Legislationline Note: see in particular paragraphs 41 through 43

In the case of Amuur v. France (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court A (2), as a Chamber composed of the

following judges:

Mr R. Bernhardt, President,

Mr L.-E. Pettiti,

Mr R. Macdonald,

Mr C. Russo,

Mrs E. Palm,

Mr J.M. Morenilla,

Mr J. Makarczyk,

Mr P. Kuris,

Mr U. Lohmus,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 24 January, 22 February and

20 May 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 17/1995/523/609. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission of

Human Rights ("the Commission") on 1 March 1995, within the three-month

period laid down by Article 32 para. 1 and Article 47 of the Convention

(art. 32-1, art. 47). It originated in an application (no. 19776/92)

against France lodged with the Commission under Article 25 (art. 25)

by four Somali nationals, Mr Mahad Abdi Amuur, Miss Lahima Amuur,

Mr Abdelkader Abdi Amuur and Mr Mohammed Abdi Amuur, on 27 March 1992.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby France recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 5 of the Convention (art. 5).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the lawyer who had represented

the applicants before the Commission stated that she was unable to

contact them but that the terms of the authority to act that had been

produced before the Commission also covered the proceedings before the

Court. On 5 May 1995 the President of the Court informed her that it

was not necessary to produce fresh authority to act.

3. The Chamber to be constituted included ex officio

Mr L.-E. Pettiti, the elected judge of French nationality (Article 43

of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President

of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of

the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot

the names of the other seven members, namely Mr R. Macdonald,

Mr C. Russo, Mrs E. Palm, Mr J.M. Morenilla, Mr J. Makarczyk,

Mr P. Kuris and Mr U. Lohmus (Article 43 in fine of the Convention and

Rule 21 para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

acting through the Registrar, consulted the Agent of the French

Government ("the Government"), the applicants' lawyer and the Delegate

of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). The applicants' and the Government's

memorials were received by the registry on 26 and 29 September 1995

respectively. On 3 November the Secretary to the Commission informed

the Registrar that the Delegate did not intend to submit written

observations.

On 22 December 1995 the applicants' lawyers filed an additional

memorial setting out the applicants' claims under Article 50 of the

Convention (art. 50).

On 16 January 1996 the President decided, having regard to the

particular circumstances of the case, to allow the request for legal

aid that the lawyers had lodged on the applicants' behalf (Rule 4 of

the Addendum to Rules of Court A).

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

23 January 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J.-F. Dobelle, Deputy Director of Legal Affairs,

Ministry of Foreign Affairs, Agent,

Mr J. Lapouzade, administrative court judge

on secondment to the Legal Affairs Department,

Ministry of Foreign Affairs,

Mrs M. Pauti, Head of the Comparative and International

Law Office, Department of Public Freedoms and Legal

Affairs, Ministry of the Interior, Advisers;

(b) for the Commission

Mr A. Weitzel,Delegate;

Ms P. Taelman, avocate,

Ms D. Monget-Sarrail, avocate,

Ms L. Roques, avocate, Counsel.

The Court heard addresses by Mr Weitzel, Ms Taelman, Ms Roques

and Mr Dobelle. The applicants' lawyers produced documents at the

hearing.

AS TO THE FACTS

I. Circumstances of the case

6. The applicants, Mahad, Lahima, Abdelkader and Mohammed Amuur, are

Somali nationals. They are brothers and sister born respectively in

1970, 1971, 1973 and 1975.

A. Refusal of leave to enter French territory and of

applications for refugee status

7. The applicants arrived at Paris-Orly Airport on 9 March 1992 on

board a Syrian Airlines flight from Damascus (Syria), where they had

stayed for two months after travelling there via Kenya. They asserted

that they had fled Somalia because, after the overthrow of the regime

of President Siyad Barre, their lives were in danger and several

members of their family had been murdered. Five of their cousins and

thirteen other Somali nationals (including eleven children) also

arrived, some on the same flight and others from Cairo on 14 March.

However, the airport and border police refused to admit them to French

territory, on the ground that their passports had been falsified, and

held them at the Hotel Arcade, part of which had been let to the

Ministry of the Interior and converted for use as a waiting area for

Orly Airport.

According to the applicants, police officers would drop them off

at the airport's Espace lounge very early in the morning and take them

back to the Hotel Arcade in the evening.

8. On 12 March, in accordance with Article 12 of Decree no. 82-442

of 27 May 1982 (see paragraph 16 below), the Minister of the Interior

considered an application by the applicants for leave to enter under

the right of asylum.

The applicants were granted legal aid as from 24 March, when

CIMADE, a humanitarian organisation, which had in the meantime inquired

about their situation, put them in contact with a lawyer.

9. On 25 March the applicants asked the French Office for the

Protection of Refugees and Stateless Persons ("the OFPRA") to grant

them refugee status pursuant to the Geneva Convention of 28 July 1951.

On 31 March the OFPRA ruled that it lacked jurisdiction because the

applicants had not obtained a temporary residence permit.

10. On 26 March the applicants applied to the urgent applications

judge at the Creteil tribunal de grande instance at short notice

seeking an order for their release from confinement at the

Hotel Arcade, which, they asserted, constituted a flagrantly unlawful

act (voie de fait).

B. The applicants' return to Syria

11. On 29 March at 1.30 p.m., after the Minister of the Interior had

refused them leave to enter, the applicants were sent back to Syria,

which, according to the Government, had agreed to take them. The other

eighteen Somali nationals (see paragraph 7 above), who had not been

sent back, were recognised as political refugees by the OFPRA in a

decision of 25 June 1992.

On 10 June the United Nations High Commissioner for Refugees

("the HCR") sent the Ministry of the Interior the following fax:

"The four persons were allowed to re-enter Syrian territory

without difficulty, the French Embassy having obtained guarantees

to that effect from the relevant Syrian authorities. The four

Somali nationals were supposed to get in touch with our office

later for their status to be determined, but to date we have

heard nothing from them. We shall keep you informed of any

further developments."

Before the Commission the applicants alleged that these

guarantees had been given after their expulsion from France.

The Government stated at the hearing before the Court that on

29 July 1992 they had received from the HCR a further fax, worded as

follows:

"The Damascus delegation of the United Nations High Commissioner

for Refugees has just informed us that the four members of the

Amuur family had recently been recognised as refugees by the HCR,

under paragraph 68 of its Statute ... As Syria grants asylum to

persons recognised as refugees by the HCR under its Statute,

these Somali nationals were not in danger of being refused entry

and sent to their country of origin."

C. The order of the Creteil tribunal de grande instance

12. On 31 March the Creteil tribunal de grande instance issued an

order under the expedited procedure in which it ruled that the

applicants' detention was unlawful and directed that they be released.

The relevant part of the court's decision reads as follows:

"Although the lawfulness of refusals to admit aliens ... cannot

be reviewed by an urgent applications judge, ... the current

detention by order of the Minister of the Interior on premises

which are, moreover, not situated in the international zone, is

not provided for by any legislation, as is indeed implicitly

acknowledged by the Minister of the Interior.

Furthermore, under the legislative and constitutional provisions

currently applicable in France, detention may not be ordered by

the administrative authorities in cases other than those provided

for in Article 35 bis of the 1945 Ordinance, which in any event

makes such detention subject to supervision by the ordinary

courts.

In French law as it stands at present, therefore, and whatever

the factual circumstances surrounding the entry of the aliens

concerned, the applicants must be considered to have been

arbitrarily deprived of their liberty; it follows that a

flagrantly unlawful act is being committed which it is the duty

of the urgent applications judge to bring to an end.

The Minister of the Interior is accordingly ordered to release

the applicants."

No appeal against the above order was lodged by State Counsel's

Office.

D. The appeal to the Refugee Appeals Board

13. In the meantime, on 30 March, the applicants had appealed to the

Refugee Appeals Board. They sought a ruling that the Minister of the

Interior's decision refusing them leave to enter French territory and

the order that they be sent back to Syria were contrary to

section 5 (b) of the Law of 25 July 1952 on the suspensive effect of

appeals to the Appeals Board, Article 31 para. 1 of the Geneva

Convention, which prohibited the imposition of criminal penalties for

the unlawful entry or residence of refugees, and Article 33 para. 1 of

the same Convention, which prohibited turning away a refugee to a

country where his life would be in peril.

14. On 17 April 1992 the Appeals Board found against the applicants.

It ruled that the decisions to remove them from French territory were

not incompatible with the rule that appeals had a suspensive effect as

the appeal had been lodged after the decisions had been carried out,

the applicants had not been prosecuted and the French Government had

obtained assurances concerning the applicants' life and liberty from

the Syrian authorities.

II. Relevant domestic law

A. Applications for refugee status

15. Under a circular from the Prime Minister dated 17 May 1985, on

asylum-seekers, the temporary admission to France of aliens seeking

asylum requires the issue of two documents in turn: a temporary

residence permit "for the purpose of making an application to the

OFPRA", valid for one month, and a receipt bearing the words "Asylum

applied for", valid as a temporary residence and work permit for three

months and renewable. However, an application to the OFPRA can be made

only by persons given leave to enter French territory, and the decision

to admit an alien is left to the discretion of the Minister of the

Interior.

16. Under the procedure laid down in Decree no. 82-442 of

27 May 1982, which was in force at the material time, "Where

immigration control is carried out by officers of the national police,

any decision to refuse an alien leave to enter France shall be taken

... by the officer in charge of the checkpoint ..."; Article 12 of the

decree provides: "Where an alien arriving at the border asks for

asylum, a decision to refuse leave to enter France may be taken only

by the Minister of the Interior, after the Minister of Foreign Affairs

has been consulted." It was the Minister of the Interior's practice

to request the opinion, on an advisory basis, of the representative of

the HCR.

17. Article 5, third paragraph, of Ordinance no. 45-2658 of

2 November 1945 on the conditions of aliens' entry into France and

residence there provides:

"Every refusal of leave to enter must be conveyed in a written

decision, ... setting out reasons specific to the facts of the

case, one copy of which shall be given to the person concerned.

An alien who has been refused entry shall be given the

opportunity to inform or have informed the person whom he has

said he intended to visit, his consulate or the lawyer of his

choice."

Law no. 89-548 of 2 August 1989 added to the foregoing provisions

the following paragraph, which was applicable at the material time:

"In no circumstances may refusal of entry give rise to

repatriation against the will of the person concerned before one

clear day has elapsed. An alien who has been refused leave to

enter may be held on premises not under the authority of the

prison service and for the time strictly necessary to arrange his

departure, as provided in Article 35 bis."

18. Article 35 bis of the Ordinance of 2 November 1945, in force at

the material time, provided:

"An alien may be held, if this is absolutely necessary, by a

reasoned written decision of the Prefect, on premises not under

the authority of the prison service and for the time strictly

necessary to arrange his departure, where:

1. he is not able to comply immediately with a decision to

refuse him leave to enter French territory; or

2. being subject to a deportation order, he is unable to leave

French territory immediately; or

3. being due to be expelled, he is unable to leave French

territory immediately.

For the application of sub-paragraph 1 of this Article, the

Prefect may authorise an official having the status of a senior

law-enforcement officer (officier de police judiciaire) to sign

the decision on his behalf.

State Counsel shall be informed of the decision immediately.

The alien shall immediately be informed of his rights through an

interpreter if he does not understand French.

When twenty-four hours have elapsed from the decision to hold,

the case shall be brought before the President of the tribunal

de grande instance or a judge designated by him, who, after

hearing the person concerned in the presence of his lawyer, if

any, or after the lawyer has been duly informed, shall make an

order for one or more of the supervision and control measures

necessary to ensure his departure listed below:

Surrender to the police or gendarmerie of all identity documents,

in particular his passport, in exchange for a receipt valid as

proof of identity;

Compulsory residence in a specified place;

In exceptional cases, holding for a further period on the

premises mentioned in the first paragraph of this Article. The

extension order shall run from the expiry of the twenty-four-hour

period laid down in this paragraph.

These measures shall cease to apply at the latest when six days

have elapsed since the issue of the order mentioned above."

B. Holding in the international zone

1. The circular of 26 June 1990

19. At the material time the practice of holding in the international

zone, also called the transit zone, was the subject of a circular from

the Minister of the Interior (unpublished) of 26 June 1990 on the

procedures for refusing aliens leave to enter France. The relevant

passages of the circular read as follows:

"... An alien who has been refused leave to enter and is waiting

to be sent away has the right to freedom of movement inside the

international zone, where such a zone exists and has facilities

suitably adapted to the types of surveillance and accommodation

required for the alien in question. If so, it will be necessary

to provide accommodation and take the necessary measures to

ensure that he does not enter French territory.

...

III.2.1. Holding in the international zone

In practice international zones are to be found mainly at certain

ports and airports.

...

At airports the international zone means the sealed-off area (or

one that can be sealed off) used for the arrival of international

flights and situated between the passengers' point of arrival and

the police checkpoints.

Alternatively, a hotel situated in the immediate proximity of the

port or airport may be used to accommodate aliens refused entry

to whom Article 35 bis of the Ordinance of 2 November 1945 has

not been applied, but transfer thereto shall not be deemed to

constitute entry into the territory. The aliens concerned shall

be informed of the above conditions.

...

Where aliens who have been refused leave to enter are held in the

international zone, the immigration control authorities shall

carry out appropriate surveillance, but this may in no

circumstances take the form of total isolation in a locked room.

...

III.2.3. Aliens' rights

...

Consequently, in all cases, an alien who has been refused entry

will have the possibility, once the relevant decision has been

taken, of informing or sending word to the person living at the

address to which he has indicated that he intends to travel

according to the statements recorded at the time of notification,

to his consulate or to a lawyer of his own choice. In practice,

the services that have refused entry will be responsible for

enabling the alien concerned to communicate with the persons

listed above. You will therefore allow him access to a telephone

and let him use it to seek the information he may require, it

being understood that calls outside France will not be permitted

and that the conversation must remain reasonable in length.

