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THE FACTS

A.  The circumstances of the case

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

The applicant is a Senegalese national who was born in 1951 and lives in Dakar (Senegal). She was initially represented before the Court by Mr D. Cahen, a lawyer practising in Paris, and is now represented by Mr S. Foreman, likewise a lawyer practising in Paris.

The applicant was a member of (and a spokeswoman for) a group of aliens without residence permits who in 1996 decided to take collective action to draw attention to the difficulties they were having in obtaining a review of their immigration status in France.

Their campaign, which received widespread coverage in the press, culminated with the occupation of St Bernard’s Church in Paris on 28 June 1996 by a group of some two hundred illegal immigrants, most of whom were of African origin. Ten men within the group decided to go on hunger strike. The applicant’s daughter joined her mother as one of the occupiers of the church. The movement, known as the “St Bernard sans papiers1” movement, was supported by several human-rights organisations, some of whose activists decided to sleep on the premises in a show of solidarity with their predicament.

On 22 August 1996 the Paris Commissioner of Police signed an order for the total evacuation of the premises. It was made on the grounds that the occupation of the premises was unrelated to religious worship, there had been a marked deterioration in the already unsatisfactory sanitary conditions, padlocks had been placed on the church exits and there were serious sanitary, health, peace, security and public-order risks.

More specifically, the order read as follows:

“The director of the Paris Mobile Emergency Medical Service (SAMU) was given responsibility on 17 July 1996 for ensuring day to day care of the hunger strikers and the parish priest has been reminded of the health hazards to which the occupants were exposed by the precarious living conditions as also of the need to allow unrestricted access to the emergency services.

The World Doctors (Médecins du Monde) organisation, which offers continuous medical assistance in the church, has made public alarming information on the very serious consequences of this hunger strike for the health of those concerned at the expiration of the medically critical period of forty days.

On the basis of the provisions of Article 223-6 of the Code of Criminal Procedure, the ten hunger strikers were evacuated on 12 August 1996, solely in order for the men to be given appropriate medical check-ups in hospitals in Paris.

The men returned to the aforementioned church of their own accord and immediately declared their intention to pursue their action.

Since 28 June 1996 there has been a marked deterioration in the already unsatisfactory sanitary conditions, the available sanitary equipment being totally inadequate for the long-term use of the premises as a collective shelter.

The number of people present on the premises has grown considerably during the last few days, and this has led to incidents in the immediate vicinity and notably on the public highway.

Such incidents create a risk of behaviour that may result in public order disturbances.

The various movements concerned have erected barriers on the public highway, across rue Saint-Bruno at the junctions with rue Saint-Luc and rue Jérôme l’Ermite. The barriers obstruct the highway, hindering the passage of ordinary traffic and of emergency vehicles.

The church doors and various exits are kept closed, and in some cases padlocked, to enable a filter system to be operated at the only remaining entrance that is permanently accessible, and a barricade formed of chained together barriers has even been placed between the enclosure railings and the north entrance to the church chancel. These installations constitute a major hazard should an emergency evacuation of the persons present inside the building become necessary.

These activities and movements are totally unrelated to religious worship, which is the exclusive use to which this public building may be put under the law of 9 December 1995.

It follows from the matters noted above that the current situation represents a serious sanitary, health, peace, public-security and public-order risk...”

The following morning the police carried out the evacuation. The police officers arrived at the scene at 6.30 a.m. and set up a checkpoint at the church exit to verify, on the basis of Article 78-2, subparagraphs 1 and 3, of the Code of Criminal Procedure and Article 8, subparagraphs 2 and 3, of the Ordinance of 2 November 1945, whether the aliens evacuated from the church had documentation authorising them to stay and circulate in the territory. The police entered the church at 7.56 a.m.

All the occupants of the church were stopped and questioned. Whites were immediately released while the police assembled all the dark-skinned occupants, apart from those on hunger strike, and sent them by coach to an aliens’ detention centre at Vincennes. Orders were made for the detention and deportation of almost all of those concerned. More than a hundred were subsequently released by the courts on account of certain irregularities on the part of the police, which even extended to making false reports regarding the stopping and questioning procedure.

