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You are here: BAILII >> Databases >> European Court of Human Rights >> HLR v. FRANCE - 24573/94 [1997] ECHR 23 (29 April 1997) URL: http://www.bailii.org/eu/cases/ECHR/1997/23.html Cite as: [1997] ECHR 23, (1998) 26 EHRR 29, [1998] 26 EHRR 29, 26 EHRR 29 |
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JISCBAILII_CASE_IMMIGRATION
In the case of H.L.R. v. France (1),
The European Court of Human Rights, sitting, in accordance with
Rule 51 of Rules of Court A (2), as a Grand Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mr J. De Meyer,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr D. Gotchev,
Mr P. Jambrek,
Mr K. Jungwiert,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 29 November 1996 and on
20 February and 22 April 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 11/1996/630/813. 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") and by the Government of the
French Republic ("the Government") on 25 January and 29 February 1996
respectively, within the three-month period laid down by Article 32
para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the Convention").
It originated in an application (no. 24573/94) against France lodged
with the Commission under Article 25 (art. 25) by a Colombian national,
H.L.R., on 4 July 1994. The applicant asked the Court not to reveal
his identity.
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
Government's application referred to Article 48 (art. 48). The object
of the request and of the application 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 3 of the Convention (art. 3).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30).
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. Ryssdal, the President of the
Court (Rule 21 para. 4 (b)). On 8 February 1996, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr Thór Vilhjálmsson, Mr A. Spielmann,
Mr J. De Meyer, Mr M.A. Lopes Rocha, Mr L. Wildhaber,
Mr G. Mifsud Bonnici and Mr K. Jungwiert (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 Ryssdal, acting
through the Registrar, consulted the Agent of the Government, the
applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant
to the order made in consequence, the Registrar received the
Government's memorial on 30 July 1996 and the applicant's memorial on
12 August. On 12 September the Secretary to the Commission informed
the Registrar that the Delegate would submit his observations at the
hearing.
5. On 27 June 1996 the Chamber decided to relinquish jurisdiction
forthwith in favour of a Grand Chamber (Rule 51).
The Grand Chamber to be constituted included ex officio
Mr Ryssdal, President of the Court, Mr R. Bernhardt, Vice-President,
and the other members (see paragraph 3 above) and the substitute judges
(namely, Mr R. Macdonald, Mr A.N. Loizou, Mr A.B. Baka and
Mr U. Lohmus) of the Chamber which had relinquished jurisdiction
(Rule 51 para. 2 (a) and (b)). On 1 July 1996, in the presence of the
Registrar, the President drew by lot the names of the seven additional
judges, namely Mr F. Gölcüklü, Mr F. Matscher, Mrs E. Palm,
Mr I. Foighel, Mr R. Pekkanen, Mr J. Makarczyk and Mr D. Gotchev.
Subsequently Mr P. Jambrek replaced Mr Macdonald, who was unable to
take part in the further consideration of the case (Rule 22 para. 1 and
Rule 51 para. 6).
6. On 26 September 1996 Mr Ryssdal, after consulting the members of
the Grand Chamber, granted leave to Rights International, a
non-governmental organisation based in New York, to submit written
comments subject to certain conditions. These were received at the
registry on 31 October 1996.
The Court received Amnesty International's reports for 1995 and
1996.
7. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
25 November 1996. The Court had held a preparatory meeting beforehand.
At that meeting, the Grand Chamber decided not to include in the
case file the documents lodged on 24 October and
12, 20 and 22 November 1996 by the applicant, since they were late and
as the Government had objected.
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,
Mr E. Boscq, central administration attaché,
Ministry of the Interior, Advisers;
(b) for the Commission
Mr J.-C. Geus, Delegate;
(c) for the applicant
Mrs H. Clément, of the Paris Bar, Counsel,
Mr G. Parent, Adviser.
The Court heard addresses by Mr Geus, Mrs Clément and Mr Dobelle.
AS TO THE FACTS
I. Circumstances of the case
8. H.L.R., who is a Colombian national and was born in 1968, is
currently in France subject to a compulsory residence order.
A. The applicant's conviction
9. On 14 May 1989 the applicant, who was travelling from Colombia
to Italy, was arrested while in transit at Roissy Airport in possession
of a package containing 580 grammes of cocaine.
