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France – Council of State, 3 October 2018, N° 406222
Country of Decision:
Country of Applicant:
Date of Decision:
03-10-2018
Citation:
(France) Council of State, 406222, 3 October 2018.
Court Name:
Council of State, 10th- 9th joint chambers
Keywords:
Relevant Legislative Provisions:
International Law
International Law > 1951 Refugee Convention
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 1
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 41
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 46
International Law > 1951 Refugee Convention
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 1
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 41
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 46
National / Other Legislative Provisions:
France - Code of Administrative Justice (Article L. 761-1)
France - Article L. 712-1 and L. 712-2 of the code for entry
France - law no. 91-647 of 10 July 1991 - Art 37
France - Article L. 712-1 and L. 712-2 of the code for entry
France - law no. 91-647 of 10 July 1991 - Art 37
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Headnote:
The French National Court on Asylum has made an error of law by refusing to grant at the very least subsidiary protection to the applicant following his new request to re-examine his situation, despite a condemnation from the European Court of Human Rights (ECtHR) for the violation of Article 3 of the European Convention on Human Rights (ECHR).
Facts:
The applicant’s asylum claim was rejected by the French immigration authorities (OFPRA) in 2008, a rejection later confirmed by the French National Court on Asylum (CNDA) in 2010. The two requests to re-examine the applicant’s situation in 2010 and 2011 were also rejected. The applicant was then notified of a return order following the rejection of his request to be granted a residence permit in 2010. He appealed before the ECtHR, which ruled that the execution of the applicant’s transfer decision to the DRC would amount to a violation of Article 3 of the ECHR.
Nevertheless, his new request following this decision was similarly rejected by the French immigration authorities and subsequently by the CNDA. The latter decided that the risks mentioned in the DRC could not be regarded as established.
The applicant hence decided to appeal before the Council of State.
Decision & Reasoning:
The Council of State first recalls that according to Articles 1, 41 and 46 of the ECHR, a Member State commits to comply with the Court’s final decisions. It implies that the Member State determines the means to take the appropriate measures aiming at repairing the consequences of the violation, pays the sums awarded by the Court by way of just satisfaction, and eliminates the source of the violation.
The Council of State also recalled Article 3 of the ECHR, as well as Article L. 712-1 of the code of entry and stay of foreigners and the right to asylum (CESEDA), providing for situations in which subsidiary protection is to be granted, including the risk of torture or inhuman or degrading treatment.
The Council observes that the decision from the ECtHR constituted new circumstances justifying a re-examination of the applicant’s situation by the French immigration authorities under the control of the CNDA.
The Council of State hence concluded that the latter made an error of law, as the full execution of the ECtHR’s decision requires not to proceed with the applicant’s transfer to the DRC but also to grant him, “at the very least”, subsidiary protection on the grounds of Article L. 712-1 mentioned above.
Outcome:
Appeal granted
The Council of State adds that the applicant’s lawyer is entitled to avail himself of articles L. 761-1 of the code of administrative justice and 37 of the law of 10 July 1991 related to judicial aid, as per granted to the applicant. It also adds that the French immigration authorities is required to pay the sum of 3000€, subject to renunciation.
Observations/Comments:
« Re-examination of an asylum claim following a condemnation by the ECtHR », AJDA 2018. 2249, Council of State 3 Otober 2018, 19 November 2018 (available in French only, with access to Dalloz)