At 8.20 a.m. a police officer asked the applicant as she was leaving the church for documentary evidence that she had leave to stay in France, but she was unable to produce any. The applicant had attended the Paris Police Commissioner’s Office on 5 June 1996 but on 17 July 1996 had been refused leave to remain in France on the ground that she did not satisfy any of the conditions laid down by the Ordinance of 2 November 1945 for the issue of a residence permit and that there were no personal or family reasons justifying her being granted leave to remain on humanitarian grounds. She had been invited to leave French territory within one month after receipt of notification of the Commissioner of Police’s decision.

At 9.55 a.m. the applicant was taken into custody and informed of her rights pursuant to Articles 63-2 and 63-4 of the Code of Criminal Procedure. The measure was deemed to have taken effect at 7.56 a.m., when she was stopped. The applicant refused to speak throughout her period in custody. At 8.15 p.m. on 23 August the Senior Deputy Public Prosecutor at the Eighth Division of the Paris Public Prosecutor’s Office instructed the police officers to bring the applicant before him, with the case file as it stood.

At 1.30 p.m. on 24 August 1996 the applicant appeared before the Paris Criminal Court under the “immediate summary trial” procedure. She was accused of having “entered and stayed in France without being in possession of the documents or visas required by the rules” and was sentenced to two-months’ imprisonment, suspended. The Criminal Court held:

“The occupation of a place of worship ... over a period of several weeks, ... in order to contest their immigration status and create a movement in their favour, in itself constitutes an emergency justifying the administrative authority’s decision to expel them.

The presence in St Bernard’s Church of several hundred people for a period of several weeks claiming, through public statements made by individuals or through spokespersons representing them, status as, in their own words, aliens without residence permits or papers, constituted grounds for suspecting that those concerned had committed offences under the immigration rules such that the verification of their identity pursuant to Article 78-2 was justified.

However, since a large number of people were stopped at the same time and refused to disclose their identities, the police were not able to carry out an immediate identity check. The fact that the identity check was not carried out when they were first stopped, but within what, given the practical contingencies inherent in an operation of that size, was a reasonable period thereafter, does not render the proceedings defective.

Regard being had to the large number of persons stopped and the circumstances in which the operation was conducted, the defendant was notified of her rights within a reasonable time...”

On 23 January 1997 the Paris Court of Appeal, on appeal by the applicant, upheld the sentence and added an order excluding her from French territory for three years. In addition, it held in its judgment:

“The occupation of a place of worship by approximately three hundred individuals over several weeks, in order to create a movement in their favour and to contest their immigration status, constitutes an emergency that justified the administrative authority making an expulsion order without making a prior application to the courts.

The occupiers of the premises continued their hunger strike for almost forty days and the living conditions of those concerned continued to deteriorate.

The scale of the demonstrations over several weeks, with barriers being used to obstruct the highway and hinder the passage of vehicles, constituted a risk for security, sanitation, the health of the hunger strikers and public order that justified urgent measures being taken to put an end to the disturbances.”

On 4 June 1998 the Court of Cassation dismissed the applicant’s appeal on points of law on the following grounds:

“In the proceedings before the courts below, in which Madjiguène Ndourit, a Senegalese national, was accused of illegally entering and staying in France, the accused duly challenged the lawfulness of the order issued by the commissioner of police, without a prior court order, for the evacuation of the church occupied by the accused and several other persons, which evacuation was followed by police identity checks that revealed that the demonstrators were illegal immigrants.

In these circumstances, the reasons which the courts below relied on – unnecessarily – in dismissing her objection cannot serve as a basis for complaint by the appellant, since, even if she had proved that the administrative act referred to above was unlawful, it would have had no bearing on the outcome of the criminal proceedings.”

B.  Relevant domestic law

Article 111-5 of the Criminal Code provides:

“The criminal courts shall have jurisdiction to interpret general or individual administrative decisions or regulations and to determine their lawfulness if the outcome of criminal proceedings pending before them depends on their so doing.”

Article 78-2, subparagraph 1, of the Code of Criminal Procedure reads as follows:

“Senior police officers and ordinary police officers acting on the orders of senior police officers who are accountable for their actions,... may invite any person to prove his or her identity by any means if there are grounds for suspecting that he or she:

(i)  has committed or attempted to commit an offence;

(ii)  is preparing to commit a serious crime (crime) or other major offence (délit), may be able to provide information that will assist in the investigation of a serious crime or other major offence, or is wanted by a judicial authority.”

Article L. 2512-13 of the General Code of the Territorial Authorities reads as follows:

“In the City of Paris the Commissioner of Police shall have the powers and prerogatives conferred on him by the Ordinance of the Consuls of 12 Messidor, Year VIII, determining the functions of the Paris Commissioner of Police, by the amendments that have been made thereto, and by Articles L. 2512-7, L. 2512-14 and L. 2512-17.

However, in the circumstances set out in this Code and the Public Health Code, the Mayor of Paris shall be responsible for ensuring that public highways in the city are kept clean and tidy, for maintaining order at fairs and markets and, subject to the opinion of the Commissioner of Police, for all grants of parking permits to small traders and of permits or licences for erecting stalls on the public highway.

Further, in the circumstances set out in Article L. 2215-1, sub-paragraph 3°, and Articles L. 3221-4 and L. 3221-5 of this Code, the Mayor shall be responsible for ensuring the preservation of State property incorporated into the public property of the City of Paris. For the purposes of the application of these provisions, the power of substitution conferred on the State in the département shall be exercised, in Paris, by the Commissioner of Police.”

The relevant provisions of the Ordinance of the Consuls of 12 Messidor, Year VIII, which determines the functions of the Commissioner of Police of Paris, read as follows:

Section I – General provisions

“1.  The Commissioner of Police shall perform the functions set out hereafter, under the immediate authority of the ministers. He shall communicate directly with them about the matters for which their departments have responsibility.

2.  The Commissioner of Police may republish the administrative rules and regulations and issue orders to ensure that they are complied with.”

Section III – Maintaining law and order in the city

21.  The Commissioner of Police shall have responsibility for all matters concerning minor highways, save that an appeal will lie against his or her decisions to the Minister of the Interior.

22.  The Commissioner of Police shall secure liberty and security on the public highway and to that end shall have responsibility for preventing criminal damage to the public highway, for lighting, for ensuring that residents comply with their obligation to keep the area in front of their houses swept, and for arranging for squares and the perimeters of public gardens and buildings to be swept at the city’s expense...”

The relevant provisions of the Law of 30 June 1881 on Public Meetings provides:

“1.  Anyone may attend public meetings.

Public meetings may be held without prior permission subject to compliance with the conditions laid down in the following Articles...

6.  Meetings may not be held on the public highway; ...

8.  Every meeting shall have a board of at least three people. The board shall be responsible for maintaining order, preventing any breach of the law, ensuring that the meeting retains the character ascribed to it in the declaration, prohibiting any speech that is contrary to public order or morals or containing any incitement to commit an act constituting a serious crime (crime) or other major offence (délit)...

9.  ... the right to terminate a meeting shall not be exercised by the authority’s representative unless he or she is called upon to do so by the board or unless clashes or patently illegal acts occur.

10.  Any breach of the provisions of this Law shall be punishable by the penalties laid down for summary offences, without prejudice to any proceedings that may be instituted in respect of any serious crime or other major offence that may have been committed at the meetings.”

Sections 25, 26, 32 and 35 of the Law of 9 December 1905 on the Separation of Church and State read as follows:

Section 25

“Assemblies for the purposes of worship in premises belonging to or placed at the disposal of a religious association shall be open to the public. They shall be exempted from the requirements of section 8 of the Law of 30 June 1881, but shall remain under the supervision of the authorities in the interests of public order. Such assemblies may not take place until a declaration has been made, in the form required by section 2 of that Law, identifying the premises where they will be held...”

Section 26

“It is prohibited to hold a public meeting in premises habitually used as a place of worship.”