According to the record of the interviews that took place on
16 May 1989, whilst he was in police custody H.L.R. supplied
information on the instigators of the traffic and on H.B., by whom he
had been recruited. That information subsequently enabled Interpol to
identify H.B., who appeared in their records under two different names
and had been arrested on 21 May 1989 at Frankfurt-on-Main Airport in
possession of 552 grammes of cocaine. H.B. was convicted and on
23 January 1990 was sentenced by the Frankfurt-on-Main Regional Court
to two years and eight months' imprisonment; he was deported to
Colombia pursuant to an order issued on 12 April 1990 by the
Chief Administrative Officer (Landrat) of the district (Landkreis) of
Darmstadt-Dieking.
10. In the meantime, on 25 September 1989, the Bobigny Criminal Court
had convicted the applicant of an offence under the misuse of drugs
legislation and sentenced him to five years' imprisonment. It also
made an order permanently excluding him from French territory.
11. On 24 July 1992 the Paris Court of Appeal upheld both that
judgment and the judgment of 22 June 1992 of the same court whereby his
application to have the permanent exclusion order cancelled was
dismissed.
12. On 31 July 1992 the applicant, arguing in particular that he had
assisted the judicial authorities, petitioned the President of the
Republic to have the exclusion order rescinded. His petition was
dismissed on 20 September 1994.
13. On 18 December 1992 the Bobigny public prosecutor, who had
initially instructed the Prefect of the Dordogne département to enforce
the exclusion order on 30 December, the date of the applicant's
release, ordered that his deportation be stayed.
14. After serving his sentence, the applicant was given
accommodation, at the home of one of his prison visitors.
B. The deportation procedure
1. The deportation order
15. Notwithstanding that the petition to the President was pending,
the Minister of the Interior directed that the applicant's file be
submitted to the Aliens' Deportation Board for an opinion in accordance
with section 23 of the Ordinance of 2 November 1945 as amended
(see paragraph 24 below).
16. On 17 February 1994, having been informed of the risks the
applicant would run if he were deported to Colombia, the
Aliens' Deportation Board expressed the following opinion:
"The Board is of the opinion that [H.L.R.] should not be deported
as his presence in France does not constitute a serious threat
to public order and there are in addition good reasons for
believing that his integration in the national community is
possible."
17. On 26 April 1994 the Minister of the Interior nonetheless issued
an order for the applicant's deportation. He relied on the following
reasons:
"Whereas Mr H.L.R., a Colombian national, ..., committed a
drugs offence in 1989 by illegally importing nearly 600 grammes
of heroin [sic];
Whereas on account of his general behaviour the presence of this
foreign national in French territory represents a serious threat
to public order;
Having regard to the opinion issued on 17 February 1994 by the
Board referred to in section 24 of the Ordinance [no. 45-2658 of
2 November 1945, as amended, concerning the conditions of entry
and residence of aliens in France]."
18. The Prefect of the Dordogne département served the
deportation order on the applicant by a letter of 9 May 1994, which the
applicant received on 20 May. He stated that the applicant was to be
deported to Colombia, unless he was accepted by another country, within
one month of the date of receipt of the letter. On 20 June 1994 the
Prefect granted the applicant a final extension of one month in which
to find a host country.
2. The application to have the deportation order rescinded
19. On 30 May 1994 the applicant applied to the
Minister of the Interior to have the deportation order rescinded. His
application was rejected on 17 June 1994 on the following grounds:
"I regret [to have] to inform you that, at the present time, in
spite of the various considerations you cite in your client's
favour, it is impossible for me to grant your application because
the acts which gave rise to the order for your client's
deportation occurred recently and were serious. In 1989 he was
involved in the trafficking of almost 600 grammes of heroin
[sic].
Consequently his presence in France continues to constitute a
serious threat to public order."
3. The applications for judicial review
20. At the same time, by applications lodged with the
Bordeaux Administrative Court and registered on 7 and 28 June 1994 the
applicant sought judicial review of the deportation order and of the
refusal to rescind it.
21. In its judgment of 18 April 1996 served on 17 July 1996, the
court joined and then dismissed the applications. It gave the
following reasons:
"Under the final paragraph of section 27 bis of the Ordinance of
2 November 1945, `an alien shall not be sent to a country if he
shows that he is in danger of losing his life or his liberty
there or that he will be exposed there to treatment contrary to
Article 3 (art. 3) of the Convention for the Protection of
Human Rights and Fundamental Freedoms of 4 November 1950'; by
virtue of the provisions of Article 2 (art. 2) of the
European Convention on Human Rights, `1. Everyone's right to life
shall be protected by law ...' and of Article 3 of that
Convention (art. 3): `No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.'; the impugned
deportation order of 26 April 1994 did no more than enjoin
[Mr H.L.R.] to leave French territory; it follows that, in any
event, the submission that his return to Colombia would infringe
the provisions cited above (art. 2, art. 3) is ineffective.
... [Mr H.L.R.] is single, has no children and no family life in
France; it follows that the submission that the provisions [of
Article 8 (art. 8) of the Convention for the Protection of
Human Rights and Fundamental Freedoms] have been infringed cannot
be accepted."
22. On 10 September 1996 the applicant appealed against that judgment
to the Bordeaux Administrative Court of Appeal. The outcome of the
appeal is not known.
4. The compulsory residence order
23. In the meantime, the Minister of the Interior had issued a
compulsory residence order on 12 July 1994 pursuant to section 28 of
Ordinance no. 45-2658 of 2 November 1945 as amended (see paragraph 24
below). Considering that it had been established that the applicant
was unable to leave France at that time, the Minister ordered him to
reside in a designated location "until such time as he [was] in a
position to comply with the deportation order against him". That
position has remained unchanged.
II. Relevant domestic law
24. The applicant's deportation is governed by Ordinance no. 45-2658
of 2 November 1945 "on the conditions of entry and residence [of
aliens] in France", as amended by Law no. 93-1027 of 24 August 1993.
The relevant provisions, in the wording applicable at the date of the
impugned decision, are as follows:
Section 23
"Subject to the provisions of section 25, deportation may be
decided by order of the Minister of the Interior if an alien's
presence on French territory constitutes a serious threat to
public order.
The deportation order may at any time be rescinded by the
Minister of the Interior. Where the application for an order to
be rescinded is made on the expiry of a period of five years from
the actual execution of the deportation order, it may be rejected
only after the opinion of the board provided for in section 24,
before which the applicant may be represented, has been obtained.
..."
Section 24
"Deportation as provided for in section 23 may be ordered only
where the following conditions are satisfied:
(1) The alien must be given advance notice in accordance with
the conditions laid down in a decree of the Conseil d'Etat;
(2) The alien shall be summoned to be interviewed by a board
convened by the prefect and composed as follows:
the president of the tribunal de grande instance of the
administrative capital of the département or a judge delegated
by him, chairman;
a judicial officer (magistrat) designated by the
general assembly of the tribunal de grande instance of the
administrative capital of the département; and
an administrative court judge.
The head of the aliens' department at the prefecture shall act
as rapporteur; the director of health and social affairs of the
département or his representative shall be heard by the board.
They shall not attend the board's deliberations.
The summons, which must be served on the alien at least
fifteen days before the board's meeting, shall inform him that
he has the right to be assisted by a lawyer or by any other
person of his choice and to be heard with the help of an
interpreter.
The alien may request legal aid in accordance with Law no. 91-647
of 10 July 1991 on legal aid. Reference shall be made to this
possibility in the summons. A provisional grant of legal aid may
be decided by the chairman of the board.
The board's hearing shall be public. The chairman shall ensure
the proper conduct of the proceedings. All orders made by him
to that end must be executed immediately. Before the board the
alien may put forward all the reasons that militate against his
deportation. A report recording the alien's statements shall be
transmitted, together with the board's opinion, to the
Minister of the Interior, who shall give a decision. The board's
opinion shall also be communicated to the person concerned."
Section 25
"A deportation order made under section 23 may not be issued
against the following persons:
(1) a minor alien under 18 years of age;
(2) an alien who proves by any means that he has habitually
resided in France since the age of 6 or younger;
(3) an alien who proves by any means that he has habitually
resided in France for more than fifteen years or an alien who has
lawfully resided in France for more than ten years, unless for
the whole of this period he has been in possession of a
temporary residence permit bearing the word 'student';
(4) an alien, who has been married for at least one year and
whose spouse is a French national provided that they have not
ceased to live together and that the spouse has kept his or her
French nationality;
(5) an alien who is the father or the mother of a French child
residing in France provided that he or she exercises parental
rights, even only on a partial basis, in respect of the child or
actually provides for him or her;
(6) an alien who is in receipt of an industrial accident or
occupational disability pension paid by a French institution
where his or her permanent disability is at least 20%;
(7) an alien residing lawfully in France by virtue of one of
the residence permits provided for in this Ordinance or in the
international agreements, who has not been sentenced with final
effect to a non-suspended term of imprisonment of one year or
more.