...

III.2.5. Asylum-seekers

...

While it is not necessary to describe the procedure for

processing an application for asylum at the frontier, no order

for administrative detention may be issued in respect of the

person concerned until a refusal of leave to enter, if there is

one, has been served on him.

Where an alien declares that he seeks political asylum when he

has already been served with refusal of leave to enter, but has

not yet entered the territory, the request shall be regarded as

an application for asylum at the frontier and brought as soon as

possible to the attention of the Department of Public Freedoms

and Legal Affairs which, after investigating the case, will make

known the decision taken pursuant to the provisions of Article 12

of Decree no. 82-442 of 27 May 1982.

..."

2. The Law of 6 September 1991

20. The Law of 6 September 1991 amending the Ordinance of

2 November 1945 on aliens' conditions of entry into France and

residence there was the first attempt to legislate on the question of

transit zones. When the draft version of section 8 of the Law of

6 September 1991 was presented to Parliament, the Minister of the

Interior declared: "aliens in that situation are not detained

(retenus), since they are not on French territory, as they are free to

leave at any time" (Official Gazette, 19 December 1991, p. 8256).

Section 8 (1) of the Law inserted into the above-mentioned

Ordinance an Article 35 quater, which provided:

"... an alien who has been refused leave to enter French

territory at an airport or port, or who has sought asylum there,

may be held in the transit zone of that airport or port for the

time strictly necessary to arrange his departure or to consider

his application for leave to enter the territory, and for not

more than twenty days. This zone, whose limits shall be laid

down in a decision of the Prefect, shall extend from the points

of embarkation or disembarkation on French territory to the

checkpoints for persons entering and leaving the territory. It

may be enlarged to include within its perimeter one or more

places of accommodation ... The order to hold in the transit

zone shall be made in a reasoned written decision of the head of

immigration control or an official having the rank of sergeant

designated by him. This decision shall be entered in a register

recording the alien's civil status and the holding conditions;

... the alien shall be free to leave the transit zone at any time

for any foreign destination of his choice ..."

3. The Constitutional Council's decision of 25 February 1992

21. The Constitutional Council, on an application by the Prime

Minister under Article 61 of the Constitution, ruled on

25 February 1992 that section 8 of the Law of 6 September 1991 was

unconstitutional for the following reasons:

"It should be noted in this connection that holding an alien in

the transit zone under the conditions laid down in Article 35

quater (I), inserted in the Ordinance of 2 November 1945 by

section 8 (1) of the referred law, does not entail a degree of

restriction of movement comparable with that which would result

from placing him in a detention centre under Article 35 bis of

the Ordinance.

However, holding an alien in the transit zone does nevertheless,

through the combined effect of the degree of restriction of

movement it entails and its duration, impinge on the personal

liberty of the person concerned within the meaning of Article 66

of the Constitution. Although the power to order an alien to be

held may be conferred by law on the administrative authorities,

the legislature must make appropriate provision for the courts

to intervene, so that they may carry out their responsibilities

and exercise the supervisory power conferred on them.

Whatever the safeguards under the provisions of Article 35 quater

as regards the holding of aliens in the transit zone, those

provisions contain no requirement that the courts must intervene

to decide whether or not a person should be held for longer, such

as would enable them to determine, on the facts of the case,

whether such a measure was necessary. In any event, a person

cannot be held for more than a reasonable period.

It follows that, as it confers on the administrative authorities

the power to hold an alien in the transit zone for a lengthy

period, without providing for speedy intervention by the courts,

Article 35 quater, as inserted into the Ordinance of

2 November 1945 by section 8 (1) of the referred law, is, as it

stands, unconstitutional."

4. The judgment of the Paris tribunal de grande instance of

25 March 1992

22. On 25 March 1992 the Paris tribunal de grande instance, giving

judgment in an action for damages brought by three asylum-seekers who

had been held in the international zone, in the Hôtel Arcade at Roissy

Airport, ruled as follows:

"... holding an alien on the premises of the Hôtel Arcade,

given the degree of restriction of movement it entails and

its duration - which is not laid down by any provision and

depends solely on an administrative decision, without any

judicial supervision whatsoever - impinges on the liberty

of the person concerned. Total deprivation of freedom to

come and go is not necessary for an infringement of that

freedom to be made out; it is enough if, as in the instant

case, a person's liberty has been seriously restricted as

a result of the relevant decision.

... we reject as ill-founded the defendant's submission

that the complaint of an interference with personal liberty

should be dismissed because the alien was merely prevented

from entering France, as he was detained in a place which

had to be regarded as an 'extension' of the airport's

international zone. No evidence has been adduced of the

existence of any provision of national or international law

conferring any extraterritorial status on all or part of

the premises of the Hôtel Arcade - which lies, moreover,

outside the airport's perimeter and the area under customs

control.

... as matters stand, this zone, which is a legal fiction,

cannot be exempted from the fundamental principles of

personal liberty.

... the indisputable prerogative of the administrative

authorities, who in the field of immigration control have

exclusive authority to refuse leave to enter French

territory - even, subject to the conditions set out in

Article 12 of the Decree of 27 May 1982, in the case of an

application for asylum - does not, however, allow the

Minister of the Interior to restrict the liberty of an

alien save in the circumstances and under the conditions

prescribed by law.

...

... under present French legislation on aliens, the

administrative authorities may not temporarily deprive an

alien of his freedom to come and go except in the

circumstances and in accordance with the procedures laid

down in Article 5 (last paragraph) and Article 35 bis of

the Ordinance of 2 November 1945. These provisions apply,

in particular, to refusal of leave to enter France. They

fix the maximum period of administrative detention

(rétention) and provide that it cannot be extended beyond

twenty-four hours without the authorisation of the

President of the tribunal de grande instance.

... in the absence of any specific rules governing the holding

of an asylum-seeker in the international zone for the time

strictly necessary for the administrative authorities to consider

whether his application is admissible, those authorities are not,

moreover, entitled to invoke to their advantage a necessary,

general right to hold an alien in that supervised zone."

State Counsel's Office appealed against the above judgment to the

Paris Court of Appeal. However, on 23 September 1992 the case was

struck out of the list on the ground that the appellant had not

submitted final pleadings within the time-limit.

5. The Law of 6 July 1992

23. Following the above-mentioned decision of the Constitutional

Council (see paragraph 21 above), Parliament adopted Law no. 92-625 of

6 July 1992, which was itself amended by Law no. 94-1136 of

27 December 1994. This text, which - like the previous version (see

paragraph 20 above) - inserted an Article 35 quater into the Ordinance

of 2 November 1945, provides:

"I. 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 situated at a railway

station open to international traffic and designated by

regulation, a port or an airport, for the time strictly necessary

to arrange his departure and, if he is an asylum-seeker, to

investigate whether his application is manifestly ill-founded.

