Information Note on the Court’s case-law 26

January 2001

Cisse v. France (dec.) - 51346/99

Decision 16.1.2001 [Section III]

Article 11

Article 11-1

Freedom of peaceful assembly

Intervention by the authorities at a meeting held by a group of foreigners without residence permits: admissible

Article 5

Article 5-1-c

Reasonable suspicion

Arrest by the police of foreigners without residence permits while they were dem onstrating in order to have their situation regularised: inadmissible

Article 14

Discrimination

Foreigner without residence permit arrested during identity check allegedly based on race: inadmissible

In June 1996 a group of non-French nationals, mainly from Africa, who did not have residence permits and so were liable to be deported from French territory, occupied a church in Paris requesting the regularisation of their position. They were joined by re presentatives of human-rights associations. In the morning of 23 August 1996, under a prefectoral order made on the grounds that the occupation constituted a threat to public health, peace, safety and order, the police set up a system of identity checks at the church exit and began clearing it. Persons whose skin colour indicated prima facie that they were foreigners were sent to a detention centre run by the administrative authorities for aliens being deported. The applicant, who was one of the spokesperso ns of the group without identity papers ( sans-papiers ) did not have a residence permit and was arrested. She was sentenced by a criminal court to two months’ imprisonment (suspended) for unlawfully entering and remaining in France. She appealed to the Cour t of Appeal, which upheld the sentence. She appealed on points of law to the Court of Cassation, which held that the applicant’s complaint concerning the unlawfulness of the order for the church to be cleared did not affect the outcome of the criminal proc eedings and dismissed her appeal. Before the European Court, the applicant complained that the deprivation of her liberty had been unlawful since there was no evidence that an offence had been committed. She also alleged that the order to clear the church had been unlawful since the authorities could not take action of their own motion in the absence of any emergency. She submitted that the decisive criterion in the identity check which had led to her arrest had been the skin colour of the persons in the ch urch. She alleged, lastly, that the interference by the State with her right to peaceful assembly was neither in accordance with the law (the order to clear the church being unlawful) nor justified.

Admissible under Article 11: Government’s preliminary obj ection (exhaustion of domestic remedies) – Admittedly, the applicant could have brought proceedings in the administrative court challenging the order terminating the sans-papiers’ “assembly” by authorising the evacuation of the church. However, since the c hurch was cleared the very next day, her application would in all likelihood have been deemed purposeless. Furthermore, it emerged both from the criminal court’s judgment and the Court of Appeal’s judgment that in relying before those courts on the unlawfu lness of the prefectoral order, the applicant had drawn their attention to the violation of her right to freedom of assembly. The preliminary objection was dismissed.

Inadmissible under Article 5 § 1 (c): The reasonableness of the suspicions on which an arrest had to be based constituted an essential element of the protection afforded by Article 5 § 1 against arbitrary deprivations of liberty. Those suspicions had to be founded on evidence which would satisfy an objective observer that the person concerned had committed an offence. The reasonableness of the suspicions had to be assessed on the basis of the circumstances. In the present case the applicant was, on her own admission, the spokesperson for a group of foreigners without residence permits who had been occupying the church precisely for the purpose of requesting the regularisation of their position. The group formed the majority of the persons present on the premises. In deciding to clear the ch urch and arrest the foreigners inside who were, on their own admission, unlawfully resident, the authorities thus based their decision on reasonable suspicions within the meaning of the Article relied on: manifestly ill-founded.

Inadmissible under Article 5(1), taken in conjunction with Article 14: The system of identity checks was designed to monitor anyone suspected of being an illegal resident. It could not therefore be concluded that the applicant had been discriminated against on the basis of her race or colour: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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