation of proceedings for the enforcement of the order of 2 July 2018 under Articles L. 911-4 et seq. of the Code of Administrative Justice. On 9 July 2018 the Tribunal administratif de Toulouse asked the Haute-Garonne prefecture to justify, within seven days, the nature and date of the measures taken to execute the order of 2 July 2018. The prefecture did not respond to this request.

 

42. On 16 July 2018 the second applicant gave birth to the couple's second child, the fourth applicant before the Court.

 

43. On 17 July 2018 the first two applicants lodged a new interim measure with the Toulouse Administrative Court seeking a declaration that the prefect had refused execution and ordered him to designate them a residential facility.

 

44. On 18 July 2018, a doctor at Toulouse hospitals certified that the state of health of the premature newborn required the provision of accommodation adapted to the needs of the family from the release of the neonatology department, for a period of six months.

 

45. From 3 to 18 July 2018, the social watch was requested eleven times by the applicants or the social services of the Haute-Garonne department with a view to the accommodation of the family, still without result. The comments of the previous day referred to the family's exhaustion, the administrative court's decision ordering their accommodation, the indignation, fatigue and concern of the first applicant, and the fear of the applicants at the prospect of having to sleep on the street with an infant.

 

46. By an order of 19 July 2018, the interim relief judge of the Toulouse Administrative Court noted that the order of 2 July 2018 remained unenforced. He ordered the prefect to designate an emergency accommodation at the home, within twenty-four hours of notification of his order, subject to a penalty of EUR 100 per day of delay. In that case, the Prefect, who had not submitted any brief, was neither present nor represented at the hearing.

 

47. From 20 to 24 July 2018, the order remained unenforced. Social monitoring was requested five times by the applicants. The officers of this service mentioned a new report of maternity, the "very worrying" nature of the situation and the concern of the first applicant.

 

48. The State did not appeal against any of the orders of the Toulouse Administrative Court.

 

49. On 24 July 2018 the applicants applied to the Court for an interim measure under Rule 39 of its Rules of Court.

 

50. On 25 July 2018, the Court issued an interim measure against the French Government, in the interests of the parties and the proper conduct of the proceedings before it, requesting it to provide care for the applicants, in particular by granting them emergency accommodation.

 

51. On the same day, the family was accommodated.

 

52. Throughout the period during which they were not accommodated, the applicants spent their nights in a car park or on a porch of a building, with the exception, for the second applicant and the fourth applicant, of days of hospitalization.

 

53. On 11 January 2019 the OFII certified payment of the asylum seeker's allowance to applicants for the months of June to December 2018, in particular EUR 396.20 for June 2018 and EUR 880.40 for July 2018.

III. APPLICATION^NO. 35047/18 (I.K. AND OTHERS)

 

54. The applicants, a couple, born in 1961 and 1983, and their daughter, born in 2003, are Georgian nationals.

 

55. They arrived in France in April 2018. The first applicant is paraplegic, his state of health requires continuous nursing care as well as follow-up in the infectious disease and surgery department.

 

56. The applicants contacted the social watch on numerous occasions from 20 to 22 April 2018 with a view to sheltering the family, which was still to no avail. The comments of this social watch reported a family exhausted, distraught, in a situation of great vulnerability. The officers of the service stated that the first applicant's disability "made the street unbearable". They noted the physical suffering suffered by the applicant and the hygiene problems he encountered as a result of his living conditions. They mentioned the report of the reception platform for asylum seekers and noted the "urgency of the situation".

 

57. On 23 April 2018 the applicants applied for asylum to the Haute-Garonne prefecture, which issued them with a certificate of application for asylum under the so-called accelerated procedure.

 

58. The applicants state that they accepted on the same day the benefit of the material reception conditions offered by the French Office for Immigration and Integration (OFII).

 

59. From 23 April 2018 to 13 June 2018, the social watch was requested more than thirty times by the applicants, the reception, information and guidance service or the services of the Toulouse hospitals for the accommodation of the family, still without result. The comments of the social watch mentioned the isolation of the family and its state of exhaustion and despair. They noted that the first applicant's state of health was worrying and that he needed daily care; They mentioned that the teenager was experiencing psychological difficulties. The comments referred to an appeal by the first applicant describing unbearable living conditions. Officers described the situation as "truly worrying", requiring urgent treatment.

 

60. From 10 May 2018 to 14 June 2018, the first applicant was hospitalised. The applicants slept in the hospital lobby and then on the street. They asked in vain for social watch. The officers referred to an increasingly difficult situation, the concern of the State services and noted the exhaustion of the applicants, who were concerned about the end of the first applicant's period of hospitalization.

 

61. As of 14 June 2018, the applicants were sheltered in the context of emergency accommodation.

 

62. On 28 June 2018 the OFII certified that the asylum seeker's allowance had been paid to applicants since 23 April 2018, in particular in the amount of EUR 951.60 for May 2018, EUR 852 for June 2018 and EUR 880.40 for July 2018.

 

63. On 5 July 2018, their provision for emergency accommodation ended, without explanation.

 

64. On the same day a doctor at the Toulouse hospitals certified that the first applicant was paraplegic, in a wheelchair and not autonomous. He stated that his state of health was incompatible with a lack of shelter.

 

65. On 9 July 2018 the applicants alerted both the OFII and the services of the Haute-Garonne prefecture of the urgency of their shelter. These requests went unanswered.

 

66. From 5 to 11 July 2018, the social watch was requested nine times by the applicants, the reception, information and guidance service or the services of the Toulouse hospitals for the accommodation of the family, still without result. The comments referred to the distress of the frightened family, the deterioration of the girl's state of health, the persistent and significant health problems of the first applicant with risks of "very serious medical consequences". The officers recounted the applicants' account of a night-time attack in which the first applicant was allegedly beaten and the third applicant assaulted. Finally, the notes mentioned that the family being in a situation of great vulnerability and totally destitute on the street, shelter seemed vital.

 

67. On 10 July 2018, the first two applicants applied to the Toulouse Administrative Court for an interim release order to order the administration to house them with their daughter. Their application was directed, on the one hand, against the OFII for the accommodation provided for in the asylum procedure, and, on the other hand, against the Haute-Garonne prefecture for the emergency accommodation provided for by the Code of Social Action and Families.

 

68. By an order of 12 July 2018, the interim relief judge of the Toulouse Administrative Court dismissed the application against the OFII but ordered the Prefect of Haute-Garonne, who had not submitted any memorial or appeared or had been represented at the hearing, to designate without delay an emergency accommodation for the applicants within forty-eight hours of notification of his order.

 

69. From 13 to 17 July 2018, the social watch was requested seven times by the applicants, the reception, information and guidance service or the services of the Toulouse hospitals for the accommodation of the family, still without result. The comments of the social watch mentioned the deterioration of the first applicant's state of health and the exhaustion of the family, which was in great difficulty.

 

70. On 17 July 2018 the first two applicants applied for the opening of proceedings for the enforcement of the order of 12 July 2018 under Articles L. 911-4 et seq. of the Code of Administrative Justice. On the same day, the Administrative Court of Toulouse asked the prefecture of Haute-Garonne to justify, within seven days, the nature and date of the measures taken to execute the order of 12 July 2018. The prefecture did not respond to this request.

 

71. From 18 to 24 July 2018, the applicants requested social monitoring five times.

 

72. The State did not appeal the order of 12 July 2018 of the Administrative Court of Toulouse.

 

73. On 26 July 2018 the applicants applied to the Court for an interim measure under Rule 39 of its Rules.

 

74. On the same day the Court took an interim measure against the French Government, in the interests of the parties and the proper conduct of the proceedings before it, requesting it to provide the applicants with emergency accommodation by granting them emergency accommodation.

 

75. As of July 27, 2018, the family was accommodated.

 

76. On the same day, a clinical psychologist from Toulouse hospitals certified that she had been meeting the third applicant since 19 July 2018. It testified that the latter presented a disturbing clinical picture and that the social emergency in which the family found itself left "serious marks on my mental health".

THE RELEVANT LEGAL FRAMEWORK AND INTERNAL PRACTICE

 

 

77. Article L. 345-2 of the Code of Social Action and Families (CASF) provides that:

"In each department, under the authority of the representative of the State, a social monitoring system shall be set up to receive homeless persons or persons in distress, to carry out an initial assessment of their medical, psychological and social situation and to direct them to the structures or services required by their condition. This guidance is provided by an integrated reception and guidance service, under the conditions defined by the agreement concluded with the representative of the State in the department provided for in Article L. 345-2-4. / This device operates without interruption and can be seized by any person, organization or community. ».

 

78. The first two paragraphs of Article L. 345-2-2 of the CASF provide that:

"Any homeless person in a situation of medical, psychological or social distress shall have access, at all times, to an emergency accommodation system. / This emergency accommodation must allow him, in reception conditions consistent with the dignity of the human person, to benefit from services ensuring shelter, food and hygiene, an initial medical, psychological and social assessment, carried out within the accommodation structure or, by agreement, by professionals or external organizations and to be directed to any professional or structure likely to provide him with assistance justified by his condition, in particular, a residential and social reintegration centre, stabilization accommodation, a boarding house, a residential home, an institution for dependent elderly people, a bed for health care or a hospital service. »

 

79. Article L. 345-2-4 of the CASF provides for the conclusion of an agreement between the representative of the State in the department and a legal person providing an integrated reception and guidance service (SIAO), responsible for social monitoring, including the emergency number '115'. This legal entity has only a departmental competence, but may, by derogation, since a reform introduced by^{Law No.} 2018-1021 of 23 November 2018 adding the last paragraph below, exercise its missions at the level of several departments:

"In order to ensure the best processing of all applications for accommodation and housing made by homeless persons or families experiencing particular difficulties, due to the inadequacy of their resources or living conditions, to access decent and independent housing by their own means and to improve the fluidity between these two sectors, an agreement is concluded in each department between the State and a legal person to ensure an integrated reception and orientation service whose missions, on the departmental territory:

1^o To identify all accommodation places, housing in social residences as well as housing of organizations that carry out rental intermediation activities;

2^o To manage the telephone call service for the persons or families mentioned in the first paragraph;

[...]

6^o To ensure the coordination of the persons contributing to the social monitoring system provided for in Article L. 345-2 and, where the agreement provided for in the first paragraph of this Article so provides, the coordination of the actors mentioned in Article L. 345-2-6;

[...]