However, by way of derogation to (7) above, an alien may be
expelled if he has been sentenced with final effect to a
non-suspended term of imprisonment for an offence under
section 21 of this Ordinance, sections 4 and 8 of Law no. 73-548
of 27 June 1973 on multiple occupation, Articles L-362-3,
L-364-2-1, L-364-3 and L-364-5 of the Labour Code or
Articles 225-5 to 225-11 of the Criminal Code.
The aliens referred to in sub-paragraphs (1) to (6) may not be
the subject of a removal order made under section 22 of this
Ordinance.
By way of derogation from the provisions of this section, a
deportation order under sections 23 and 24 may be made against
an alien falling within one of the categories listed in
sub-paragraphs (3), (4), (5) and (6) if he or she has been
sentenced with final effect to a non-suspended term of
imprisonment of at least five years."
Section 27 bis
"An alien who is the subject of a deportation order or who has
to be removed from France shall be sent to:
(1) the country of which he is a national unless the
French Office for the Protection of Refugees and
Stateless Persons or the Refugee Appeals Board has granted him
refugee status or has not yet ruled on his application for
asylum; or
(2) a country which has delivered him a travel document which
is currently valid; or
(3) a country which he may lawfully enter.
An alien shall not be sent to a country in which he shows that
there is a danger that he will lose his life or liberty or that
he will there be exposed to treatment contrary to Article 3
(art. 3) of the Convention for the Protection of Human Rights and
Fundamental Freedoms of 4 November 1950."
Section 28 (1)
"An alien subject to a deportation order or required to leave
France who proves that it is impossible for him to leave France
by showing that he can neither return to his country of origin
nor travel to any other country may, by way of derogation from
section 35 bis, be ordered to reside in a designated location
where he must report to the police and the gendarmerie at regular
intervals."
PROCEEDINGS BEFORE THE COMMISSION
25. H.L.R. applied to the Commission on 4 July 1994. He complained
that if he were deported to Colombia he would run a serious risk of
being treated in a manner contrary to Article 3 of the Convention
(art. 3).
26. On 8 July 1994 the Commission indicated to the French Government
under Rule 36 of the Commission's Rules of Procedure that it was
desirable, in the interests of the parties and the proper conduct of
the proceedings, to refrain from deporting the applicant. The
Commission has renewed that recommendation on several occasions, the
most recent being 16 January 1996.
27. The Commission declared the application (no. 24573/94) admissible
on 2 March 1995. In its report of 7 December 1995 (Article 31)
(art. 31), it expressed the opinion by nineteen votes to ten that there
would be a violation of Article 3 (art. 3) if the applicant were to be
deported to Colombia. The full text of the Commission's opinion and
of the four separate opinions 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 1997-III), but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
28. In their memorial, the Government invited the Court to dismiss
Mr H.L.R.'s application.
29. The applicant requested it to hold that his forced removal from
French territory would constitute a violation of Article 3 of the
Convention (art. 3).
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)
30. The applicant alleged that if he were deported to Colombia he
would certainly be subjected there to treatment proscribed by Article 3
of the Convention (art. 3), which provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
In view of his criminal record in France, he would not be able
to find a country willing to accept him other than his country of
origin. Yet, in Colombia, he would be exposed to vengeance by the
drug traffickers who had recruited him as a smuggler.
By virtue of the positive obligations incumbent on the States and
the absolute character of the right concerned, Article 3 (art. 3)
applied to inhuman and degrading treatment resulting from the actions
of private individuals where a Contracting State had, through its acts
or passivity, failed to comply with its duties under the Convention.
As the French State had sought and obtained from H.L.R. information on
the organisers of the traffic, it had a duty to protect him. The
communications exchanged between different branches of Interpol, and
the documents from the German proceedings against H.B., from whom the
applicant had received his instructions, showed that the applicant's
statements had enabled H.B., who was arrested in Germany and convicted
of drug trafficking, to be identified (see paragraph 9 above).
In addition to the endemic violence perpetuated by the
Colombian criminal organisations, the applicant ran a real and personal
risk; his situation would consequently be worse than that of other
Colombians. By informing on drug traffickers he had broken the law of
silence. As several Colombian lawyers' groups had stated, informers
were frequently subjected to reprisals. In addition, in her various
letters to the applicant (the first, which is in the Commission's file,
dated 25 September 1993 and the last 13 August 1996) his aunt had
reminded him that his life would be in danger if he returned because
the person who had recruited him was waiting for him. H.B., who had
been released in the meantime, regularly questioned her about the
applicant, of whom he had photographs, and wanted revenge.
Furthermore, the Colombian authorities were unable to offer
H.L.R. adequate protection against the risk. The degree to which
organisations connected with drug trafficking had infiltrated the whole
machinery of government was such that Colombia was sometimes referred
to as a "narco-democracy". Wholesale human rights violations caused
by the acts or omissions of State officials had been condemned on all
sides. The ineffectiveness of the judicial institutions meant that it
was impossible to accede to requests for protection and that 90% of
murders went unpunished. Besides, no provision was made under
Colombian legislation for persons who had cooperated with the
judicial authorities of another country to be given special protection
from the threat of reprisals by those on whom they had informed.
The drug cartels had infiltrated the security and
intelligence services and corruption was rife in the judicial system
and in the police and armed forces. Certain paramilitary groups, whose
role was to back up the army in its fight against guerilla movements
and opposition groups, received financial aid from the drug trade.
They controlled large areas of Colombia and were responsible for the
escalation of violence since the end of the 1980s.
31. The Commission agreed in substance with that view. In
determining whether there was a risk of treatment proscribed by
Article 3 (art. 3), strict criteria had to be applied regard being had
to the absolute character of that provision (art. 3). Only the
existence of an objective danger could be taken into account, such as
the nature of the political regime in the State to which the applicant
was likely to be sent, or a specific situation existing in that State.
Making such a finding did not necessarily require that the receiving
State be in any way responsible. In the instant case, the risk did not
come from the Colombian authorities. Given the special circumstances
prevailing in Colombia with respect to drug trafficking, the
applicant's criminal activities in connection with dealers in narcotics
and his statements to the French police, he faced, if deported, a real
and serious risk of being subjected to treatment proscribed by
Article 3 (art. 3). It appeared more than likely that the
Colombian authorities would not be able to give H.L.R. adequate
protection.
32. The Government maintained, by way of primary submission, that the
application was incompatible ratione materiae with the provisions of
Article 3 of the Convention (art. 3) since the risk of inhuman or
degrading treatment relied on by the applicant did not stem from the
conduct of the Colombian authorities.
Article 3 (art. 3) could be construed as also applying in cases
where the risk of such treatment emanated exclusively from
private individuals or groups only by considerably extending the scope
of the Convention. The travaux préparatoires on Article 3 (art. 3),
cited by the applicant, did not assist him since an amendment expressly
referring to the absolute character of the ban on proscribed treatment
had been withdrawn. In support of their contention, the Government
also relied on Article 1 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment adopted in
New York on 10 December 1984 which expressly includes an element of
intent in the definition of "torture". That text represented the most
recent statement of international law on the subject. Likewise, the
Geneva Convention of 28 July 1951 relating to the Status of Refugees
required an element of intent on the part of the official authorities
before a person could be granted refugee status.
In any event, H.L.R. had not shown that the risk was real and
serious. The features of the case that were related to the applicant's
personal situation were based solely on his claims and were not
substantiated by any prima facie evidence. With respect to protection
by the authorities of the country of destination, it was impossible to
require total safety. Despite the means deployed by developed
countries, States were not always able to guarantee the security of,
for instance, the most senior members of the judiciary. In the instant
case, there was nothing to show that the Colombian authorities would
be unable to provide protection appropriate to the applicant's
situation. In conclusion, deporting him to his country of origin could
not be seen as a measure which would definitely and inevitably place
him in a situation where his life or his physical integrity would be
threatened.
33. The Court observes firstly that the Contracting States have the
right, as a matter of well-established international law, and subject
to their treaty obligations, including the Convention, to control the
entry, residence and expulsion of aliens (see the Vilvarajah and
Others v. the United Kingdom judgment of 30 October 1991, Series A
no. 215, p. 34, para. 102).
