AS TO THE FACTS
Both applicants are Cameroonian nationals and live in Douala. The first applicant, Mr M.A., was born in 1977 and the second applicant, Mr M.M., in 1978.
They are represented before the Court by Mr S. Foreman of the Paris Bar (whose office is their address for service), and by Mrs S. Brunet of the Poitiers Bar.
A. The circumstances of the case
The facts of the case, as presented by the parties, can be summarised as follows.
On an unspecified date, when the “Roland Delmas” was in the port of Douala, the applicants stowed away on it. They were discovered by the crew at about 10 a.m. on Thursday 29 May 1997 when the ship was putting in to the French port of La Pallice, La Rochelle. Having been informed of the situation by the ship’s captain, the head of the départemental Immigration Control and the Prevention of Illegal Immigrant Labour Department in La Rochelle (SDCILEC) instructed the captain to hold the applicants on board while the ship was in port and during “any other calls at French ports”.
At 6.30 a.m. on 30 May 1997 the “Roland Delmas” left La Pallice for Le Havre. It was scheduled to call at Dunkirk on 31 May and to leave France the same or the following day bound for the Netherlands.
At 10.30 a.m. on 30 May the applicants lodged an application with the President of Poitiers Administrative Court under Article L. 10 of the Code of Administrative Courts and of Administrative Courts of Appeal for a provisional stay of execution of the decision to confine them on board the “Roland Delmas”. They submitted that their complaint was urgent and, relying inter alia on Articles 5 § 4 and 13 of the Convention, sought an injunction requiring both the Prefect of the Charente-Maritime département and the head of the SDCILEC to allow them to disembark and to proceed to the waiting zone. On the same day they lodged an application with the Administrative Court to have the decision for their confinement quashed and for an order for their admission to the waiting zone.
At 6.30 a.m. on 31 May 1997, when the “Roland Delmas” was at Dunkirk, the authorities ended the confinement measure. The applicants were refused leave to enter French territory and an order was made for their placement in the waiting zone at the port of Dunkirk. That order was renewed by the administrative authorities on 2 June and upheld by the Vice-President of the Dunkirk tribunal de grande instance on 3 June.
On 4 June 1997 the Vice-President of Poitiers Administrative Court made the following order on the application for a provisional stay of execution:
“… in view of developments, the decision requiring [the applicants] to be held on board while the ship was docked at La Pallice and during ‘any other calls at French ports’ – a decision which, incidentally, was effective only while the ship was at La Pallice – is no longer enforceable. Accordingly, it is no longer necessary to decide either the application for a provisional stay of execution or, for the same reasons, the application for an injunction requiring the Prefect of the Charente-Maritime département to allow the applicants to disembark; …”
On 2 July 1997, Poitiers Administrative Court set aside that ruling on the following grounds:
“Article 35 quarter of the Ordinance of 2 November 1945 [on the conditions of aliens’ entry into and residence in France], as amended by Laws nos. 92-625 of 6 July 1992 and 94-1136 of 27 December 1994, provides that ‘an alien who arrives in France by rail, sea or air and who (a) is refused leave to enter French territory or (b) applies for asylum may be held in a waiting zone ... for the time strictly necessary to arrange his departure...’
Although the authorities maintained that those provisions merely gave them a discretion to place aliens who had been refused leave to enter French territory in a waiting zone and that they retained the right to prevent stowaways disembarking provided that their enforced stay on board the vessel did not amount to a greater degree of constraint than that which would arise on their placement in a waiting zone, the provision cited above, as made clear by the preparatory work on the law of 6 July 1992, shows firstly that the procedure established by Article 35 quarter, namely placement in a waiting zone, is the only course of action available to the authorities when they decide, as they are entitled to do by Article 5 of the Ordinance cited above, of their own motion to give effect to a decision, even an implied decision, to refuse leave to enter French territory by holding the alien concerned against his will in a specific place, and, secondly, that forced confinement on board ship would in any event amount to a significantly greater degree of constraint than that arising on placement in a waiting zone as, in particular, it deprives the alien concerned of the safeguards laid down in paragraphs II to VI of Article 35 quarter. Consequently, the applicants’ submission that the decision of 29 May 1997 to confine them on board a vessel was unlawful and had to be quashed is founded...”
B. Relevant domestic law and practice
1. Extracts from the Administrative Courts and Administrative Courts of Appeal Code
Articles L. 9 and L. 10 of the Administrative Courts and Administrative Courts of Appeal Code provide respectively:
“… [The presidents of the administrative courts, presidents of the administrative courts of appeal, the Vice-President of the Paris Administrative Court and the presidents of the judicial benches of the administrative courts and the administrative courts of appeal] may…, by an order made after adversarial process, dismiss an application for a stay. They may, in any event, remit the case before the full court.