By way of derogation from the first paragraph of Article L. 345-2 and this article, the missions of the integrated reception and guidance service and of legal persons contributing to the social monitoring system provided for in Article L. 345-2 may be carried out at the level of several departments. To this end, an agreement may be concluded between a legal person and the representatives of the State in several departments to ensure, under the authority, in each department, of the representative of the State, an integrated reception and guidance service operating in the territory of several departments. »

 

80. The Council of State also specified the scope of this accommodation system, in a decision of 13 July 2016, No. 399829:

'6. Considering that it is for the authorities of the State ... to implement the right to emergency shelter recognized by law to any homeless person who is in a situation of medical, psychological or social distress; that a serious failure to perform this task may reveal, for the purposes of Article L. 521-2 of the Code of Administrative Justice, a serious and manifestly illegal infringement of a fundamental freedom when it has serious consequences for the person concerned; whereas it is for the judge hearing the application for interim measures to assess in each case the steps taken by the administration, taking into account the means at its disposal and the age, state of health and family situation of the person concerned; that, foreign nationals who are subject to an obligation to leave French territory or whose application for asylum has been definitively rejected and who must thus leave the territory under the provisions of Article L. 743-3 of the Code of Entry and Residence of Foreigners and the Right of Asylum not intended to benefit from the emergency accommodation system, A failure to act constituting a serious and manifestly unlawful interference with a fundamental freedom can be characterised, at the end of the period strictly necessary for the implementation of their voluntary departure, only in exceptional circumstances ... »

II. THE SUMMARY LIBERTY

 

81. Articles L. 521-2 and L. 523-1 of the Code of Administrative Justice, relating to interim measures, provide that:

Article L. 521-2

'Hearing an application to that effect justified by urgency, the judge hearing the application for interim measures may order any measure necessary to safeguard a fundamental freedom to which a legal person governed by public law or a body governed by private law entrusted with the management of a public service has interfered with a serious and manifestly unlawful offence in the exercise of one of its powers. The judge hearing the application for interim measures shall rule within forty-eight hours. »

Article L. 523-1

« [...] Decisions rendered pursuant to Article L. 521-2 may be appealed to the Council of State within fifteen days of their notification [...]. »

III. ENFORCEMENT OF COURT DECISIONS

 

82. Article L. 11 of the Code of Administrative Justice (CJA) provides that:

"Judgments are enforceable."

 

83. Article L. 911-4 of the CJA provides:

"In the event of non-execution of a judgment or judgment, the party concerned may request the administrative court or the administrative court of appeal which issued the decision to ensure its execution.

[...]

If the judgment or judgment whose enforcement is sought has not defined the enforcement measures, the court seised shall make that definition. It may set a time limit for execution and impose a penalty payment.

The Administrative Court or the Administrative Court of Appeal may refer the application for enforcement to the Council of State. »

 

84. Article L. 521-4 of that code provides that:

'The judge hearing the application for interim measures, the judge hearing the application for interim measures, on a matter hearing the matter of any interested person may, at any time, in the light of a new factor, amend or terminate the measures which he had ordered.'

 

85. By decision of 28 July 2017, No⁴¹⁰⁶⁷⁷, the Conseil d'État provided the following clarifications:

'16. It is for the various administrative authorities to take, within their respective spheres of competence, the measures necessary to ensure compliance with judicial decisions. If the execution of an order made by the judge hearing the application for interim measures, on the basis of Article L. 521-2 of the Code of Administrative Justice, may be sought under the conditions defined by Book IX of the same Code, and in particular Articles L. 911-4 and L. 911-5, the person concerned may also apply to the judge hearing the application for interim measures, on the basis of Article L. 521-4 of that code, to ensure the enforcement of the measures ordered which have remained ineffective by means of new injunctions and a penalty payment ... »

 

86. By an order of 19 February 2009, No. 324864, the Council of State held that the judge hearing the application for interim relief was competent to pay a penalty previously imposed:

"Considering that under Article L. 521-2 of the Code of Administrative Justice: "Seized of a request to this effect justified by urgency, the judge hearing the application for interim measures may order any measures necessary to safeguard a fundamental freedom to which a legal person governed by public law or a body governed by private law entrusted with the management of a public service has referred, in the exercise of one of its powers, a serious and manifestly unlawful interference ... » ; that under Article L. 523-1: "... Decisions rendered pursuant to Article L. 521-2 may be appealed to the Council of State within fifteen days of their notification... " and that under Article L. 522-3: "When the application is not urgent or when it is obvious, in view of the application, that it does not fall within the jurisdiction of the administrative court, that it is inadmissible or that it is unfounded, the judge hearing the application for interim measures may reject it by a reasoned order without there being any need to apply the first two paragraphs of Article L. 522-1. » ;

Considering that it follows from the abovementioned provisions, combined with those of Articles L. 911-1, L. 911-2 and L. 911-3 of the Code of Administrative Justice, that the judge hearing the application for interim measures ruling pursuant to Article L. 521-2 has jurisdiction to hear conclusions for the issue of an injunction, on the basis of Articles L. 911-1 and L. 911-2 of the same code, or a penalty payment, on the basis of Article L. 911-3, and if necessary to subsequently settle the penalty payment; the same applies, where appropriate, to the judge hearing the application for interim measures ruling on appeal ... ».

 

87. By decision of 6 October 2010, No 307683, the Conseil d'État stated, concerning the nature of the decision assessing the penalty payment, that:

« A decision by which the court which imposed a provisional penalty payment shall rule on its winding-up shall be judicial ... »

IV. THE LIABILITY OF THE ADMINISTRATION IN THE EVENT OF NON-EXECUTION OR LATE EXECUTION OF COURT DECISIONS

 

88. In a decision of 27 May 1949, No. 93122-96949, the Conseil d'État recognised that an applicant could claim compensation for damage arising from the "undue delay which the administration [had] made to the regulations involved in the execution of the previous decisions of the Council of State", which in the present case required the person concerned to be reinstated in his employment.

 

89. By a decision of 23 June 2014, No. 369946, the Council of State reaffirmed that:

« [...] if the State is liable to incur liability by reason of the defective functioning of the public service of justice, an excessive delay in the execution of a judicial decision shall, in principle, render the person responsible for such enforcement ... »

IN LAW

 

90. Having regard to the similarity of the subject-matter of the applications, the Court considers it appropriate to examine them together in a single judgment.

II. THE ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

 

91. Relying on Article 6 § 1 of the Convention and Article 13 in conjunction with Article 3, the applicants complained of the failure to comply with the interim relief orders of the Administrative Court ordering them to be taken over in the context of emergency accommodation and the absence of an effective emergency procedure for the enforcement of an interim order.

 

92. As the master of the legal classification of the facts (Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014 (extracts)), the Court considers it more appropriate to examine these complaints solely from the perspective of Article 6 of the Convention, according to which:

"Everyone has the right to a fair hearing ... by a court ... which shall decide ... disputes as to its rights and obligations in a suit at law ... ».

 

 

 

 

 

93. The Government did not deny the existence of a dispute but considered that the present disputes did not concern a civil right or a criminal charge within the meaning of Article 6 § 1 of the Convention. It emphasises the autonomy of these concepts in relation to the legal classifications of the respondent State.

 

94. It observes that, according to settled case-law, decisions on immigration, entry, residence and removal of aliens do not dispute an applicant's rights or obligations in a suit at law or relate to the merits of a criminal charge against him.

 

95. It mentions that, at the domestic level, the Council of State considers that Article 6 of the Convention is not applicable to decisions taken in the field of aliens' law.

 

96. It points out that the material reception conditions for asylum seekers, which are the subject-matter of domestic judicial proceedings, are linked to the applicants' status as asylum seekers and are inseparable from it. In his last written pleadings, he states that although the dispute did indeed concern care under emergency accommodation, the applicants relied first and foremost on their status as asylum seekers.

 

97. It concludes that the complaint alleging failure to comply with the orders of the judge hearing the application for interim measures of the Administrative Court is incompatible ratione materiae with Article 6 § 1 of the Convention and is therefore inadmissible.

Ii. The applicants

 

98. The applicants submitted that Article 6 of the Convention was applicable to the present disputes where the disputes involved social issues under a non-contributory scheme in respect of which elements of private law took precedence over those of public law.

 

99. In the alternative, they argue that, irrespective of the civil nature of the contested disputes, repeated violations by the State of the enforceability of national judgments entail the applicability of Article 6 of the Convention.

 

 

100. The Defender of Rights submits that a dispute concerning the deprivation of material reception conditions for an asylum seeker falls within the civil aspect of Article 6 of the Convention. He argues that the status of asylum-seeker cannot deprive him of the possibility of relying on that article and submits that the case-law Maaouia v. France is not applicable in the present case.

 

101. In that regard, it refers to the autonomy of the term 'civil' in the Court's case-law and recalls that disputes relating to questions of social security, social assistance, housing allowances and assistance in obtaining social housing fall within the scope of Article 6.

 

102. It points out that, in the present case, asylum-seekers rely on a right to accommodation provided for by domestic law on the one hand, material reception conditions and, on the other, emergency accommodation, and notes that the State's discretionary power is limited when the conditions laid down by law are met.

 

103. It is surprised that the question of the applicability of Article 6 of the Convention arises in relation to cases relating to the enforcement of court decisions.

 

 

 

104. The Court has repeatedly held that in order for Article 6 § 1 to apply in its "civil" aspect, there must be a dispute as to a "right" which can be claimed, at least arguably, recognised in domestic law, whether or not that right is protected by the Convention. It must be a genuine and serious challenge, which may concern both the very existence of a right and its scope or the manner in which it is exercised (see Károly Nagy v. Hungary [GC^{], no}. 56665/09, § 60, 14 September 2017, and the case-law cited).

105. In order to decide whether the "right" relied on really has a basis in domestic law, it is necessary to take as a starting point the provisions of the relevant national law and the interpretation of them by the domestic courts (see Károly Nagy, cited above, § 62).

 

 

107. The Court emphasises, however, that these restrictions on the material scope of Article 6 § 1 of the Convention concern only the subject-matter of the dispute.

 

108. Thus, the Court recalls that, irrespective of the status of the person concerned, it has accepted the applicability of Article 6 § 1 of the Convention to disputes relating to social accommodation (see Tchokontio Happi v. France, no. 65829/12, 9 April 2015, and Fazia Ali v. the United Kingdom^{, no}. 40378/10, §§ 56-60, 20 October 2015) or to social benefits (Deumeland v. Germany, 29 May 1986, §§ 59-74, Series A no. 100), whether or not contributory (see Salesi v. Italy, 26 February 1993, § 19, Series A no. 257-E).

Ii. Application of these principles to individual cases

109. In the first place, the Court recalls that the legal framework for emergency accommodation is laid down by the abovementioned provisions of Articles L. 345-2 and L. 345-2-2 of the Code of Social Action and Families (see paragraphs 77 and 78 above), which confer on any homeless person in a situation of medical, psychological or social distress a right to emergency accommodation.

 

110. That substantive right is accompanied by procedural law enabling compliance with it to be penalised in court, within the limits set out below.

111. On the one hand, the Conseil d'État defined the role of the judge hearing the application for interim relief with regard to the recognition of that right by deciding that it may issue an injunction against the State in the event of a serious failure of the services to carry out their mission of emergency accommodation which reveals a serious and manifestly unlawful interference with a fundamental freedom, That failure to act is assessed on the basis of "the steps taken by the administration, taking into account the means at its disposal and the age, state of health and family situation of the person concerned" (see paragraph 80 above).

