ECHR judgment of 25 June 2020 in the case of Moustahi v. France (aplication No. 9347/14).
in 2014, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to France.
The case successfully dealt with an aplication about the administrative detention of the applicant's minor children, their deprivation of liberty and their removal to the Comoros, as well as the fact that the decision was clearly illegal, the administrative court rejected the first applicant on the grounds that the case was not urgent. The case involved a violation of the requirements of article 3, paragraphs 1 and 4 of article 5, article 8, article 13 of the Convention in conjunction with article 3 of the Convention for the protection of human rights and fundamental freedoms, as well as article 4 of Protocol No. 4 to the Convention.
CIRCUMSTANCES OF THE CASE
Mayotte is an overseas Department of France located in the Comoros. The events referred to in the present case occurred in 2013. The applicants are three residents of the Comoros: the father (the first applicant) and his two children (who were three and five years old at the time, unless otherwise indicated, the complaints were filed on behalf of the children).
The two children left the Comoros with 15 others on a ship bound for Mayotte, where their father legally resided. At 9: 00 they were detained on the high seas, and their names were entered in the order to return to the border issued against one of the adults of their group (M. A.). At 14: 00 they were detained administratively in the premises of the police Commissariat. Their father arrived at the scene, but was not allowed to see the children. At 16.30 M. A. and the children were put on a ferry in the direction of the Comoros.
An hour later, the children's father filed a complaint with the administrative court demanding that urgent measures be taken to stop the encroachment on the children's fundamental freedoms. Noting that the contested decision was "manifestly unlawful", the administrative court dismissed the first applicant on the grounds that the case was not urgent. The state Council also dismissed the first applicant's complaint, considering that he should have acted within the appropriate procedure provided for family reunification claims. In 2014, as part of this procedure, both children were issued a long-term visa.
Regarding compliance with article 3 of the Convention. (a) the Preliminary question of escorting and entrusting children to M. A. the Decision to entrust children to an adult in the context of managing migration flows was particularly important from the point of view of their interest (especially since, under French law, such a decision makes it possible for them to be administratively detained and subsequently expelled to a third state).
It was therefore for the French authorities to determine, to the extent possible, the nature of the relationship between the children and the adult to whom the authorities intended to entrust the children. In this particular case, where no identity document could be established with certainty, the authorities should have been particularly vigilant in order to avoid, as far as possible, the risk that the children would be entrusted to a person who had no rights over them.
French law provides for the possibility of appointing an ad hoc Trustee, whose duties include accompanying foreign minors who have been refused permission to enter the territory of France. However, according to third parties (including the Commissioner for human rights), there was a practice in Mayotte of arbitrarily attaching minors to persons unknown to them for the purpose of their administrative detention and subsequent removal to the Comoros. In fact, with one exception, none of the 43 children removed on the same day on the same ship bore the same surname as the adult to whom the child was entrusted.
In the present case, there is nothing to indicate that there was any previous relationship between the applicants and M. A.. Even if we assume that M. A. reported that he was accompanying the children, the fact remains that the French authorities did not take any steps to verify the validity of this claim before making the administrative detention of the children, although the names of the persons concerned were different: the protocols did not specify the nature of the relationship between the children and M. A., nor the possible questions that were asked in this regard. In addition, the issue was not reviewed even after the children's father appeared at the Commissariat and presented their birth certificates. In such a situation, it is impossible to accept that the person to whom the children were entrusted should have formally challenged this situation.
The court concluded that the two applicants were indeed "unaccompanied" minors and that they had been arbitrarily entrusted to M. A. without the purpose of ensuring their best interests, but only to be removed to the Comoros as soon as possible. The latter conclusion, while not decisive in itself, has implications for other complaints.
(b) Conditions of detention. The conditions of detention of the two children were the same as for adults detained at the same time: they were in a temporary detention center set up in the premises of the Commissariat, despite the fact that they were not accompanied by any of their family members. Apart from the fact that the children were entrusted to M. A., no adult was assigned to take care of them.