On an application to that end and after adversarial process, the president of the administrative court or the president of the ordinary court may make an order staying the execution of the administrative decision concerned for a maximum of three months if there is a danger that execution will entail irreversible consequences and reasonable grounds are made out in the request.
A provisional stay shall cease to be effective if the decision on the application for a stay is handed down before the period fixed by the judge has expired.”
2. Case-law of the Jurisdiction Disputes Court (Tribunal des conflits)
In a judgment of 12 May 1997 (Préfet de police de Paris v. tribunal de grande instance de Paris) the Jurisdiction Disputes Court (Tribunal des conflits) held as follows:
“… While a vessel was in a French port, the French immigration authorities decided to refuse two passengers of Moroccan nationality … leave to enter and held them on board the ship. The passengers … challenged their “confinement” on board before the urgent-applications judge of the Paris tribunal de grande instance and sought an injunction against the administrative authorities requiring them to allow them to disembark and to proceed to the waiting zone established by Article 35 quarter of the Ordinance of 2 November 1945. Considering that a flagrantly unlawful act (voie de fait) had been committed, the urgent-applications judge rejected the Paris Police Commissioner’s submission that he had no jurisdiction to hear the application.
Furthermore, by Article 136 of the Code of Criminal Procedure: ‘… in all cases involving deprivation of liberty of the individual, the conflict of jurisdiction can never be dealt with by the administrative authorities and the ordinary courts always have exclusive jurisdiction. The same shall apply to any civil proceedings based on facts amounting to a deprivation of individual liberty...’ These provisions, which provide an exception to the rule governing the separation of the powers of the administrative and judicial authorities ... cannot be construed as authorising the ordinary courts to obstruct the enforcement of decisions taken by the authorities unless the decision concerned amounts to a flagrantly unlawful act. The power to issue injunctions against the authorities rendering their decisions unenforceable is of the same nature as the power to quash or vary decisions made by the authorities in the exercise of their prerogatives as a public authority; that power is in the sole province of the administrative authorities except for those domains which, by their nature, are reserved to the judicial authorities. It follows from this that the provisions ... of Article 136 of the Code of Criminal Procedure cannot in the instant case serve as a basis for the giving the urgent-applications judge of the Paris tribunal de grande instance jurisdiction to hear the action brought by [the applicants].
Further, the provisions of Article 5 of the aforementioned Ordinance of 2 November 1945 show that the legislature has in principle given the administrative authorities the power to enforce deportation orders or orders refusing leave to enter made as part of the immigration-control process. Consequently, even supposing them to be unlawful, the measures taken in the instant case against [the applicants] were not manifestly incapable of being within the authorities’ powers. Accordingly, they cannot be regarded as amounting to flagrantly unlawful acts.
It follows from the foregoing that it was the administrative courts which had jurisdiction to hear the matter that came before the Paris tribunal de grande instance and that the question of jurisdiction was rightly raised by the Paris Police Commissioner...”
The applicants complained that the President of Poitiers Administrative Court had not ruled on their application for a provisional stay of execution of the decision confining them on board the “Roland Delmas” until 4 June 1997, despite the fact that it had been lodged at 10.30 a.m. on 30 May 1997 when the vessel was due to leave France on 31 May. They argued that as a result of the Jurisdiction Disputes Court decision in the case of Préfet de police de Paris v. tribunal de grande instance de Paris of 12 May 1997, they could not apply to the urgent-applications judge, and so had been victims of a violation of Articles 5 § 4 and 13 of the Convention.
The application was lodged with the European Commission of Human Rights (“the Commission”) on 30 May 1997 and registered on 5 February 1998.
Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was examined by the Court, pursuant to Article 5 § 2 of that Protocol.
On 30 March 1999, the Court decided to communicate the application to the Government, and invited them to submit written observations on its admissibility and merits.
The Government lodged their observations on 19 July 1999 and the applicants replied on 7 October 1999, after being granted an extension of time.
as to the law
1. The applicants complained that the President of Poitiers Administrative Court had not ruled on their application for a provisional stay of execution of the decision confining them on board the “Roland Delmas” until 4 June 1997, despite the fact that it had been lodged at 10.30 a.m. on 30 May 1997 when the vessel was due to leave France on 31 May. They argued that as a result of the Jurisdiction Disputes Court decision in the case of Préfet de police de Paris v. tribunal de grande instance de Paris of 12 May 1997, they could not apply to the urgent-applications judge, and so had been victims of a violation of Articles 5 § 4 and 13 of the Convention. Those provisions respectively read as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
“Everyone whose rights and freedoms as set forth in th[e] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
2. The Government maintained that the order for the applicants’ confinement on board the “Roland Delmas” had rapidly ceased to have any effect, namely at 6.30 a.m. on 31 May 1997, twenty hours after the application to the administrative court was made. Relying on the decision of the Commission of 5 May 1982 in the case of X v. the United Kingdom (application no. 9403/81, Decisions and Reports 28, p. 235), they argued that the rights to have the lawfulness of their detention decided “speedily”, as required by Article 5 § 4 of the Convention, was devoid of purpose in the instant case. In the alternative, they argued that, even if the order for their confinement on board was still effective when the Vice-President of Poitiers Administrative Court determined the applicants’ application under Article L. 10 of the Administrative Courts and Administrative Courts of Appeal Code (that is to say on 4 June 1997), it was indisputable that his decision would have been taken in accordance with the requirements of Article 5 § 4. Furthermore, the measure in question would not have amounted to deprivation of the applicants’ liberty, but to a mere restriction on it, as the applicants retained the right to travel to other countries on board the vessel. Lastly, the administrative courts would have ruled on the issue of the lawfulness of the order for confinement rapidly. In short, there had been no breach of Article 5 § 4.
3. The applicants replied that an order confining persons on board a ship amounted to deprivation of liberty within the meaning of Article 5 § 4 since the alien concerned was forced to stay on board the vessel and could not “choose” to travel to the territory of any given State. They submitted further that their confinement had begun at 10 a.m. on 29 May 1997, which meant that the length of the deprivation of liberty to be taken into consideration was forty-four, not twenty, hours. They added that, although in its decision in X v. the United Kingdom the Commission had established the principle that a person who was no longer effectively detained could not rely on Article 5 § 4, it had expressly stated that such persons retained the right to raise the issue of speediness. In the present case, the time which the Vice-President of Poitiers Administrative Court had taken to deliver his decision (on 4 June 1997) was manifestly excessive in the circumstances. In their submission, those circumstances meant that a particularly expeditious review of the issue of compliance with Article 5 § 4 was warranted. In that connection, the applicants essentially argued, first, that their confinement on board was manifestly unlawful and tantamount to unlawful imprisonment and potentially a violation of Article 3 of the Convention and, second, that the “Roland Delmas” was due to leave France at any moment for a destination over which no State had any control. Added to which, the remedy provided by Article L. 10 of the Administrative Courts and Administrative Courts of Appeal Code did not satisfy the requirements of Article 5 § 4 as it had no suspensive effect, did not enable a measure depriving a person of their liberty to be quashed solely on the ground that it was illegal, and was not readily available to persons confined on board a vessel. Furthermore, in the instant case, the applicants would not have been able to appear before the relevant judge. Lastly, the fact that a reform was under way to establish an effective urgent-applications procedure before the administrative courts constituted an admission of the shortcomings of the current procedures when it came to protecting freedoms.
The applicants maintained that if the Court held that the respondent State had not failed to comply with its obligations under Article 5 § 4 of the Convention, it should examine the application in the light of the provisions of Article 13 of the Convention.
4. The Court recalls, in the first place, that Article 5 § 4 of the Convention provides a lex specialis in relation to the more general requirements of Article 13 (see, among other authorities, the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1865, § 126). The present application must therefore be examined under Article 5 § 4.
That being so, the Court notes that the applicants were discovered towards 10 a.m. on Thursday 29 May 1997 when the “Roland Delmas” was coming into the French port of La Pallice, and that the immigration authorities instructed the captain to hold them on board while the ship was in the port and during “any other calls at French ports”. Since the case-law of the Jurisdiction Disputes Court (see the judgment of 12 May 1997, Préfet de police de Paris v. tribunal de grande instance de Paris, an extract of which appears above) prevented their making an application to the urgent-applications judge in the ordinary courts, they requested the administrative court (on 30 May 1997) to quash the order for their confinement on board and further applied (at 10.30 a.m.) for an order under Article L. 10 of the Administrative Courts and Administrative Courts of Appeal Code for a provisional stay of execution of the order for their confinement. That application was examined on 4 June 1997 (order of the Vice-President of Poitiers Administrative Court) and the confinement order was quashed on 2 July 1997 by Poitiers Administrative Court.
The authorities had nonetheless put an end to the confinement order by 6.30 a.m. on 31 May 1997, such that the applicants were effectively “detained” pursuant to the order in issue for only approximately twenty-one hours after their applications to the administrative court were made. Even supposing that the period to be taken into consideration under Article 5 § 4 began when the crew of the “Roland Delmas” discovered their presence – which would make the length of their “detention” on board the vessel approximately forty-four hours –, it is indisputable that that “detention” ended “speedily”. Bearing in mind that it is not for the Court to rule in abstracto as to whether, had that not been the case, the scope of the remedies available would or would not have satisfied the requirements of Article 5 § 4 (see the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, pp. 20-21, § 45), the Court concludes that the application is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the complaint inadmissible.
M.A. and M.M. v. FRANCE DECISION
M.A. and M.M. v. FRANCE DECISION