He shall be informed immediately of his rights and duties, if

necessary through an interpreter. This shall be recorded in the

person concerned.

The limits of the waiting zone shall be laid down by the State's

representative in the département. It shall extend from the

points of embarkation or disembarkation to the immigration

control checkpoints. It may include within its perimeter, or

near the station, port or airport, one or more places of

accommodation providing the aliens concerned with hotel-type

services.

II. The order to hold in the waiting zone, for a period which

may not exceed forty-eight hours, shall be made in a reasoned

written decision of the head of immigration control or an

official having the rank of sergeant designated by him. This

decision shall be entered in a register recording the alien's

civil status and the date and time when the decision to hold was

served on him. State Counsel shall be informed of the decision

without delay. It may be renewed under the same conditions and

for the same period.

The alien shall be free to leave the waiting zone at any time for

any destination situated outside France. He may request the

assistance of an interpreter and a doctor and communicate with

a lawyer or any person of his choice.

III. Holding in the waiting zone after four days have elapsed

since the initial decision may be authorised, by the President

of the tribunal de grande instance, or a judge delegated by him,

for a period not exceeding eight days. The administrative

authority shall set out in its application the reasons why it has

not been possible to repatriate the alien or, if he has applied

for asylum, to admit him, and the time necessary to ensure his

departure from the waiting zone. The President of the tribunal

de grande instance or his delegate shall give a ruling in the

form of an order, after hearing the person concerned in the

presence of his lawyer, if any, or after the lawyer has been duly

informed. The alien may request the President or his delegate

to assign him a lawyer under the legal-aid scheme. He may also

ask the President or his delegate for the assistance of an

interpreter and for a copy of his file. The President or his

delegate shall rule at the seat of the tribunal de grande

instance, except in the districts designated by decree issued

after consultation of the Conseil d'Etat. In such a case,

without prejudice to the application of Article 435 of the New

Code of Civil Procedure, he shall give his ruling in public in

a hearing room specially created inside the perimeter of the

station, port or airport.

An appeal shall lie against the order to the President of the

Court of Appeal or his delegate, who must rule on the appeal, for

which there is no particular required form, within forty-eight

hours. Appeals may be lodged by the person concerned, State

Counsel's Office and the representative of the State in the

département. The appeal shall not have suspensive effect.

IV. Exceptionally, holding in the waiting zone may be renewed

beyond twelve days, under the conditions laid down in

section III, by the President of the tribunal de grande instance

or his delegate, for a period which he shall determine, which may

not exceed eight days.

V. During the whole of the time that the alien is held in the

waiting zone, he shall enjoy the rights set forth in the second

paragraph of section II. State Counsel and, after the first four

days, the President of the tribunal de grande instance or his

delegate may visit the waiting zone in order to verify the

conditions of his confinement and inspect the register mentioned

in section II.

The conditions for access to the waiting zone of the delegate of

the United Nations High Commissioner for Refugees or his

representatives and humanitarian associations shall be laid down

in a decree issued after consultation of the Conseil d'Etat.

VI. Where holding in the waiting zone is not extended beyond the

limit fixed by the last decision to hold, the alien shall be

authorised to enter French territory on an eight-day visa. He

must have left French territory by the time this limit expires,

unless he obtains a provisional residence permit or a receipt for

a residence permit application.

VII. The provisions of the present Article shall also apply to

an alien who is in transit at a station, port or airport, where

the carrier which was to have conveyed him to his country of

destination refuses to let him embark or where the authorities

of the country of destination have refused him leave to enter and

have sent him back to France.

VIII. Where the alien's departure from French territory cannot

be arranged from the station, port or airport to which the

waiting zone where he is being held is attached, he may be

transferred to a waiting zone attached to any station, port or

airport from which he can leave.

Where the transfer decision must be taken within four days from

the initial decision to hold in the waiting zone, it shall be

taken under the conditions laid down in section II of the present

Article.

Where transfer is envisaged after four days have elapsed since

the initial decision to hold, the administrative authority shall

inform the President of the tribunal de grande instance or his

delegate at the time when it applies to them under the conditions

laid down in sections III and IV of the present Article.

In cases where authorisation has been given to prolong or renew

holding in the waiting zone, the administrative authority shall

inform the President of the tribunal de grande instance or his

delegate and State Counsel of the necessity of transferring the

alien to another waiting zone and carry out that transfer.

For the purpose of determining the length of a prolongation or

renewal of holding in the waiting zone, time shall continue to

run notwithstanding a transfer of the alien to another waiting

zone."

More precisely, the law of 27 December 1994 extended and relaxed

the rules introduced by the Law of 6 July 1992. The procedure laid

down in Article 35 quater of the 1945 Ordinance became applicable to

aliens arriving in France by rail. The railway stations concerned,

which must be "open to international traffic", are designated by an

order of the Minister of the Interior and the limits of waiting zones

are laid down by the State's representative in the département. In

addition, the waiting zone is no longer defined as a disembarkation and

control zone, exceptionally extended to immediately adjacent areas; it

can now include, either within the perimeter or close to the station,

port or airport, one or more places of accommodation providing aliens

with hotel-type services. Moreover, in order to avoid all confusion

between waiting zones as provided for in Article 35 quater of the

1945 Ordinance and the administrative detention centres mentioned in

Article 35 bis thereof, the Law of 27 December 1994 specifies that the

premises used for these two categories must be physically distinct and

separate.

6. The Decree of 15 December 1992

24. Decree no. 92-1333 of 15 December 1992 lays down the procedural

rules applicable to actions brought in accordance with

Article 35 quater of the Ordinance of 2 November 1945 and provides for

legal aid for aliens who are the subject of such proceedings.

Under this decree authorisation to hold an alien in the waiting

zone for more than four or twelve days (see paragraph 23 above) must

be sought from the President of the tribunal de grande instance having

jurisdiction, in a reasoned application, which must be dated, signed

and accompanied by all the relevant documents, from the head of the

immigration control service. He must inform the alien of his right to

choose a lawyer or have one assigned to him under the legal-aid scheme

if the alien so requests. The application and the accompanying

documents may be inspected by the alien's lawyer as soon as they are

received by the registry. They may also be inspected, before the

hearing, by the alien himself, who may be assisted by an interpreter

if he does not understand French sufficiently well.

7. The Decree of 2 May 1995

25. Decree no. 95-507 of 2 May 1995 lays down the conditions for

access by the HCR delegate or his representatives and by humanitarian

associations to the waiting zone of railway stations open to

international traffic, ports and airports, as defined by Article 35

quater of the Ordinance of 2 November 1945 (see paragraph 23 above).

In particular, it makes provision for representatives of the HCR

and humanitarian associations, whose access to the waiting zone is

conditional upon individual authorisation by the Minister of the

Interior, to hold confidential interviews with the persons held there,

and for these representatives and the Minister of the Interior to meet

once a year to discuss the way the waiting zones are run.

III. Work done by the Council of Europe

A. The Parliamentary Assembly's report of 12 September 1991 on

the arrival of asylum-seekers at European airports

26. On 12 September 1991 the Parliamentary Assembly of the Council

of Europe drew up a report on the arrival of asylum-seekers at European

airports. The report, which briefly surveyed the current situation in

six large European airports visited by its author, included the

following comments about Roissy-Charles-de-Gaulle Airport, Paris:

"Asylum-seekers present the request for asylum to border police

and the French Office for the Protection of Refugees and

Stateless Persons (Office français de protection des réfugiés et

apatrides (OFPRA)) decides on the refugee status.

Neither interpreters nor legal assistance are available for

asylum-seekers immediately after presenting the asylum request:

assistance is allowed only after entry into France.

Asylum-seekers are detained in a so-called international zone at

the airport, which means that they are not yet on French

territory and the French authorities are therefore not under a

legal obligation to examine the request as they would be if a

request was made by someone already on French territory. The

international zone has no legal background and must be considered

as a device to avoid obligations.

During detention, no access to social workers and in fact no

communication with the outside world exists. Moreover,

asylum-seekers do not always have access to telephones. On

permission from the border police, a chaplain can visit

asylum-seekers. No recreational or educational facilities are

put at the asylum-seekers' disposal.

No legal basis for detention exists and a maximum term is not

prescribed by law. The French authorities claim that

asylum-seekers stay in this zone for a maximum of one week and

that children are seldom held. Some asylum-seekers have claimed

to have spent six weeks waiting for the Ministry of the Interior

to decide whether their application is to be passed on to OFPRA

or whether they will be sent back.

Asylum-seekers in the international zone sleep on the floor and

on the plastic chairs. The airport provides them with meals and

there are a few showers for their use in the middle of the night

when they are not being used by others.

Due to lack of space at the airport itself, the international

zone is extended to one of the floors of the nearby Arcade

Hotel."

B. Recommendation No. R (94) 5 of the Committee of Ministers

on guidelines to inspire practices of the member States of

the Council of Europe concerning the arrival of

asylum-seekers at airports, of 21 June 1994

27. In a recommendation adopted on 21 June 1994 the Committee of

Ministers invited the member States of the Council of Europe to apply

the following guidelines:

"...

Taking into account that the particular position of

asylum-seekers at the airports may entail specific difficulties,

linked to the reception itself as well as the handling of their

requests;

Considering that, without prejudice to other principles

applicable in this field, guidelines based on the fundamental

principles in the field of human rights should inspire the

practices of member states with regard to the protection of

asylum-seekers at airports, and contribute to the development of

legislation and the establishment of an administrative

infrastructure concerning the reception of asylum-seekers in new

host countries,

...

3. ... each State preserves the possibility of sending an

asylum-seeker to a third country subject to respect to the

provisions of the Geneva Convention Relating to the Status of

Refugees, in particular its Article 33, and with respect to the

European Convention on Human Rights, in particular its Article 3

(art. 3).

...

5. The request shall be examined with all diligence required in

order not to prolong the stay of the applicant at the airport

beyond a period strictly necessary for the handling of such a

request.

...

9. When the asylum-seeker has to stay at the border pending a

decision, he or she shall be received and accommodated in an

appropriate place, whenever possible provided to that effect.

10. The asylum-seeker can be held in such a place only under the

conditions and for the maximum duration provided for by law.

..."

C. Report of the European Committee for the Prevention of

Torture and Inhuman or Degrading Treatment or Punishment of

4 June 1992

28. During its visit to France from 27 October to 8 November 1991 the

European Committee for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment ("the CPT") visited a number of

premises for the detention of aliens, including the border police posts

at Roissy-Charles-de-Gaulle Airport and the Hôtel Arcade.

In its report, adopted on 4 June 1992, it made the following

observations in particular:

"However, unlike the position where administrative detention

(rétention) is concerned, there seems to be no legislative

provision for any judicial supervision or statutory limit on the

length of time spent in the waiting zone in respect of persons

refused entry.

... on 1 October 1991 the Government set up a humanitarian aid

body - the International Migration Office ("the OMI").

The CPT wishes to emphasise how important it is that an effective

appeal should lie against any refusal of leave to enter,

particularly in order to protect the persons concerned against

the risk of being turned away to a State where there are serious

reasons to believe they might be subjected to ill-treatment.

Consequently, the CPT would like to be given information about

the possibility of appealing against a refusal of leave to enter.

In addition, it would like to have information about the average

length of time spent on premises where persons refused entry are

held and the exact role of the OMI."

29. On 19 January 1993 the French Government supplied the CPT with

the following information:

"...

2. The situation of persons refused entry: waiting zones in

ports and airports

2.1. The Law of 6 July 1992 on waiting zones in ports and

airports (Article 35 quater of the Ordinance of 2 November 1945,

as amended, see Appendix 10), as was mentioned in the general

remarks above, laid down very precise conditions for the holding

of an alien refused leave to enter the territory.

2.2. The enactment in question affords aliens a number of

safeguards concerning

(a) the length of time for which persons may be held in the

waiting zone: this is strictly supervised by the ordinary

courts and may not exceed the "reasonable" time prescribed

by law. A court order is needed where a person is to be

held for more than four days, and in no circumstances may

the twenty-day limit be exceeded. It should be noted in

this connection that the original period of twenty days

that could elapse before the ordinary courts intervened has

been reduced by this Law to four days only. In addition,

the total maximum period has been substantially reduced,

from thirty days to twenty days;

(b) the physical and legal conditions of holding in the

waiting zone: holding a person entails a reasoned written

decision of the head of immigration control, which must be

entered in a register, the immediate notification of State

Counsel and, after four days, a decision by the President

of the tribunal de grande instance, the right of those two

judicial officers to enter the waiting zone, the right to

communicate with any person of one's choice, the right to

assistance by an interpreter and a lawyer and the right to

legal aid.

3. Judicial supervision and the length of time for which a

person may be held in the waiting zone

3.1. As mentioned above, after four days a ruling must be given

by an ordinary court. It must reach its decision after

proceedings attended by all the safeguards expressly prescribed

by law, and authorisation to hold may not be given for a period

exceeding eight days. Exceptionally, the court may renew

authorisation for a further eight days. In either case, an

appeal against its decision will lie.

3.2. The practical effects of the Law, which came into force on

13 July 1992, can already be assessed. At the request of the

Minister of the Interior and Public Safety, a large number of

orders (nearly forty) demarcating waiting zones have been issued

by the prefects of the départements in which there are

international ports and airports.

3.3. As regards the time spent in the waiting zone, the two

categories of alien concerned should be distinguished.

3.4. Aliens refused entry and aliens whose journeys have been

interrupted (no papers):

3.5. Before the Law was passed the time aliens in this category

spent in the international zone was already less than four days.

The general average, which is still less than four days at each

of the checkpoints concerned, is now 1.8 days.

3.6. In that respect the Law on waiting zones has hardly

affected the length of time spent in them, as time is inevitably

needed to find a place on a departing plane or ship.

..."

PROCEEDINGS BEFORE THE COMMISSION

30.The applicants Mahad, Lahima, Abdelkader and Mohammed Amuur and

eighteen other Somali nationals applied to the Commission on

27 March 1992. They alleged breaches of Articles 3, 5, 6 and 13 of the

Convention (art. 3, art. 5, art. 6, art. 13).

31. On the same day the President of the Commission indicated to the

French Government, under Rule 36 of the Commission's Rules of

Procedure, that it was desirable, in the interest of the parties and

the proper conduct of the proceedings, to refrain from sending the

applicants back to Somalia before 4 April 1992. In addition, he asked

the French Government to supply certain information about what was

going to be done with them.

On 2 April 1992 the Commission repeated the above indication in

respect of those of the applicants who were still in France. Mahad,

Lahima, Abdelkader and Mohammed Amuur had already been sent back to

Syria on 29 March 1992.

32. On 18 October 1993 the Commission decided to strike out of its

list those parts of the application (no. 19776/92) submitted by the

other eighteen applicants, who had in the meantime been granted refugee

status. It declared admissible the complaint that holding Mahad,

Lahima, Abdelkader and Mohammed Amuur in the international zone of

Paris-Orly Airport constituted unlawful detention, contrary to

Article 5 para. 1 of the Convention (art. 5-1), and declared the

remainder of the application inadmissible. In its report of

10 January 1995 (Article 31) (art. 31) it concluded, by sixteen votes

to ten, that Article 5 (art. 5) was inapplicable and that there had

therefore been no breach of that provision (art. 5). The full text of

the Commission's opinion and of the dissenting opinion contained in the

report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-III), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

33. At the hearing the Government asked the Court to

"dismiss the application as inadmissible: in chief, because the

applicants [could] not claim to be victims of a violation of the

rights set forth in the Convention within the meaning of

Article 25 thereof (art. 25); in the alternative, because the

application [was] incompatible ratione materiae with the

provisions of Article 5 para. 1 of the Convention (art. 5-1)".

AS TO THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

34. According to the Government, the applicants are not victims

within the meaning of Article 25 of the Convention (art. 25).

Invoking the subsidiary nature of the machinery set up by the

Convention, the Government argued that for an individual to claim to

be a victim of a violation of a right set forth in the Convention he

must first have given the domestic courts the opportunity to declare

that the alleged violation has occurred and to provide a remedy. As

the Créteil tribunal de grande instance had given judgment in the

applicants' favour on 31 March 1992, they could not reasonably maintain

that the remedy before that court was not effective on the ground that

the order under the expedited procedure had been made after they had

been sent back to Syria. Their lawyer should have applied to the court

earlier, the applicants having been in the transit zone since 9 March.

35. The Court notes that the Government raised this objection before

the Commission, not as a separate issue but as part of their arguments

concerning Article 5 (art. 5). It therefore considers that it has

jurisdiction to deal with it, although the Commission, which had

declared the complaint relating to that Article (art. 5) admissible,

did not rule on the objection when determining the question of

admissibility.

36. According to the Court's established case-law, the word "victim"

in the context of Article 25 (art. 25) denotes the person directly

affected by the act or omission in issue, the existence of a violation

of the Convention being conceivable even in the absence of prejudice;

prejudice is relevant only in the context of Article 50 (art. 50).

Consequently, a decision or measure favourable to the applicant is not

in principle sufficient to deprive him of his status as a "victim"

unless the national authorities have acknowledged, either expressly or

in substance, and then afforded redress for, the breach of the

Convention (see, among many other authorities, the Lüdi v. Switzerland

judgment of 15 June 1992, Series A no. 238, p. 18, para. 34).

It is true that in this case the Créteil tribunal de grande

instance ruled that holding the applicants in the transit zone at

Paris-Orly Airport was unlawful and ordered their release. However,

that decision was not made until 31 March, whereas the applicants had

been held in the transit zone since 9 March and, above all, had been

sent back to Syria on 29 March. As the applicants were not able to

secure the assistance of a lawyer before 24 March (see paragraph 8

above), it would have been almost impossible for them to apply to the

court any earlier.

With regard to the Government's argument that it was possible for

the applicants to obtain compensation for the prejudice they had

suffered, the Court considers that the haste with which they were sent

back made the prospects for the institution of proceedings to that end

unrealistic.

The objection must therefore be rejected.

II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 (art. 5-1) OF THE

CONVENTION

37. According to the applicants, holding them in the international

zone at Paris-Orly Airport constituted deprivation of liberty contrary

to Article 5 para. 1 (f) of the Convention (art. 5-1-f), which

provides:

"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:

...

(f) the lawful arrest or detention of a person to prevent his

effecting an unauthorised entry into the country or of a person

against whom action is being taken with a view to deportation or

extradition."

A. Existence of a deprivation of liberty

38. The applicants complained of the physical conditions of their

"detention" in the transit zone. They maintained that these did not

comply with Resolution (73) 5 of the Committee of Ministers of the

Council of Europe on Standard Minimum Rules for the Treatment of

Prisoners, or the recommendations of the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment

(see paragraph 28 above), or Recommendation No. R (94) 5 of the

Committee of Ministers of21 June 1994 (see paragraph 27 above). In

addition, these conditions had been aggravated by the excessive length

of their "detention", which was a decisive factor for assessment of the

"deprivation of liberty" issue. They also emphasised that under the

relevant international conventions and national legislation they

should, as asylum-seekers, have enjoyed special protection and more

favourable treatment than unlawful immigrants. The detention of

asylum-seekers could not be justified unless their application for

asylum was considered manifestly ill-founded, which was clearly not so

in the applicants' case, as the other members of their family were

granted refugee status by the French Office for the Protection of

Refugees and Stateless Persons (see paragraph 11 above).

39. According to the Government, the applicants' stay in the transit

zone was not comparable to detention. They had been lodged in part of

the Hôtel Arcade where the "physical conditions" of the accommodation

were described as satisfactory even in the CPT's report. Their

separation from the hotel's other residents had been justified by the

concern to prevent them from evading surveillance by the airport and

border police and settling unlawfully in France. The original reason

why they were held and for the length of time they were held had been

their obstinacy in seeking to enter French territory despite being

refused leave to enter. They could not therefore "validly complain of

a situation which they had largely created", as the Court itself had

held in the Kolompar v. Belgium judgment of 24 September 1992 (Series A

no. 235-C).

40. While admitting that the applicants' stay in the international

zone was no different - when its length was taken into account - from

"detention" in the ordinary meaning of that term, the Commission

concluded that Article 5 (art. 5) was not applicable. It considered

that the degree of physical constraint required for the measure

concerned to be described as "deprivation of liberty" was lacking in

this case.

41. The Court notes in the first place that in the fourth

paragraph of the Preamble to its Constitution of 27 October 1946

(incorporated into that of 4 October 1958), France enunciated the right

to asylum in "the territories of the Republic" for "everyone persecuted

on account of his action in the cause of freedom". France is also

party to the 1951 Geneva Convention Relating to the Status of Refugees,

Article 1 of which defines the term "refugee" as "any person who [has

a] well-founded fear of being persecuted for reasons of race, religion,

nationality, membership of a particular social group or political

opinion".