Section 32

“Anyone who prevents, delays or interrupts religious ceremonies by causing disturbances or disorder in the premises used for such ceremonies shall be liable to the same penalties.

Section 35

“A minister of religion guilty of making a speech or posting or distributing notices publicly in a place of worship that contain direct incitement to resist compliance with the law or the lawful acts of public authorities or are aimed at stirring up or rousing one group of citizens against the others shall be liable to two years’ imprisonment, without prejudice to the penalties for complicity if the incitement is followed by sedition, revolt or civil war.”

COMPLAINTS

1.  Relying on Article 5 § 1 (c) of the Convention, the applicant complained that she had been unlawfully deprived of her liberty. Firstly, she complained that when her identity was checked there had been no ground for suspecting that an offence had been committed. Secondly, she alleged that the Commissioner of Police’s order for the evacuation of the premises was illegal as, in the absence of an emergency, the authorities required a court order to act.

2.  Relying on Article 14 of the Convention, taken together with Article 5, the applicant alleged that she had been discriminated against as the decisive criterion for determining whose identity would be checked was the skin colour of those present in the church.

3.  Relying on Article 11 of the Convention, the applicant also alleged a breach of her right to freedom of peaceful assembly with other aliens for the purposes of denouncing their treatment. The interference with her right was not prescribed by law (as the evacuation order was unlawful), and was neither justified by a legitimate aim, nor proportionate.

THE LAW

1.  The applicant alleged a violation of Article 11 of the Convention, which provides:

Article 11

1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

(a)  The Government pleaded firstly a failure to exhaust domestic remedies in that the applicant had not applied to the administrative courts – which were the only courts with jurisdiction – for an order quashing the Commissioner of Police’s order for the evacuation of the premises that had brought the “assembly” in issue to an end. The fact that the applicant had raised the issue of the legality of that order before the ordinary courts could not alter the fact that she had failed to exhaust domestic remedies. The ordinary courts had had no jurisdiction in the instant case to interpret the evacuation order or to determine whether it was lawful, since that issue was immaterial to the verdict in the criminal proceedings. The present case did not come within Article 111-5 of the new Criminal Code. The applicant had not been prosecuted for illegal occupation of the church, but for staying on French territory without leave. The criminal courts had therefore had no jurisdiction to determine the lawfulness of the administrative act concerned. Indeed, the Court of Cassation had so held in its judgment on the applicant’s appeal.

In addition, the applicant had at no stage argued that her freedom of assembly had been infringed. The only reason she had contended before the ordinary courts that the evacuation order was unlawful was to show that she had been stopped unlawfully. At first instance, the applicant’s argument had been that the Commissioner of Police’s decision to evacuate the church without a court order could not have been lawful since he was only empowered to make such an order in the event of an emergency and there had been none in the instant case. That procedural point had subsequently been pleaded before both the Court of Appeal and the Court of Cassation. On appeal, the applicant had also argued that the order was defective for breach of authority in that it had allegedly been based on public-order considerations when its real aim had been the arrest and deportation of the “sans papiers”.

Lastly, as regards the complaint under Article 14 of the Convention, the Government said that the applicant had at no stage alleged that she had been discriminated against on racial grounds when her identity was checked. At the very most, she had argued that the provisions of Article 78-2, subparagraph 3, of the Code of Criminal Procedure had been infringed in that there had been no grounds for suspecting her of an offence that would have justified her identity being checked. At no stage, therefore, had she maintained that the identity check had been performed solely because of the colour of her skin.

The applicant maintained that she had had no interest in applying to the administrative court, as any such application would have been purely symbolic and devoid of any practical effect. On the other hand, she had been perfectly entitled to challenge the validity of the evacuation order in the ordinary court before which she had appeared. She stressed that there had been an indisputable link between her arrest and the decision to put an end to the assembly in the church. It was the settled case-law of the domestic courts that the court responsible for deciding the fate of an alien stopped in such circumstances had jurisdiction to determine the lawfulness of the entire chain of the administrative acts that had led to the alien’s appearance before it. A finding by the ordinary court that the evacuation was unlawful would ipso facto have rendered, in turn, the police officers’ entry into the church and the identity checks unlawful and the subsequent judicial proceedings null and void. Indeed, in two judgments delivered on 29 March 1996 and 12 November 1997 following the evacuation of other “sans papiers” from the Japy Gymnasium and St Bernard’s Church, the Paris Court of Appeal and the Civil Division of the Court of Cassation had agreed to examine the legality of the evacuation procedure.