112. On the other hand, the Conseil d'État has restricted the possibility of asserting this right in the context of the interim relief for foreign nationals in certain administrative situations linked to the absence of a right of residence on French territory (see paragraph 80 above).

 

113. The Court concludes that there is in France a right to emergency accommodation for persons in the situations referred to by the legislature, and stresses that this right may be claimed on the basis of the procedure for interim relief within the limits defined by the Conseil d'État.

 

114. In the present case, the judge hearing the application for interim measures recognised that the applicants fulfilled the conditions laid down for the grant of emergency accommodation and then held that the State's failure to fulfil its task was characterised, revealing a serious and manifestly unlawful interference with the fundamental freedom constituted by the right to emergency accommodation.

 

115. In these circumstances, the Court concludes that the applicants enjoyed a right within the meaning of Article 6 § 1 of the Convention.

116. Secondly, the Court considers that the right to emergency shelter, by its social nature and purpose, is similar to the rights recognised in the context of the enforceable right to housing or social assistance benefits within the meaning of the case-law cited in paragraph 108 above.

117. In those circumstances, the granting or refusal of a place in emergency accommodation constituted, in the present case, a civil right which cannot be regarded as a decision on the immigration, entry, stay or removal of foreign nationals within the meaning of the case-law cited in paragraph 106 above.

 

118. The Court concludes that Article 6 § 1 of the Convention applies to the present disputes.

 

 

 

 

119. In their initial observations on the admissibility and merits of the applications, the Government pointed out that both the provisions of the Code of Administrative Justice and the case-law of the administrative courts provided effective legal remedies for challenging the lack of emergency accommodation for asylum-seekers. It acknowledges that the applicants were able to exercise some of these remedies and that the judge upheld their claims.

 

120. In the observations submitted following the Court's supplementary communication, the Government nevertheless submitted an inadmissibility alleging failure to exhaust domestic remedies, relying on the decisions of the Cour Dessources v. France (dec.), no. 11125/15, 20 October 2020, and Bouhamla v. France (dec^{.), no}. 31798/16, 25 June 2019.

 

121. It submits that the applicants' alleged violations of Articles 3 and 6 ceased inter alia on the date on which they were lodged by the French authorities and that it was for them to bring an action for compensation in order to obtain compensation for the damage which they considered they had suffered.

 

122. The Government relies on judgments handed down by the French courts in the context of compensation for damage caused by a failure on the part of the administration to take charge of persons in the context of material reception conditions linked to asylum or in the context of emergency accommodation under ordinary law.

Ii. The applicants

 

123. The applicants submitted that the Government did not raise any objection of inadmissibility in their initial observations, in which they clearly acknowledged that the applicants had availed themselves of all effective remedies under domestic law.

 

124. They maintain that, at the material time and when their application was lodged with the Court, they had exhausted all available remedies capable of redressing the violations of the Convention. They state that they invoked the violation of res judicata in their application for enforcement before the Administrative Court.

 

125. They point out that it was only after the Court had indicated an interim measure that the infringement ceased.

 

126. They add that an action for damages against the State would have been totally ineffective at the material time, because of the inertia of the administration and the length of such proceedings before the domestic courts.

 

127. Finally, they point out that the exhaustion of remedies rule does not apply to claims for just satisfaction.

 

 

 

128. The Court recalls that the rule of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention imposes on applicants the obligation to avail themselves beforehand of the remedies available in the legal system of their country. States therefore do not have to answer for their actions before the European Court before they have had the opportunity to redress the situation in their domestic legal order. This rule is based on the assumption that domestic law provides an effective remedy for the alleged violation (see v. the United Kingdom [GC^{], no}. 24888/94, § 57, ECHR 1999-IX).

 

129. The Court emphasises that this obligation to exhaust domestic remedies is assessed in principle at the date of lodging the application before it (see Selahattin Demirtaş v. Turkey (no. 2) [GC^{], no}. 14305/17, § 193, 22 December 2020).

 

130. The Court wishes, however, to reaffirm that, in the context of the machinery for the protection of human rights, this rule must be applied with a certain flexibility and without excessive formalism (see Sejdovic v. Italy [GC^{], no}. 56581/00, § 44, ECHR 2006-II). Moreover, an applicant who has availed himself of an apparently effective and sufficient legal remedy cannot be criticised for not having tried to use others which were available but had little better chance of success (see Aquilina v. Malta [GC^{], no}. 25642/94, § 39, ECHR 1999-III).

Ii. Application of these principles to individual cases

131. The Court notes that the applicants were accommodated on 24 (M.K. and others), 25 (A.D. and others) and 27 July 2018 (I.K. and others) (see paragraphs 24, 51 and 75 above). Thus, they finally obtained the shelter that the judge of summary liberty had ordered to grant them.

132. Since the continuing violation complained of had ceased on those dates, the applicants should in principle have brought the remedy for damages available to them in order to satisfy the requirement of Article 35 § 1 of the Convention (see paragraphs 88 and 89 above).

133. Nevertheless, the Court notes that in the present case, even before their applications were lodged with it, the applicants applied to the Administrative Court for enforcement of the orders ordering their emergency accommodation on the basis of the provisions of Article L. 911-4 of the Code of Administrative Justice (see paragraphs 18 (M.K.), 41 (A.D .) and 70 (I.K.) above). In addition, the applicants M.K. and A.D. filed a second interim release, on the basis of the provisions of Article L. 521-2 of the Code of Administrative Justice, for the purpose of having the first order made in their favour enforced (see paragraphs 19 (M.K.) and 43 (A.D.) above).

134. In these circumstances, the Court considers, having regard to the steps taken by the applicants to obtain enforcement of the judicial decisions which had granted their request for emergency accommodation and having regard to the powers available to the administrative judge both in the administrative phase of execution and in summary proceedings, in order to compel the administration to execute its decisions (see paragraphs 83 to 87). above), that requiring the applicants to also apply to the judge for compensation would constitute a disproportionate obstacle to the effective exercise of their right of individual petition, as defined in Article 34 of the Convention (see, mutatis mutandis, Veriter v. France, no. 31508/07, §§ 58-60, 14 October 2010).

135. The Court concludes that, in these particular circumstances, the applicants must be exempted from the obligation to exhaust the remedy for damages available under domestic law.

136. It follows that the objection raised by the Government must be rejected.

137. Finding that this complaint is not manifestly ill-founded or inadmissible on any other ground referred to in Article 35 of the Convention, the Court declares it admissible.

 

 

 

 

138. The applicants submitted that the French authorities' continued refusal to execute the interim relief orders of the Administrative Court constituted a violation of Article 6 § 1 of the Convention, although those authorities were in a position to comply with them.

 

139. They emphasise in particular the silence of the administrative authorities, which did not respond to any of the requests of the Administrative Court or their counsel. They argue that while the judge did order their accommodation, this was not effective because of the inertia of the administration.

 

140. They submit that both the nature of the judicial decision and the fundamental freedom sought to protect the orders justified their urgent enforcement.

 

141. They note that the State did not appeal the orders of the Administrative Court, so that they were enforceable and final.

 

142. They submit that the saturation of the hosting system was foreseeable and should have been anticipated. They indicate that they are not in a position to verify the figures put forward by the Government. Finally, they note that there was nothing to prevent the competent authorities from referring families to a similar system in another department.

 

143. They emphasise that it was only after the matter had been brought before the Court and interim measures had been issued that they were accommodated.

 

 

144. The Government submitted that the administrative judge had used the powers at his disposal to enforce the court decisions he had handed down, both in the context of the interim relief and the enforcement procedure under Article L. 911-4 of the Code of Administrative Justice.

 

145. He states that he is aware that the lack of funds or other resources could not justify the failure to enforce court decisions. It considers, however, that it cannot be criticised for not having implemented the contested decisions, since the applicants obtained the designation, by the prefect, of accommodation on 24 (M.K.), 25 (A.D.) and 27 July 2018 (I.K.), that is to say, only a few days or weeks after the notification of the orders.

 

146. The Government submitted that although the Prefect of Haute-Garonne had not been able to provide accommodation to the applicants before the end of July 2018, that was due, on the one hand, to the saturation of the accommodation arrangements for asylum seekers and ordinary accommodation in that department during that month, on the other hand, a lack of available appropriations and, finally, the complexity of enforcing the injunctions of interim orders. In this regard, the Government provides the following figures:

At the end of June and beginning of July 2018, 98.5% of the 7,364 accommodation places for asylum seekers in the Occitanie region were occupied.

Within this region, the Haute-Garonne department had 1,609 accommodation places for asylum seekers, spread across all permanent and emergency measures.

In 2017, the two one-stop shops for asylum seekers in the Occitanie region (GUDA of Toulouse and Montpellier) registered 4,404 asylum applications, including 2,693 applications to the GUDA of Toulouse, to which the Haute-Garonne department is attached. Asylum applications at both regional and departmental levels represented an increase of 48% compared to 2016, compared to an increase of 26% at the national level.

In the first half of 2018, the region's GUDAs registered nearly 1,900 applications, including 1,200 at the GUDA in Toulouse, which represents an increase of 7% compared to the previous year.

As the permanent places existing in emergency accommodation facilities, both under ordinary law and in the national reception system (DNA) for asylum seekers, are saturated, the French authorities have resorted to sheltering households in very vulnerable situations (very young children, disabled people or people with serious pathologies) from the hotel system.

This use of the hotel system (accommodation under ordinary law and accommodation for asylum seekers) was particularly important during the winter period 2017-2018. Thus, 1,000 people (including asylum seekers) were accommodated each night in hotels during the winter period, despite the opening of 345 additional places dedicated to winter accommodation under ordinary law and the mobilization of a gymnasium of 100 places throughout this period.

As of June 29, 2018, 856 people (compared to 350 on the same date in 2017) were still staying at the hotel.

In July 2018, the State was therefore no longer able to cope with new requests for emergency accommodation in this department due to a lack of available places in accommodation facilities and of available credits to finance additional hotel nights.

However, on average over the period from 23 to 28 July 2018, between 200 and 300 requests for accommodation were registered on 115 daily, with a positive orientation rate of 15% to 20% of requests. These positive orientations mainly concerned people who were isolated and in short-term places. On the other hand, there were almost no more possibilities of care for families with children.

 

147. The Government submitted that the penalty payments imposed by the administrative judge in the files of the applicants M.K. and A.D. had not been paid, either because the applicants had already been relocated or because this had not been requested even though all the sums had gone to the applicants.

 

148. The Government stated that the applicants had received an asylum seeker's allowance, plus an additional daily amount, to enable them to finance accommodation, from^{1 May} 2018 for I.K. and T.L. and from^{1 July} 2018 for M.K. and A.D., in accordance with the provisions of the European Union Reception Directive.