Given the great vulnerability associated with the young age of children and the fact that they were thus left to their own devices, this was sufficient, regardless of the length of their detention, to conclude that administrative detention had caused them stress and anxiety and particularly traumatic consequences for their psyche.
The case involved a violation of the requirements of article 3 of the Convention (adopted unanimously).
(c) conditions Of removal to the Comoros. (i) Removal of two children. It should be noted that there was a lack of preparation, accompanying measures and guarantees for the contested removal: the children went to the Comoros alone, unaccompanied by adults, with the exception of M. A., to whom they were arbitrarily entrusted; the French authorities did not make even the slightest effort to contact the children's family on the Islands or the authorities of the territory in order to ensure their meeting at their destination. In this regard, the children arrived at their destination at night, no one met them, and they could only rely on the actions of an unrelated third party, so as not to be abandoned to their fate.
Thus, the French authorities did not try to take effective care of the children and did not take into account the real situation that the latter might face in their country of origin. The removal of the minor applicants under these conditions inevitably caused them great anxiety and was inhumane treatment, as well as a violation by the French authorities of their positive obligations.
The case involved a violation of the requirements of article 3 of the Convention (adopted unanimously).
(ii) the Father of the minor applicants. The first applicant's suffering and anxiety as a father of young unaccompanied children, related in particular to the fact that he arrived at the Commissariat but was not recognized as the father of the children, despite the fact that he produced the relevant documents, and therefore was present, unable to change anything with regard to their administrative detention and subsequent expulsion, despite the appeal first in administrative and then in judicial proceedings, were not compounded by fears for the children's lives. The following reasons, in particular, suggest that the required severity threshold has not been exceeded.
First, the detention of the minor applicants was short-lived. Secondly, unlike the trip to Mayotte, by illegal and dangerous means on a passing ship, at the request of the father, without ensuring that the children were accompanied by a person who had influence over them, the trip to the Comoros was carried out in satisfactory conditions, since the children were on Board a ferry belonging to the company that provided sea links to these Islands. Third, the applicant could rely on his mother to take care of the children upon their arrival.
There was no violation of the requirements of article 3 of the Convention (adopted unanimously)
in the case concerning compliance with article 5, paragraph 1 of the Convention. The administrative detention of the minor applicants was a deprivation of liberty, and there were no legal grounds that could justify it.
Under the applicable French law, a minor foreign national may not be required to leave the territory and may not be subject to an administrative detention order for the purpose of expulsion. This explains why such an order was issued only in respect of an adult M. A.
Unlike other cases previously examined, the actual detention of the two minor applicants was not justified by the desire to avoid their separation from their family, but was only intended to ensure their removal, which was not permitted by French law.
The case involved a violation of the requirements of article 5, paragraph 1, of the Convention (adopted unanimously).
Regarding compliance with article 5, paragraph 4, of the Convention. Although the deprivation of liberty of the minor applicants was brief, the consideration of the merits of the complaint was not superfluous, given that the children did not have any legal remedies available from the very beginning as to the legality of the deprivation of their liberty.
Indeed, the children were detained unaccompanied by a person with a legal right to act on their behalf in court and who took an interest in their fate. The hypothetical possibility of considering the situation of children in the event of a complaint from a third person unknown to them was not sufficient.
The case involved a violation of the requirements of article 5, paragraph 4, of the Convention (adopted unanimously).
Concerning compliance with article 8 of the Convention (in respect of all applicants). Although there was allegedly no close relationship between the children and their father at the time of the events of the present case, this could not have prevented the application of article 8 of the Convention as far as family life was concerned, since it was on this basis that the children were subsequently granted a long-term visa.
The fact that some members of one family were detained while others remained at large could be considered an interference with the right to respect for family life, regardless of the length of the contested measure. In view of the finding that there was a violation of article 5, paragraph 1, of the Convention, this interference was not "provided for by law". However, the resulting violation of article 8 of the Convention was also aggravated by the following factor.
If the enforced separation of the applicants was based on the provisions of the law, it could be assumed that the authorities refused to entrust the children to a person who presented himself as a member of their family, or to arrange a meeting between them for reasons related to the best interests of the children (such as the need to first establish beyond any reasonable doubt the reality of the existence of relevant family ties).