The applicant also alleged that by challenging the evacuation order she was in essence challenging the violation of her freedom of assembly, as the actual wording of the evacuation order showed that its aim had been to break up an assembly. Lastly, with regard to Article 14, the applicant said that the lack of any reference in the Criminal Court’s and the Court of Appeal’s decisions to her complaint that the identity checks had been performed in a discriminatory manner did not mean that that argument had not been raised before them, as the notes taken at the hearing by the clerk to the Criminal Court showed.

The Court reiterates that the only remedies Article 35 § 1 of the Convention requires to be exhausted are those that are available and sufficient and relate to the breaches alleged (Iatridis v. Greece [GC], no. 31107/96, ECHR 1999-II, § 47). Further, that rule must be applied with some degree of flexibility and without excessive formalism; it is sufficient that the complaints intended to be made subsequently in Strasbourg should have been raised, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law, before the national authorities (Fressoz et Roire v. France [GC], n°29183/95, ECHR 1999-I, § 37).

The Court agrees with the Government that the Commissioner of Police’s order of 22 August 1996 for the evacuation of the church could have been challenged in the administrative courts. However, by the morning of 23 August it had already been executed, such that the administrative court would probably have held that the application had become devoid of purpose and did not need deciding. The same reasoning consequently applies to the complaint under Article 14.

Further, the Court notes that by arguing that the evacuation order issued by the Commissioner of Police was unlawful, the applicant had alerted the relevant courts to the possibility that her right to freedom of assembly had been violated. Indeed, this is apparent from the judgments of both the Criminal Court, which held that the evacuation was justified by the existence of an emergency, and the Court of Appeal, which held that the scale of the demonstrations and the risks for security, sanitation, the health of the hunger strikers and public order justified putting an end to the disturbances.

Consequently, the Government’s objection of a failure to exhaust domestic remedies must be dismissed.

(b)  As regards the merits of the complaint, the Government maintained that the applicant had taken part in an event that had been organised in disregard of the exclusively religious user of the building in which it was held with the aim of defending a deliberate breach of the statutory rules applicable to immigration in France. The assembly was blatantly illegal in two respects. Firstly, it contravened section 8 of the Law of 30 June 1881, which prohibited any speech at a public meeting inciting the commission of a serious crime (crime) or other major offence (délit). Secondly, it contravened the law of 9 December 1905 on the Separation of Church and State, which laid down that religious buildings were to be used as places of worship to the exclusion notably of political events or any event that might disturb religious ceremonies. Article 11 did not entail a right for assemblies aimed at legitimising the commission of an offence to be organised in a place where only religious services were permitted.

In the alternative, the Government alleged that the interference had been justified under the second paragraph of Article 11. Evacuation was a measure prescribed by law, namely the Ordinance of the Consuls of 12 Messidor, Year VIII, and Article L. 2512-13 of the General Code of the Territorial Authorities, which conferred full powers on the Commissioner of Police of Paris to maintain order. In addition, the aim of the measure had been to protect the health and security of, primarily, the people present in the church who were at serious risk, some because they were on hunger strike and all because of the living conditions. The measure was also intended to maintain public order and prevent offences from being committed. Lastly, the measure had been proportionate to the aims pursued, as the applicant was in breach of the statutory immigration rules, an offence she acknowledged having committed, even though she had already received an invitation to leave the territory.

The applicant contested, firstly, the Government’s allegation that there had been no interference with the right guaranteed by Article 11 § 1. She said that while French law contained provisions making it an offence for aliens to stay in France without leave, it did not contain any provision prohibiting people from calling for the immigration status of illegal immigrants to be put in order and of assembling for that purpose. Article 11 § 1 did not make freedom of peaceful assembly conditional on the purpose of the assembly being wholly and absolutely in compliance with the law. It did not prohibit people assembling to call for changes to the law. Furthermore, there was no provision entitling the State to prohibit peaceful assemblies being held in a church. The reason why the Commissioner of Police had signed an order for the evacuation of the church was that he had been instructed by the Government, not the church authorities, to do so. Neither section 26 nor section 32 of the Law of 1905, on which the Government relied, could justify in law the violation of the applicant’s right to freedom of assembly. The former provision only prohibited assemblies, inter alia in a church, of people whose common preoccupation could be described as political. The latter provision could not be applicable, as the occupation of the church had not at any stage prevented any religious services being held.

Further, the evacuation measure did not satisfy the conditions laid down by paragraph 2 of Article 11.

Firstly, it was not prescribed by law. Taken together, the provisions relied on by the Government, namely Article L. 2512-13 of the General Code of Territorial Authorities and the Ordinance of the Consuls of 12 Messidor, Year VIII, showed that the Commissioner of Police had responsibility for enforcing regulations and maintaining public order in Paris. He had no authority to evacuate a church – a building for which religious institutions had responsibility – and no one, in particular the parish priest, had requested any intervention on his part. In the absence of any details about the type of restrictions that were authorised – their aim, nature and how they were to be supervised – the wording of those provisions could not be regarded as enabling members of the public to know what was permissible conduct.

Secondly, the measure in issue had not pursued a legitimate aim, as it was common knowledge that the evacuation had been decreed by the President of the Republic and the Prime Minister to thwart a democratic and peaceful challenge to the Government regarding the fate of individuals faced with the authorities’ refusal to put their immigration status in order.

Lastly, the measure had not been necessary in a democratic society, as it was disproportionate to the aim pursued. The applicant contested the grounds for the evacuation set out in the Police Commissioner’s order. The concerns for the health of the ten hunger strikers did not justify breaking up an assembly of three hundred people. Moreover, neither the parish priest nor the occupants of the church had complained about the inadequacy of the sanitary equipment or the deterioration in the sanitary conditions. Nor had any disturbances been witnessed in the vicinity of the church or on the public highway. Had any disturbances occurred, the police could have intervened to restore order without having to evacuate the church. Lastly, it was not for the Commissioner of Police, a secular authority in a secular State, to take the place of the Catholic hierarchy to secure compliance with the so-called exclusively religious user of the building.

The Court considers, in the light of the parties’ submissions and the evidence before it, that the complaint raises serious issues of fact and law under the Convention that cannot be resolved at this juncture and the determination of which requires an examination of the merits. The Court concludes, therefore, that this complaint cannot be declared manifestly ill-founded. No other ground for declaring it inadmissible has been established.

2.  The applicant also alleged a violation of Article 5 § 1 of the Convention, taken by itself and together with Article 14 of the Convention. These Articles read as follows:

Article 5 § 1

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;...

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government maintained that the complaint of a violation of Article 5 § 1 of the Convention was manifestly ill-founded. They affirmed that the criminal courts to which the applicant had made her applications, namely the Paris Criminal Court and the Court of Appeal, had held that Article 78-2 of the Code of Criminal Procedure had been complied with in the instant case, as there had been grounds for suspecting that an offence of overstaying had been committed, contrary to the Ordinance of 2 November 1945 governing the Conditions of Entry and Stay of Aliens in France. They said that it was not for the Court to verify the domestic courts’ application of the domestic law unless that interpretation or application was arbitrary. In the instant case, it was recognised that the applicant and the foreign nationals occupying St Bernard’s Church had themselves publicly acknowledged that they were in breach of the statutory immigration rules. That statement was enough to persuade any objective observer that both they and the applicant may have committed an offence, as was borne out by the fact that she was ultimately convicted for overstaying.