 

 

149. The Defender of Rights submits that the failure of the State authorities to enforce a final and enforceable court decision ordering them to designate a place of accommodation for asylum-seekers infringes their right to the enforcement of court decisions, as provided for in Article 6 of the Convention, and deprives this provision of any practical effect.

 

150. It recalls that the State cannot use a lack of housing, funds or other resources as a pretext for not enforcing a court decision.

 

 

 

151. The Court recalls its case-law according to which the right of access to a court guaranteed by Article 6 § 1 of the Convention would be illusory if the domestic legal order of a Contracting State allowed a final and binding judicial decision to remain inoperative to the detriment of a party. The enforcement of a judgment, of whatever jurisdiction, must be regarded as an integral part of the "trial" within the meaning of Article 6 of the Convention (see, among other precedents, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 196, ECHR 2006-V).

 

 

 

153. Furthermore, the Court reiterates that, according to its settled case-law, a State authority may not use lack of funds or other resources as a pretext for failing to honour, for example, a debt based on a court decision (see Tchokontio Happi, cited above, § 50).

 

154. Finally, the Court considers that an unreasonably long period for the execution of a binding judgment may entail a violation of the Convention, since the reasonableness of the delay must be assessed having regard in particular to the complexity of the enforcement proceedings, the conduct of the applicant and the competent authorities and the amount and nature of the sum awarded by the court. cited above, § 66). A delay may be justified in particular circumstances but, in any event, it cannot result in an infringement of the very substance of the right protected by Article 6 § 1 (see Bourdov, cited above, § 67).

 

 

155. The Court seeks, in the first place, to analyse the complexity of the procedure for the enforcement of interim orders. In that regard, it notes that the Government rely on a saturation of reception facilities in the Haute-Garonne department, in particular in July 2018, for family homes such as those of the applicants, and a lack of funds to use private hotel services. The Court notes that although the applicants requested to know the sources of the information used by the Government, the Government did not provide them.

 

156. The Court notes that the Government do not specify whether accommodation in other departments was possible. In any event, it does not rely on any positive action taken by the Haute-Garonne prefecture to inform the central administration of the difficulties encountered concerning the emergency accommodation of homeless people, in particular in the context of the execution of the orders of the judge of the Toulouse Administrative Court.

 

157. The Court concludes that the Government have not demonstrated the complexity of the procedure for enforcing the applicants' interim orders.

158. In the second place, the Court, analysing the applicants' conduct, can only note their particular diligence in seeking enforcement of the orders of the judge hearing the application for interim measures of the Administrative Court. In particular, they have multiplied their calls to the social watch (paragraphs 15, 17 (M.K.), 45, 47 (A.D.), 69, 71 (I.K.) above) and the reception, information and guidance service (paragraphs 16 (M.K.), 39 (A.D.) above). They contacted the prefecture with a view to enforcing the orders (see paragraph 40 (A.D.) above). They also brought new court proceedings for the enforcement of the first orders for an order for accommodation, in the context of the administrative enforcement phase provided for in Article L. 911-4 of the CJA (see paragraphs 18 (M.K.), 41 (A.D.), 70 (I.K.) above) and in the context of a new interim release (paragraphs 19 (M.K .), 43 (A.D.) above).

159. They cannot therefore be accused of any negligence since, moreover, the enforceability of those interim orders implied their enforcement of its own motion by the State, both under domestic law (see paragraph 82 above) and under the requirements of Article 6 of the Convention (see paragraph 152 above).

160. Thirdly, the Court must assess the conduct of the competent authorities. It notes in this regard that, after the first orders ordering the applicants to be accommodated, the prefect, the representative of the State in the department, did not provide the explanations requested by the administrative court at the administrative stage of execution (see paragraphs 18 (M.K.), 41 (A.D.) and 70 (I.K.) above), did not defend in the context of the interim relief for enforcement of the first orders (see paragraphs 20 (M.K.) and 46 (A.D.) above ), did not respond to the applicants' requests (see paragraph 40 (A.D.) above) and did not execute those orders before the interim measures issued by the Court. Finally, the Court notes that the State never appealed against those orders (see paragraphs 21 (M.K.), 48 (A.D.) and 72 (I.K.) above).

 

161. The Court deplores the complete passivity of the competent administrative authorities as regards the enforcement of decisions of the administrative court in whose jurisdiction they were located, in particular in disputes concerning the protection of human dignity.

 

162. In the fourth place, the Court finds that the Government have not sufficiently demonstrated that they could not pay the amount of the accommodation benefits.

163. In conclusion, the Court is aware that the actual periods of non-execution of the first interim orders may not appear excessively long (27 days (M.K.), 22 days (A.D.) and 12 days (I.K.)). However, it wished to point out that the State's administrative authorities had not delayed but had refused to comply with the orders of the domestic court and that, contrary to the Government's submissions, enforcement had not been spontaneous but had been possible only following interim measures ordered by the Court (see paragraphs 23 (M.K.). 50 (A.D.) and 74 (I.K.) above). The Court wishes to emphasise that, in assessing compliance with the requirements of Article 6, it is of particular importance that in the present case the unenforced orders were the result of emergency proceedings relating to emergency accommodation.

 

164. The Court concludes that there has been a violation of Article 6 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

 

165. The applicants complained about the conditions in which they had to live during the periods during which they were not accommodated. They invoke Article 3 of the Convention, which provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

166. The Government raised an objection of inadmissibility concerning this complaint on the grounds of failure to exhaust domestic remedies, on the same grounds as those mentioned in paragraphs 119 to 122.

167. The applicants, for their part, maintained that they had exhausted domestic remedies in respect of this complaint, on the same grounds as those mentioned in paragraphs 123 to 127, also noting that they had availed themselves of Article 3 of the Convention in the context of their first interim release, which had not been appealed. in support of which they maintained that their continued homelessness constituted inhuman and degrading treatment and argued that the exhaustion of remedies was assessed, subject to exceptions, at the date of lodging the application with the Court.

168. The Court recalls that, under Article 35 § 1 of the Convention, the matter may be brought before it only after domestic remedies have been exhausted and that once the continuing violation complained of has ceased, an effective remedy must have the sole purpose of obtaining recognition and reparation of the alleged violation, assuming it has been established (Bouhamla v. France (dec.), No. 31798/16, § 38, 25 June 2019, and Dessources v. France (dec.) [committee], no. 11125/15, 20 October 2020). It considers that the State's action for liability, on account of its failure to implement the right to emergency shelter, has reasonable prospects of success and that it must therefore be exercised, even though, in view of its purely compensatory nature, it is effective only once the applicant has been accommodated, after his application had been lodged with the Court (see, to that effect, Dessources, cited above).

169. In the present case, the continuous violation complained of by the applicants ceased from their accommodation on 24 (M.K. and Others), 25 (A.D. and Others) and 27 July 2018 (I.K. and Others) (see paragraphs 24, 51 and 75 above). The Court concludes that they should have brought an action for State liability before the administrative courts, in order to seek compensation for the damage they allege to have suffered as a result of the period during which they were homeless, even though it would have proved effective only after their respective applications had been lodged with the Court.

 

170. In these circumstances, the Court considers that the complaint under Article 3 of the Convention must be rejected for failure to exhaust domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

IV. ARTICLE 39 OF THE RULES OF PROCEDURE OF THE COURT

 

171. The Court considers that the applicants' situation has changed since the interim measures were issued and that the applicants do not appear to be requesting the continuation of those measures.

 

172. Consequently, it decides to lift those interim measures.

 

173. Under article 41 of the Convention:

"If the Court finds that there has been a violation of the Convention or its Protocols, and if the domestic law of the High Contracting Party permits only imperfectly erasure of the consequences of such violation, the Court shall, where appropriate, award the injured party just satisfaction."

 

 

174. Each family home seeks just satisfaction in the amount of 15,000 euros (EUR) in respect of non-pecuniary damage. They maintain that the distress experienced as a result of the lack of accommodation was aggravated by the refusal by the French administrative authorities to enforce the court decisions.

 

175. In these three applications, the Government considered that if the Court were to find that the French State had disregarded the articles of the Convention relied on by the applicants, those findings would amount to sufficient just satisfaction. In the alternative, referring to the Court's case-law, it considers that a sum of EUR 1,000 for each of the members of the applicant families would appear reasonable.

 

176. The Court considers that, having regard to the nature of the violation found in the present case, it is fair to award M.K. and his daughters S.K., E.N. and S.N. a total sum of EUR 5 000, A.D., E.D. and their children S.D. and J.D. a total sum of EUR 5 000 and I.K., T.L. and their daughter V.K.

 

177. In each of the Applications, the applicants claim EUR 3,600 in respect of costs and expenses incurred in the proceedings before the Court and request that these sums be paid directly to their counsel. They highlight the technicality of the written documents, their volume and the urgency in which they had to be produced, in particular for requests for interim measures.

 

 

179. According to the Court's case-law, an applicant may obtain reimbursement of his costs and expenses only in so far as they are established, their necessity and the reasonableness of their rate.

 

180. In the present case, the Court is of the opinion that the three applications were defended by a single counsel and have a number of similarities. In these circumstances, taking into account the documents in its possession and the above-mentioned criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 8,000 for the proceedings before it, from which it will be necessary to deduct the one-off sum of EUR 850 paid on 27 May 2019 for these three cases by the Council of Europe by way of legal aid. That sum is to be paid directly into the bank account of the applicants' representative (see Khlaifia and Others v. Italy [GC^{], no}. 16483/12, § 288, 15 December 2016).

ON THOSE GROUNDS, THE COURT, ACTING UNANIMOUSLY,

 

 

 

4. Decides to lift the interim measures indicated to the Government under Rule 39 of the Rules of Procedure on 24 July 2018 for applicants M.K. and others, on 25 July 2018 for applicants A.D. and others and on 26 July 2018 for applicants I.K. and others;

 

 

i. a total sum of EUR 5 000 (five thousand euros) to M.K. and his daughters S.K., E.N. and S.N. (application no. 34349/18), a total sum of EUR 5 000 (five thousand euros) to A.D., E.D. and their children S.D. and J.D. (application^no. 34638/18) and a total sum of EUR 5 000 (five thousand euros) to I.K., T.L. and their daughter V.K. (application^no. 35047/18), plus any amount that may be due on these sums by way of tax, for non-pecuniary damage;

ii. the sum of EUR 7,150 (seven thousand one hundred and fifty euros), jointly with the applicants, into the bank account of their representative, plus any amount which may be payable out of that sum by way of tax by the applicants, for costs and expenses;

 

6. Rejects the remainder of just satisfaction claims.

Done in French, and communicated in writing on 8 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Procedure.

                       

Victor Soloveytchik Georges Ravarani
Registrar President

 

 

 

ANNEX

List of requests