In contrast, the refusal to reunite the applicants in the present case was not in the best interests of the children, but only in order to ensure their speedy removal without complying with French law, which cannot be considered a legitimate aim.
The case involved a violation of the requirements of article 8 of the Convention (adopted by six votes in favour and one against).
Regarding compliance with article 4 of Protocol No. 4 to the Convention. In accordance with French law, measures for the removal of minors cannot be taken individually and personally: their situation inevitably coincides with that of their parents or their accompanying persons.
When a child is accompanied by a parent or relative, the requirements of article 4 of Protocol No. 4 to the Convention may be met if the person concerned can effectively present arguments against their General removal.
However, nothing in the present case file indicates that M. A. was sufficiently aware of the reasons that could have prevented the expulsion of the minor applicants. In any case, there is nothing to prove that he was asked any question about the children who were entrusted to him, or that he raised it on his own initiative.
Thus, the decision to expel children aged five and three, who were not known or accompanied by any adult, was taken and executed without providing the children with guarantees of a reasonable and objective consideration of their specific situation. Consequently, their expulsion must be recognized as collective.
The case involved a violation of the requirements of article 4 of Protocol No. 4 to the Convention (adopted unanimously).
With regard to compliance with article 13 of the Convention in conjunction with article 3 of the Convention, in relation to the procedure for expulsion. The applicants did not refer to any risks associated with the choice of destination country. They only complained that the children had been left unaccompanied, that their arrival at their destination had not been arranged, and that the latter had occurred late at night.
On the one hand, the practical procedure for the expulsion of foreign nationals to third countries often becomes known shortly before the execution of the expulsion decision, on the other hand, such a procedure can rarely violate article 3 of the Convention as such.
The court therefore held that article 13 of the Convention did not imply in this area that the remedy should have suspended the execution of the expulsion order. The possibility of using a compensatory remedy a posteriori was thus sufficient. In the present case, there is nothing to indicate that the applicants could not effectively avail themselves of this remedy.
However, the Court noted that its findings did not challenge the obligation of States to ensure that the procedure of expulsion must be compatible with the particular vulnerability of certain foreign nationals subject to expulsion, for example, because of their age or health status.
There was no violation of the requirements of article 13 of the Convention in relation to article 3 of the Convention (adopted unanimously).
Concerning compliance with article 13 of the Convention in conjunction with article 8 of the Convention and article 4 of Protocol No. 4 to the Convention. While the urgent complaints procedure could theoretically have allowed the court to consider the applicants ' arguments and, if necessary, order a stay of expulsion, this did not happen in practice.
Two minors were removed from Mayotte less than eight hours after their detention. Although their father acted quickly (less than four hours after the expulsion order was issued against M. A., which mentioned the children's names), an hour passed after their expulsion when he filed a complaint with the court on their behalf.
The short period between the decision and its implementation has eliminated any possibility of effective recourse to the court and, moreover, careful consideration of the court the circumstances and legal arguments from the standpoint of the Convention in case of execution of the decision on expulsion. The subsequent issuance of a residence permit did not compensate for this shortcoming.
The case involved a violation of the requirements of article 13 of the Convention in connection with article 8 of the Convention and article 4 of Protocol No. 4 to the Convention (adopted unanimously).
In the application of article 46 of the Convention. The court noted that since the events of the present case, there have been positive changes in French law and jurisprudence. The state Council clarified that the administrative authorities should make efforts to establish the identity of detained foreign minors, the exact nature of the relationship between them and any person to whom they will be entrusted for the purpose of expulsion, and the conditions of reception at the place of arrival. These new requirements, formulated in court practice, seem to be able to prevent the repetition of most of the violations found in this Judgment. With regard to the legal provisions in force in Mayotte (which still allow for the possibility of expulsion before the expiration of the one-day period), the authorities need to ensure that their application does not lead to new similar violations of article 13 of the Convention.
In the application of article 41 of the Convention. The court awarded the applicants EUR 22,500 in respect of non-pecuniary damage: EUR 2,500 to the father and EUR 10,000 to each of the minor applicants.