In the Government’s submission, two types of consideration had been taken into account in the decision to carry out identity checks. Neither had been related to the applicant’s racial origin. Firstly, the authorities had already been alerted by earlier events to the fact that a large number of the aliens who had been evacuated were illegal immigrants and identity checks were warranted on that ground alone. In addition, the applicant had emerged from the church where people who had publicly admitted to not being in possession of a residence permit had taken refuge. The applicant’s conduct at the material time by itself gave sufficient cause for suspecting her of having committed an offence and justified the identity check. Ultimately, the applicant’s identity had been checked because the authorities had been made aware by her own prior statements and actions that she was an illegal immigrant. The applicant had been a spokeswoman for the “sans papiers” and was known for her high profile action in that sphere.

In the applicant’s submission, the Government’s observations had not answered her argument that the decision to evacuate the church was unlawful and constituted not only a condition precedent to the coercive measures that followed but also the basis for them. The domestic law had, therefore, not been complied with.

The applicant said that the chief superintendent who had led the operation had personally signed a large number of the reports on the identity check procedure, which were worded as if he had carried out the checks in person. The reports were strictly identical for everyone who had undergone an identity check and had been drawn up after the checks had been carried out. The police officers had been invited to check the identity of everyone “who might be one of those” already known as having publicly stated that they were “sans papiers”. However, no room had been set aside on the pre-printed reports to enable the police officers to explain why a given person appeared to the officer to be more “likely” than others to be a “sans papiers”. The Government’s argument that the identity checks had been justified by the fact that it was common knowledge that the persons assembled in the church had publicly admitted their status as “sans papiers” did not explain why only “blacks” had had their identities checked while “whites” had been shown to the exit.

Lastly, as regards the “evidence” which the Government maintained had led to the applicant’s identity being checked, the applicant said that neither the constable who had stopped her at 8.20 a.m., nor the doctor who had examined her at 4.15 p.m., nor the court service responsible for establishing identity had been aware of her identity, since the report drawn up by the latter at 5.55 p.m. confirmed that the attempts to identify “Mrs X, aged about thirty, of African appearance” had failed. She had not been identified until 8 p.m. At 8.20. a.m., however, which was the relevant time so far as the Court was concerned, neither her gender or age, nor the fact that she had been in the church, could explain why she had been stopped. It followed that there had been no reason, apart from the colour of her skin, for the applicant’s identity to be checked.

The Court reiterates its settled case-law that the “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 § 1 (c). Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will however depend upon all the circumstances (see the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, § 32). The Court must therefore determine whether the essence of the guarantee afforded by Article 5 § 1 (c) remained intact in the instant case.

The Court notes that the applicant herself stated in her application that she was both a member and the spokeswoman of a group of aliens from various African countries who had settled in France without residence permits. In 1996 the group had decided to undertake collective action that took the form of occupying various buildings in Paris for several days, including St Bernard’s Church where the applicant was arrested. She asserted that the group’s aim had been to invite the authorities to re-examine the immigration status of its members more attentively. The members of the group in fact formed a majority of the occupants of St Bernard’s Church, and had no residence permits.

On 22 August 1996 the authorities decided to evacuate the church and to stop those persons who, by their own admission, were in breach of the Ordinance of 2 November 1945 governing the Conditions of Entry and Stay of Aliens in France.

In these circumstances, the Court considers that, for the purposes of Article 5 § 1 (c), the relevant authorities had reasonable grounds for suspecting the applicant of an offence when they arrested her and that the essence of the guarantee afforded by that Article remained intact in the instant case.

It follows that this part of the application is manifestly ill-founded and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention.

As to the applicant’s complaint under Article 5 taken together with Article 14 of the Convention, the Court notes that the system set up at the church exit for checking identities was intended to ascertain the identity of persons suspecting of being illegal immigrants. In these circumstances, it cannot conclude that the applicant was subjected to discrimination based on race or colour.

It follows that this part of the application must also be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention.

 

For these reasons, the Court unanimously,

Declares the complaint under Article 11 of the Convention admissible, without prejudging the merits of the case.

Declares the remainder of the application inadmissible.

S. Dollé W. Fuhrmann 
 Registrar President

1.  Immigrants without valid immigration papers.


cisse v. france DECISION


cisse v. france DECISION