Information Note on the Court’s case-law 198

July 2016

A.M. v. France - 56324/13

Judgment 12.7.2016 [Section V]

Article 5

Article 5-4

Review of lawfulness of detention

Unduly limited scope of review of administrative court ruling on an appeal against administrative detention order: violation

Facts – In March 2011 the applicant, a Tunisian national, was served with an order for his deportation to Tunisia. By a judgment of March 2011 an administrative court confirmed the lawfulness of that order, but the order was never enforced. On 7 October 2011 the applicant was rearrested and held in a detention centre pending enforcement of the deportation order of March 2011.

However, the applicant contested the lawfulness of the detention order before the administrative court. The hearing was fixed for 11 October 2011, but on that morning he was deported to Tunisia and so was unable to attend the hearing. Despite this, the administrative court dismissed his application the same day. In March 2012 the Administrative Appeal Court reversed the administrative court’s decision. In March 2013, however, the Conseil d’État set aside the judgment of the Administrative Appeal Court and, ruling on the merits, dismissed the applicant’s application to the administrative court.

The applicant submitted to the European Court that, in breach of Article 5 § 4 of the Convention, he had been deprived of any effective access to a judge to verify the lawfulness of his detention. He had been deported to Tunisia before the referral to the pre-sentencing judge and before the administrative court could determine the lawfulness of his detention. The applicant also complained of a lack of impartiality in the scrutiny carried out by the administrative court, as it had no power to review the circumstances of his arrest.

Law – