APPLIC AIION N' 37681/97 Jilah EL GUARTI v/FRANCE DECISION of 23 April 199S on the ddmissibility of the application Article 26 of the Convention a) The obligation to exhaust domestic remedies requires only that an applicant make notmal use of effective and sufficient remedies that is those capable of remedying the situation at nsiie b) Where an individual complains that his dt'poitation to a pailicular country would expose him to a \enou\ dani>et appeuh without suspensive effect cannot be consideied effective c) Where in Fianie an oidei foi a penon to he pcrmanenth excludedftom French ternioiy ts made by a Ci innnat Court and confirmed by a Court of Appeal and the Court of Cassation and •.•.here an application for discharge of such an exclusion Older made by a Coun of Appeal and confirmed by the Court of Cassation is dismissed, it has not been shown that anv remedy exists which would have the effect of suspending enfoicemenl of the exclusion aider in question d) Re^ardin^ the enforcemenl of an ordei foi a person to be permanently excluded from French ten itory, the point at which the six month period begins is not the dale of the Court of Cassation judgment dismissing the applicant's appeal on points of law against the decnion cnnfiinung the exclusion order, as thisjudgment cannot be considered as the final domestic decision which marks the start of the six month pel tod. gi\ en that the applicant s state of health deteriorated tonstdei ably after this judgment and that his expulsion y>ould make it impossible for him to be treated 126 THE F-VCTS The applicant is a Moroccan national bom in 1952 in Fez, and lives in a residential centre run by a voluntary association called "La balangoire" in Samt-Maurdes- Fosses He is represented before the Commission by Mr Pierre Mairat, a lawyer practising in Pans The facts, as submitted by the parties, may be summarised as follows The applicant, who was born with a single kidney, has suffered from diabetes since 1974 and is insulin-dependent He also has senous neuropathic and renal insufficiency problems He entered France lawfully in 1980 On 22 June 1987 Cambrai Criminal Court sentenced the applicant to a term of imprisonment and ordered that he should subsequently be deported and excluded from French territory for a period The applicant was deported to Morocco, but came back to France in 1990 On 29 October 1991 Cambrai Criminal Court convicted the applicant of drug trafficking, sentenced him to six years' imprisonment and ordered that he should subsequendy be deported and permanently excluded from French temtory On 2 April 1992 Douai Court of Appeal upheld the judgment On 20 May 1992, the applicant was provided with an insulin pump On 17 May 1993 the Court of Cassation dismissed his appeal on points of law On 20 July 1993 the applicant applied to Douai Court of Appeal to have the order excluding him from French territory set aside His request was dismissed on 2 November 1994 On 24 May 1994 a prison foutreachj worker from MRAP (Mouvement contte le lacisme et poui I'amitie entie le\ peuples - an organisation working to combat racism and promote friendship between peoples), petitioned tlie Ministry of Justice for the applicant to be pardoned, and applied to the Ministrv of the Intenor for the applicant to be granted leave to remain on humanitarian grounds, as an exceptional case On 9 June 1994, ADMEF {Action pout tes diuils des malades etrangers en France an organisation working on behalf of aliens in France with health problems) issued the applicant with a certihcate stating that they had taken up his case URMED (Urgence malades etiangeis en dungei another organisation working to help aliens in France with health problems) took over his case as from January 1995 On 20 March 1995 the Court of Cassation dismissed the applicant's appeal on points of law against the Douai Court of Appe<d's decision of 2 November 1994 127 In the course of 1995 the apphcants health deteriorated On 4 March 1996 ihe head of the immigration department of the Ministry of the Intenor informed URMED that the prefecture was dealing with the applicant s file and that he would be plated under a compulsory residence order On 31 December 1996 having served his sentence, he was taken to Choisy-le- Roi detention centre in order to be deported On (he basis of his medKdl hie and the fact that he was fitted with a catheter, the police officer in charge of the detention centre asked for him to be given a medical examination, which resulted in his being admitted lo hospital immediately and remaining there until 30 Apnl 1997, when a second attempt to deport him was made The applicant was taken to Orly but refused to board the plane The head of DICCILEC {the central directorate for immigration control and for the prevention of the employment of illegal immigrants) decided that the applicant should be given a medical examination The doctor who carried out this examination was of the opinion that the apphcants state of health was incompatible with his being deponed The pubhc prosecutor ordered him to be released In a letter of 26 September 1997 the health department of tlie Ministry ot Employment and Solidarity informed URMED that the only people with chronic renal insufftciencv whose medical expenses were covered in Morocco were members of mutual insurance SL hemes which applied only to very specific profesf,ional categories Moreover, although there were 50 or 60 dialysK machines in Morocco these were avdihible only to the very wealthy The applicam i,urrently receives treatment by AU *inih<.ial kidney several times a week COMPI 'VINIS The applicant complains that in view of the senousness of his state of health, deponing him from French territory would contravene Articles 2 and 3 of the Convention PROCEF0LN(;S KF^OR^ I'HP COMMISSION The application was introduLcd on 7 May 1997 and registered on 5 September 1997 On 19 September 1997 Ihe Commission decided to give notice of the application to the respondent Government inviting them to submit written observations on its admissibilitv and ments On the same date the Commission indicated to ihe Government under Rule 36 of Ihe Commission s Rules of Procedure that ii was desirable, in the mleresis of the parties and the proper conduct of the pi oceedings not to deport the appl icant before the 128 Commission had been able lo examine the application m greater detail The Commis sion extended the application of Rule 36 on 11 December 1997 and 22 January and 12 March 1998 The Government submitted their observations on 5 December 1997, after an extension of the time limit and the applicant replied on 12February 1998, also after an extension of the ume limit IHE LAW (Extract) The applicant complains diat, in view of his slate of health, deporting him from French temtory would amount to inhuman and degrading treatment, in violation of Article 3 of the Convention, as well as Article 2 of the Convention, which provides that everyone s right to life shall be protected by law Article 3 of die Convention provides as follows 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment The respondent Government submit, pnmanly, that the applicant has failed to respect the six month time-limit laid down in Article 26 of the Convention for introducing an application lo the Commission They submit that the final domestic decision was the Court of Cassation judgment of 20 March 1995, that is, 26 mondis before the applicant introduced his application to the Commission The applicant argues that the Governments objection that the application is out of time cannot be allowed in the present case He states that his complaint to the Commission concerns the execuuon of the order for him to be excluded from French temtory by deporting him to Morocco and not the exclusion order or the Court of Cassation judgment as such Furthermore, he points out that when he lodged his appeal on points of law he was not suffenng from renal insufficiency His state of health deteriorated m the course of 1995 and ihis delenoration is the cause of his having to undergo dialysis Tlie Commission finds that the applicant s complaint does concern the execution of the order for hmi tobe excluded from French lertiiory by deporting him to Morocco, where he would not be able to afford the extensive treatment his state of health now requires As the applicants health detenorated considerably in the course of 1995. and particularly after 20 March 1995 - the date of die Court of Cassation judgment - this judgment cannot be held to constitute Ihe hnai domestic decision in the present case It tollows that the Governments objection that the six month iime-limit was not observed cannot be allowed 129 The Government also submit that the applicant enjoys freedom on French temtory, that he has not been deported and that he cannot therefore claim to be a victim within the meaning of Article 25 of the ConvenDon If a fresh order for his deportation to Morocco was issued, he could challenge it in die Administrative Court Furthermore, the applicant could benefit from Section 25(8) of the Ordinance of 2 November 1945 (as amended), which provides that an alien suffering from a senous illness requiring medical treatment, the absence of which might have excepttonally senous consequences for him, cannot be deported from French temtory The applicant rejects this argument, pointing out that the Ministry of the Intenor has never promtsed not to execute the exclusion order and that at the time of the two attempts to execute this order, namely on 31 December 1996 and 30 Apnl 1997, it was the medical authorities who declared that his stale of health was incompatible with his being deported He points out that the protection afforded by Section 25(8) of the Ordinance of 2 November 1945 cited above is not relevant to the present case as it applies only to deportation or expulsion orders, and not to court orders excluding persons from French temtory An appeal to the Administrative Court against the decision designating the country to which the person is to be deported has no suspensive effect The applicant is therefore justified m asserting that he is under permanent threat of being deported The Commission recalls that the obligation to exhaust all domestic remedies requires only that an applicant make normal use of remedies that are likely to be effective and sufficient, that is those capable of remedying the situation at issue (see No 14992/89 Dec 7 6 90, D R 66, p 247) Where a person alleges that his expulsion would expose him to senous danger, appeals without suspensive effect cannot be regarded as effective (see No 10078/82, Dec 13 1284,DR 41.p 103.No 12461/86, Dec 10 1286 DR 51,p 258, Eur Coun HR. H L R v France judgment of 29 Apnl 1997, Comm Report 7 12 95. and No 30930/96, Dec 8 9 97, unpublished) In the present case, the action of the State authorities of which the applicant complains is the order for his pennanent exclusion from French temtory made by Cambrai Criminal Court on 29 October 1991, and confirmed by Douai Court of Appeal on 2 April 1992 The Commission also observes that on 20 July 1993 the applicant applied to Douai Court of Appeal to have the order for his exclusion discharged and that this application was dismissed on 2 November 1994 In a judgment of 20 March 1995. the Court of Cassation dismissed Ihe applicant's appeal on points of law 130 The Commission notes that the Government has not pointed to a remedy considered to be effective according to the generally recognised rules of law and capable of suspending the execution of the order permanendy excluding the apphcant from French lertitory This being the case, the Government's objection that domestic remedies were not exhausted must be dismissed 131