34. However, the expulsion of an alien by a Contracting State may
give rise to an issue under Article 3 (art. 3), and hence engage the
responsibility of that State under the Convention, where substantial
grounds have been shown for believing that the person in question, if
deported, would face a real risk of being subjected to treatment
contrary to Article 3 (art. 3) in the receiving country. In these
circumstances, Article 3 (art. 3) implies the obligation not to deport
the person in question to that country (see the Soering
v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35,
paras. 90-91; the Cruz Varas and Others v. Sweden judgment of
20 March 1991, Series A no. 201, p. 28, paras. 69-70; the
Vilvarajah and Others judgment cited above, p. 34, para. 103; the
Chahal v. the United Kingdom judgment of 15 November 1996, Reports of
Judgments and Decisions 1996-V, p. 1853, paras. 73-74, and p. 1855,
para. 80; and the Ahmed v. Austria judgment of 17 December 1996,
Reports 1996-VI, p. 2206, para. 39).
35. The Court further reiterates that Article 3 (art. 3), which
enshrines one of the fundamental values of democratic societies
(see the Soering judgment cited above, p. 34, para. 88), prohibits in
absolute terms torture or inhuman or degrading treatment or punishment,
irrespective of the victim's conduct (see the Ireland
v. the United Kingdom judgment of 18 January 1978, Series A no. 25,
p. 65, para. 163; the Chahal judgment cited above, p. 1855, para. 79;
and the Ahmed judgment cited above, pp. 2206-07, paras. 40-41).
36. Under the Convention system, the establishment of the facts is
primarily a matter for the Commission (Articles 28 para. 1 and 31)
(art. 28-1, art. 31). Accordingly it is only in exceptional
circumstances that the Court will use its powers in this area (see the
Cruz Varas and Others judgment cited above, p. 29, para. 74). However,
the Court is not bound by the findings in the Commission's report and
remains free to verify and to assess the facts itself.
37. In determining whether it has been shown that the applicant runs
a real risk, if deported to Colombia, of suffering treatment proscribed
by Article 3 (art. 3), the Court will assess the issue in the light of
all the material placed before it or, if necessary, material obtained
proprio motu (see the Vilvarajah and Others judgment cited above,
p. 36, para. 107). Furthermore, as the risk is assessed as at the date
the Court considers the case, it is necessary to take into account
information that has come to light since the case was examined by the
Commission.
38. The Court notes that on 14 May 1989 the applicant, who was
travelling from Colombia to Italy, was arrested in possession of drugs
while in transit at Roissy Airport. On being convicted of drug
trafficking, he was sentenced to a term of imprisonment and an order
was made permanently excluding him from French territory. While in
detention, he gave the names of three drug traffickers, which
subsequently enabled one of them to be identified on the basis of the
information the applicant had provided (see paragraph 9 above). The
order for the applicant's deportation was made on 26 April 1994 on the
ground that his presence on French territory represented a serious
threat to public order. He is currently subject to a compulsory
residence order in France.
39. It is therefore necessary to examine whether the foreseeable
consequences of H.L.R.'s deportation to Colombia are such as to bring
Article 3 (art. 3) into play. In the present case the source of the
risk on which the applicant relies is not the public authorities.
According to the applicant, it consists in the threat of reprisals by
drug traffickers, who may seek revenge because of certain statements
that he made to the French police, coupled with the fact that the
Colombian State is, he claims, incapable of protecting him from attacks
by such persons.
40. Owing to the absolute character of the right guaranteed, the
Court does not rule out the possibility that Article 3 of the
Convention (art. 3) may also apply where the danger emanates from
persons or groups of persons who are not public officials. However,
it must be shown that the risk is real and that the authorities of the
receiving State are not able to obviate the risk by providing
appropriate protection.
41. Like the Commission, the Court can but note the general situation
of violence existing in the country of destination. It considers,
however, that this circumstance would not in itself entail, in the
event of deportation, a violation of Article 3 (art. 3).
42. The documents from various sources produced in support of the
applicant's memorial provide insight into the tense atmosphere in
Colombia, but do not contain any indication of the existence of a
situation comparable to his own. Although drug traffickers sometimes
take revenge on informers, there is no relevant evidence to show in
H.L.R.'s case that the alleged risk is real. His aunt's letters cannot
by themselves suffice to show that the threat is real. Moreover, there
are no documents to support the claim that the applicant's personal
situation would be worse than that of other Colombians, were he to be
deported.
Amnesty International's reports for 1995 and 1996 do not provide
any information on the type of situation in which the applicant finds
himself. They describe acts of the security forces and guerilla
movements. Only in the 1995 report is there any reference, in a
context which is not relevant to the present case, to criminal acts
attributable to drug trafficking organisations.
43. The Court is aware, too, of the difficulties the
Colombian authorities face in containing the violence. The applicant
has not shown that they are incapable of affording him appropriate
protection.
44. In the light of these considerations, the Court finds that no
substantial grounds have been established for believing that the
applicant, if deported, would be exposed to a real risk of being
subjected to inhuman or degrading treatment within the meaning of
Article 3 (art. 3). It follows that there would be no violation of
Article 3 (art. 3) if the order for the applicant's deportation were
to be executed.
FOR THESE REASONS, THE COURT
Holds by fifteen votes to six that there would be no violation
of Article 3 of the Convention (art. 3) if the order for the
applicant's deportation were to be executed.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 29 April 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following
dissenting opinions are annexed to this judgment:
(a) dissenting opinion of Mr De Meyer;
(b) dissenting opinion of Mr Pekkanen, joined by
Mr Thór Vilhjálmsson, Mr Lopes Rocha and Mr Lohmus;
(c) dissenting opinion of Mr Jambrek.
Initialled: R. R.
Initialled: H. P.
DISSENTING OPINION OF JUDGE DE MEYER
(Translation)
The considerations set out in paragraphs 41 to 43 of the judgment
are unconvincing and do not suffice to allay the fears about the fate
awaiting the applicant on his return to Colombia.
Rather they suggest that he will there face risks at least as
serious as those to which Mr Chahal would have been exposed had he been
sent back to India (1). I fully subscribe to what Mr Pekkanen says on
this subject (2), and to his conclusion in this case (3).
_______________
1. See the Chahal v. United Kingdom judgment of 15 November 1996,
Reports of Judgments and Decisions 1996-V, pp. 1859-62, paras. 98-107.
2. See his dissenting opinion below, para. 4.
3. Ibid., para. 5.
_______________
DISSENTING OPINION OF JUDGE PEKKANEN, JOINED BY
JUDGE THÓR VILHJÁLMSSON, JUDGE LOPES ROCHA AND JUDGE LOHMUS
1. I accept that H.L.R., as a convicted drug trafficker, must be
taken to have understood the consequences of his activities and of his
involvement with drug cartels. However, in spite of this, there can
be no denying that he is still entitled to protection under Article 3
of the Convention (art. 3).
It should be stressed that, while detained in France, H.L.R. had
given the names of three drug traffickers, one of whom was subsequently
identified on the basis of the information he had provided
(paragraph 38 of the judgment). It should not therefore be forgotten
that from the point of view of the drug cartel which recruited him,
H.L.R. was an "informer" and that criminal organisations are prone to
take harsh revenge on such persons in order to intimidate and deter
future "informers".
The real evidence showing that H.L.R's life would be at risk if
he were deported is, admittedly, quite meagre. But that is only to be
expected: killers seldom give advance warning before striking. In my
view to demand more concrete evidence from an applicant who has been
shown to be an "informer" is to impose an unrealistic burden on him.
For "informers" to meet such a fate is not unknown in Colombia.
According to a Joint Special Rapporteurs' Report of
16 January 1995 submitted to the United Nations Commission on
Human Rights on the situation in Colombia, numerous accounts were
received of the killing of persons accused by the guerillas of being
"informers" for the security forces. There is thus every reason to
believe that the much more powerful drug cartels would treat their
"informers" in the same fashion.
2. The probability of H.L.R. being subjected to treatment in
violation of Article 3 of the Convention (art. 3) if deported to
Colombia must also be assessed against the background of the general
situation regarding the protection of human rights in Colombia. In
this respect the above-mentioned report provides a revealing picture.
According to the Special Rapporteurs, Colombia, which has
36 million inhabitants, has one of the world's highest records of
homicide; in 1994 there were about 30,000 cases. In approximately 77%
of all cases it was not possible to ascertain who the perpetrators of
violations of the right to life were. This violence included
extrajudicial, summary or arbitrary executions and torture by
security forces and groups cooperating with them, particularly in the
context of counter-insurgency activities, but also with a view to
protecting particular economic privileges and interests, as well as
large-scale and grave abuses by armed insurgents and armed groups at
the service of drug traffickers or large land owners.
With the aid of their enormous financial resources the
drug cartels and individual drug traffickers have converted their
private armed groups into highly operational forces equipped with
sophisticated weapons. They are reported as having close links with
local military commanders and are active throughout the
national territory. In some instances private forces financed by
drug traffickers are said to cooperate with the security forces.
It is pointed out in the report that the deficiencies in the
administration of justice and the inability of the State authorities
to ensure security for the civilian population are important factors
contributing to the increased level of violence. Between 1982 and
1994, about 270 members of the judiciary are reported to have been
murdered. In respect of the 28,000 violent deaths that occurred in
Colombia during 1992, only 2,717 convictions were obtained through the
criminal justice system, i.e., in barely 10% of the cases.
3. Taking into account the huge commercial interests of drug cartels
and also the powerful position they occupy in Colombia, there is every
reason to believe that they have a vested interest in ensuring that
"informers" do not go unpunished. In the climate of lawlessness which
prevails in Colombia it must be an easy task for a drug cartel to track
down an "informer" and to take revenge on him. The ability of the
State authorities to protect an informer's life or even to bring his
murderers to justice can only be assessed, at the present time, as
being very limited.
4. In the case of Chahal v. the United Kingdom, the Court came to
the conclusion that despite the efforts of the Indian authorities to
bring about reform, problems persist with regard to observance of
human rights by certain members of security forces in Punjab and
elsewhere in India, and that the deportation of a well-known supporter
of Sikh separatism would have been likely to make him a target of
hard-line elements in the security forces. His deportation would thus
have violated Article 3 of the Convention (art. 3).
The Chahal case can be compared with the present case in that the
powerful private armies of drug cartels, which are known to have worked
in cooperation with members of the security forces, seem to be able to
operate with only limited hindrance by the State authorities. Bearing
in mind the overall situation with regard to human rights in Colombia
the applicant is, in my opinion, subject to as great a risk of
reprisals as the applicant in the Chahal case was. I reach the same
conclusion in this case as the Court did in the Chahal case.
5. In conclusion, these are, in my opinion, substantial reasons to
believe that H.L.R., if deported to Colombia, would face a real risk
of being subjected to treatment contrary to Article 3 of the Convention
(art. 3) by the drug cartel concerned. Since the Colombian State
authorities are not currently in a position to provide sufficient
protection against such treatment, I find that Article 3 of the
Convention (art. 3) would be violated if H.L.R. were to be deported to
Colombia.
DISSENTING OPINION OF JUDGE JAMBREK
I regret that I am unable to join the majority in finding no
violation in the case of H.L.R. v. France. For me, the danger or
degree of risk run by the applicant, if deported to Colombia, of
suffering treatment proscribed by Article 3 (art. 3) is the most
important criterion. I agree that such a risk is more predictable when
the State authorities are involved. However, in my view, a clear
distinction cannot be made in abstracto between situations where the
danger comes from the State, or where there is complicity on the part
of the Government, or even where the State is non-existent and the
applicant cannot be protected. Therefore, an assessment must be made
in the light of the particular circumstances of each case.
The key reasons given in paragraphs 42 and 43 of the
present judgment did not convince me that the risk for the applicant
was not sufficiently documented as real and serious, and that the
Colombian authorities were capable of affording him appropriate
protection. Given that the applicant cooperated with the
French authorities while in detention, it would in my view be
appropriate for them to give him at least minimal protection against
the threat of reprisals by Colombian drug traffickers by refraining
from executing the order for his deportation.
On the other hand, it seems that his continued presence on
French territory would not represent such a threat to public order as
to outweigh the risk of his being subjected to treatment proscribed by
Article 3 (art. 3), if deported to Colombia. It does not seem to me
to be likely that he would continue with his criminal activities after
his recruitment by the drug traffickers had been exposed and he had
been punished.
Otherwise, I agree with most of the reasons given in
Judge Pekkanen's dissenting opinion.