The Court also notes that many member States of the Council of

Europe have been confronted for a number of years now with an

increasing flow of asylum-seekers. It is aware of the difficulties

involved in the reception of asylum-seekers at most large European

airports and in the processing of their applications. The report of

the Parliamentary Assembly of the Council of Europe, of

12 September 1991, is revealing on this point (see paragraph 26 above).

Contracting States have the undeniable sovereign right to control

aliens' entry into and residence in their territory. The Court

emphasises, however, that this right must be exercised in accordance

with the provisions of the Convention, including Article 5 (art. 5).

42. In proclaiming the right to liberty, paragraph 1 of Article 5

(art. 5-1) contemplates the physical liberty of the person; its aim is

to ensure that no one should be dispossessed of this liberty in an

arbitrary fashion. On the other hand, it is not in principle concerned

with mere restrictions on the liberty of movement; such restrictions

are governed by Article 2 of Protocol No. 4 (P4-2). In order to

determine whether someone has been "deprived of his liberty" within the

meaning of Article 5 (art. 5), the starting-point must be his concrete

situation, and account must be taken of a whole range of criteria such

as the type, duration, effects and manner of implementation of the

measure in question. The difference between deprivation of and

restriction upon liberty is merely one of degree or intensity, and not

one of nature or substance (see the Guzzardi v. Italy judgment of

6 November 1980, Series A no. 39, p. 33, para. 92).

43. Holding aliens in the international zone does indeed involve a

restriction upon liberty, but one which is not in every respect

comparable to that which obtains in centres for the detention of aliens

pending deportation. Such confinement, accompanied by suitable

safeguards for the persons concerned, is acceptable only in order to

enable States to prevent unlawful immigration while complying with

their international obligations, particularly under the 1951 Geneva

Convention Relating to the Status of Refugees and the European

Convention on Human Rights. States' legitimate concern to foil the

increasingly frequent attempts to circumvent immigration restrictions

must not deprive asylum-seekers of the protection afforded by these

conventions.

Such holding should not be prolonged excessively, otherwise there

would be a risk of it turning a mere restriction on liberty -

inevitable with a view to organising the practical details of the

alien's repatriation or, where he has requested asylum, while his

application for leave to enter the territory for that purpose is

considered - into a deprivation of liberty. In that connection account

should be taken of the fact that the measure is applicable not to those

who have committed criminal offences but to aliens who, often fearing

for their lives, have fled from their own country.

Although by the force of circumstances the decision to order

holding must necessarily be taken by the administrative or police

authorities, its prolongation requires speedy review by the courts, the

traditional guardians of personal liberties. Above all, such

confinement must not deprive the asylum-seeker of the right to gain

effective access to the procedure for determining refugee status.

44. The applicants arrived at Paris-Orly Airport from Damascus on

9 March 1992. They stated that they had fled their country of origin,

Somalia, because they had been persecuted by the regime in power and

their lives were in danger (see paragraph 7 above). As their passports

had been falsified, the airport and border police refused them leave

to enter French territory. They were then held in the airport's

transit zone (and its extension, the floor of the Hôtel Arcade adapted

for the purpose) for twenty days, that is to say until 29 March, when

the Minister of the Interior refused them leave to enter as

asylum-seekers (see paragraph 11 above). They were immediately sent

back to Syria without being able to make an effective application to

the authority having jurisdiction to rule on their refugee status (see

paragraph 9 above).

45. The Court notes that for the greater part of the above period the

applicants, who claimed to be refugees, were left to their own devices.

They were placed under strict and constant police surveillance and had

no legal and social assistance - particularly with a view to completing

the formalities relating to an application for political refugee status

- until 24 March, when a humanitarian association, which had in the

meantime been informed of their presence in the international zone, put

them in contact with a lawyer. Moreover, until 26 March neither the

length nor the necessity of their confinement were reviewed by a court

(see paragraph 10 above).

The applicants' lawyer applied on that date to the Créteil

tribunal de grande instance, which, in making an order under the

expedited procedure on 31 March (see paragraph 12 above), described the

applicants' confinement as an "arbitrary deprivation of liberty". In

a more general context, namely consideration of the constitutionality

of the Law of 6 September 1991, the Constitutional Council had already

noted on 25 February 1992 the restriction on personal liberty caused

by "the combined effect of the degree of restriction of movement

[holding an alien in the transit zone] entails and its duration" (see

paragraph 21 above). The period of confinement criticised by the

Constitutional Council on that occasion was equivalent to the length

of time the applicants were held.

46. In concluding that there was no deprivation of liberty, the

Government and the Commission attached particular weight to the fact

that the applicants could at any time have removed themselves from the

sphere of application of the measure in issue. More particularly, the

Government argued that although the transit zone is "closed on the

French side", it remains "open to the outside", so that the applicants

could have returned of their own accord to Syria, where their safety

was guaranteed, in view of the assurances which the Syrian authorities

had given the French Government. The Commission added that the

applicants had not shown that their lives or physical integrity were

in danger in Syria or that the French authorities had prevented them

from boarding a plane bound for that country.

47. The applicants maintained that such reasoning would amount to

binding the application of Article 5 (art. 5) to that of Article 3 of

the Convention (art. 3); this would be to ignore the specific object

of Article 5 (art. 5), and its wording, which had to be strictly

construed; it would also deprive Article 5 (art. 5) of any useful

effect, particularly with regard to asylum applications.

48. The mere fact that it is possible for asylum-seekers to leave

voluntarily the country where they wish to take refuge cannot exclude

a restriction on liberty, the right to leave any country, including

one's own, being guaranteed, moreover, by Protocol No. 4 to the

Convention (P4). Furthermore, this possibility becomes theoretical if

no other country offering protection comparable to the protection they

expect to find in the country where they are seeking asylum is inclined

or prepared to take them in.

Sending the applicants back to Syria only became possible, apart

from the practical problems of the journey, following negotiations

between the French and Syrian authorities. The assurances of the

latter were dependent on the vagaries of diplomatic relations, in view

of the fact that Syria was not bound by the Geneva Convention relating

to the Status of Refugees.

49. The Court concludes that holding the applicants in the transit

zone of Paris-Orly Airport was equivalent in practice, in view of the

restrictions suffered, to a deprivation of liberty. Article 5 para. 1

(art. 5-1) is therefore applicable to the case.

B. Compatibility of the deprivation of liberty found

established in the case with paragraph 1 of Article 5

(art. 5-1)

50. It remains to be determined whether the deprivation of liberty

found to be established in the present case was compatible with

paragraph 1 of Article 5 (art. 5-1). Where the "lawfulness" of

detention is in issue, including the question whether "a procedure

prescribed by law" has been followed, the Convention refers essentially

to national law and lays down the obligation to conform to the

substantive and procedural rules of national law, but it requires in

addition that any deprivation of liberty should be in keeping with the

purpose of Article 5 (art. 5), namely to protect the individual from

arbitrariness (see, among many other authorities, the Kemmache

v. France (no. 3) judgment of 24 November 1994, Series A no. 296-C,

pp. 19-20, para. 42).

In laying down that any deprivation of liberty must be effected

"in accordance with a procedure prescribed by law", Article 5 para. 1

(art. 5-1) primarily requires any arrest or detention to have a legal

basis in domestic law. However, these words do not merely refer back

to domestic law; like the expressions "in accordance with the law" and

"prescribed by law" in the second paragraphs of Articles 8 to 11

(art. 8-2, art. 9-2, art. 10-2, art. 11-2), they also relate to the

quality of the law, requiring it to be compatible with the rule of law,

a concept inherent in all the Articles of the Convention.

In order to ascertain whether a deprivation of liberty has

complied with the principle of compatibility with domestic law, it

therefore falls to the Court to assess not only the legislation in

force in the field under consideration, but also the quality of the

other legal rules applicable to the persons concerned. Quality in this

sense implies that where a national law authorises deprivation of

liberty - especially in respect of a foreign asylum-seeker - it must

be sufficiently accessible and precise, in order to avoid all risk of

arbitrariness. These characteristics are of fundamental importance

with regard to asylum-seekers at airports, particularly in view of the

need to reconcile the protection of fundamental rights with the

requirements of States' immigration policies.

51. The applicants asserted that their detention had no legal basis,

whether under the French legislation in force at the time or under

international law. They had found themselves in a legal vacuum in

which they had neither access to a lawyer nor information about exactly

where they stood at the time. In support of the above argument, they

rely on the reasons for the judgment of the Créteil tribunal de grande

instance, ruling on their application for an order under the expedited

procedure.

52. The Court notes that even though the applicants were not in

France within the meaning of the Ordinance of 2 November 1945, holding

them in the international zone of Paris-Orly Airport made them subject

to French law.

Despite its name, the international zone does not have

extraterritorial status. In its decision of 25 February 1992 the

Constitutional Council did not challenge the legislature's right to lay

down rules governing the holding of aliens in that zone. For example,

the Law of 6 July 1992 (see paragraph 23 above) provides, inter alia,

for the intervention of the ordinary courts to authorise holding for

more than four days, the assistance of an interpreter and a doctor and

the possibility of communicating with a lawyer. The Decree of

15 December 1992 (see paragraph 24 above) lays down the procedural

rules applicable to proceedings brought in accordance with that Law.

The Decree of 2 May 1995 (see paragraph 25 above) gives the delegate

of the United Nations High Commissioner for Refugees or his

representatives and humanitarian associations permanent access to the

zone.

However, these rules - which postdate the facts of the case -

were not applicable at the time to the applicants.

53. The Court emphasises that from 9 to 29 March 1992 the applicants

were in the situation of asylum-seekers whose application had not yet

been considered. In that connection, neither the Decree of 27 May 1982

nor the - unpublished - circular of 26 June 1990 (the only text at the

material time which specifically dealt with the practice of holding

aliens in the transit zone) constituted a "law" of sufficient "quality"

within the meaning of the Court's case-law; there must be adequate

legal protection in domestic law against arbitrary interferences by

public authorities with the rights safeguarded by the Convention (see

the Malone v. the United Kingdom judgment of 2 August 1984, Series A

no. 82, p. 32, para. 67). In any event, the Decree of 27 May 1982 did

not concern holding aliens in the international zone. The

above-mentioned circular consisted, by its very nature, of instructions

given by the Minister of the Interior to Prefects and Chief Constables

concerning aliens refused leave to enter at the frontiers. It was

intended to provide guidelines for immigration control at ports and

airports. Moreover, the brief section it devoted to holding in the

international zone and aliens' rights contains no guarantees comparable

to those introduced by the Law of 6 July 1992. At the material time

none of these texts allowed the ordinary courts to review the

conditions under which aliens were held or, if necessary, to impose a

limit on the administrative authorities as regards the length of time

for which they were held. They did not provide for legal, humanitarian

and social assistance, nor did they lay down procedures and time-limits

for access to such assistance so that asylum-seekers like the

applicants could take the necessary steps.

54. The French legal rules in force at the time, as applied in the

present case, did not sufficiently guarantee the applicants' right to

liberty.

There has accordingly been a breach of Article 5 para. 1

(art. 5-1).

III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

55. Under Article 50 of the Convention (art. 50),

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the ... Convention, and if the internal law of the said

Party allows only partial reparation to be made for the

consequences of this decision or measure, the decision of the

Court shall, if necessary, afford just satisfaction to the

injured party."

A. Damage

56. The applicants claimed to have suffered prejudice on account of

their unlawful detention, which they assessed - on the basis of the

French Court of Cassation's case-law on this subject - at 80,000 French

francs (FRF), that is FRF 1,000 each per day of detention. In addition

to that sum they claimed damage resulting from the fact that it was

impossible for them to gain access to the procedure for obtaining

refugee status and from loss of the opportunity to have that status

recognised, justifying the award of a lump sum of FRF 120,000.

57. The Government argued that the applicants' claims should be

dismissed.

58. According to the Delegate of the Commission, only the first

request should be granted by the Court, if it saw fit. As regards the

second request, since the right to reside in the territory of a

Contracting State, and more particularly the right to obtain political

asylum there, was not guaranteed by the Convention, there could be no

loss of opportunity.

59. Having regard to the particular circumstances of the case, the

Court considers that the finding of a violation of Article 5 (art. 5)

in itself constitutes sufficient just satisfaction.

B. Costs and expenses

60. In respect of the costs and expenses incurred in the proceedings

in the Créteil tribunal de grande instance and then before the

Convention institutions, the applicants claimed the sum of FRF 57,000,

not including value-added tax (VAT).

61. The Government did not comment; the Delegate of the Commission

left this question to the Court's discretion.

62. Having regard to its case-law on the question, and making its

assessment on an equitable basis, the Court fixes the amount to be paid

for costs and expenses, including VAT, at FRF 57,000, less the

FRF 9,758 paid by the Council of Europe in legal aid.

C. Default interest

63. According to the information available to the Court, the

statutory rate of interest applicable in France at the date of adoption

of the present judgment is 6.65% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government's preliminary objection;

2. Holds that Article 5 para. 1 of the Convention (art. 5-1) applies

in the case and has been breached;

3. Holds that this judgment in itself constitutes sufficient just

satisfaction for the alleged prejudice;

4. Holds that the respondent State is to pay to the applicants,

within three months, 57,000 (fifty-seven thousand) French francs,

including VAT, less 9,758 (nine thousand seven hundred and

fifty-eight) French francs, for costs and expenses and that

simple interest at an annual rate of 6.65% shall be payable from

the expiry of the above-mentioned three months until settlement;

5. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 25 June 1996.

Signed: Rudolf BERNHARDT

President

Signed: Herbert PETZOLD

Registrar