CEDH · CASELAW;CLIN;ENG — 17 janvier 2006

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France - 50278/99 Judgment 17.1.2006 [Section IV] Article 34 Hinder the exercise of the right of petition Hindrance of the right of individual application as a result of non-respect by the defending State of the measure indicated under Rule 39: violation   Article 3 Expulsion Expulsion to Algeria of an applicant suffering from hepatitis C and son of a “harki”: no violation   Article 8 Expulsion Expulsion to Algeria of an applicant who has close links with France: no violation   Facts : The applicant, an Algerian national and the son of a harki (Algerians loyal to the French during the Algerian War of Independence), moved to France with his parents in 1960, at the age of four. He has six brothers and sisters, who were born in France and all have French nationality. He also has a daughter born in 1983, and was married to a French national between 1989 and 1993.   He was diagnosed with chronic active hepatitis in 1994. In the 1980s the applicant was convicted on several occasions of drug trafficking, and an order was eventually made for his permanent exclusion from French territory. An appeal by the applicant against the exclusion order was dismissed in June 1996. On 11 August 1999 the prefect issued an order for his deportation to Algeria. An administrative appeal by the applicant against that decision and a request for asylum on his part were both dismissed. In the meantime, on 11 August 1999, the Court had decided, under Rule 39 of the Rules of Court, to request the French Government to refrain from deporting the applicant until 24   August, the date on which the Chamber dealing with the case was due to meet to examine the application. The French authorities agreed to stay execution of the deportation order until 16   August 1999 to allow a medical report to be prepared. However, on 19   August 1999 the applicant was deported to Algeria. On 13 December 2000 the administrative court set aside the deportation order, in view of the “exceptionally serious consequences” which the measure was likely to entail for the applicant’s health. The applicant, according to his lawyer, is unable to return to France owing to administrative barriers in both countries; according to the lawyer, his health is continuing to deteriorate and he is not receiving the medical treatment he needs. Law : Preliminary objections by the Government (failure to exhaust domestic remedies) – As the Government had not raised these issues at the admissibility stage, they were stopped from doing so now. Article 3 – The applicant had not proved that his illness could not be treated in Algeria. The fact that treatment would be less easy to obtain there than in France was not decisive for the purposes of Article 3. The Court pointed out that Article 3 set a high threshold of severity, in particular when the Contracting State could not be held directly liable for the damage caused to the applicant. In the circumstances, there was not a sufficiently real risk that the applicant’s removal to Algeria was incompatible with Article 3 on account of his state of health. As to the reprisals which the applicant might suffer in Algeria as the son of a harki , the mere possibility of ill‑treatment on account of the unsettled situation in a particular country was not in itself sufficient to give rise to a breach of Article 3, particularly as, with regard to this case, political changes were now under way in Algeria. Conclusion : no violation. Article 8 – The fact that the interference had been in accordance with the law and had pursued the legitimate aim of “the prevention of disorder or crime” was not in dispute. It therefore remained to be determined whether the exclusion order against the applicant had struck a fair balance between his right to respect for his family life on the one hand and the prevention of disorder or crime on the other. His conviction had been for drug trafficking, an area in which the Contracting States might be expected to take a very firm approach. However, the applicant’s ties to France also had to be taken into account. He had spent most of his life in France and all his family members lived there. In assessing whether he had a family life within the meaning of Article 8, however, it was necessary to refer back to the time when the impugned measure had become final, in this case the date in 1996 when the judgment dismissing the appeal against the exclusion order had been delivered. At that time, the applicant’s marriage had already been dissolved for more than three years. As for his daughter, who had been 16 years old at the time of his removal, the applicant had indicated only that he had “special ties” with her, without specifying the nature of such ties or the role he might have played in her life. Accordingly, despite the strength of the applicant’s ties with France, the Court of Appeal had been legitimately entitled to consider that ordering his permanent exclusion from French territory had been necessary for the prevention of disorder or crime. The impugned measure had therefore been proportionate to the aims pursued. Conclusion : no violation (unanimously). Article 34 – The consequences of failure by a respondent State to comply with the measures indicated by the Court under Rule 39 had been examined in the Mamatkulov and Askarov v. Turkey judgment of 4   February 2005, in which the Court had reiterated that the obligation not to hinder the effective exercise of the right of petition precluded any interference with the right of the individual effectively to present and pursue his or her complaint before it. In the present case the applicant’s removal to Algeria, despite the request made by the Court to suspend the measure, had irreversibly undermined the protection of the applicant’s rights under Article 3. Furthermore, as the applicant’s lawyer had lost touch with him in the meantime, the taking of evidence had been made more difficult. The applicant’s removal to Algeria had therefore hampered the examination of his complaints and had ultimately prevented the Court from affording him protection against potential violations of the Convention. As a result, the applicant had been hindered in the effective exercise of his right of individual petition as set forth in Article 34. Although at the time of his deportation the binding nature of the measures enacted under Rule 39 had not been stated explicitly, the Contracting States had already been bound by Article 34 and the obligations arising out of it. Conclusion : violation (unanimously). Article 41 – The Court awarded the applicant specified sums in respect of non‑pecuniary damage and costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes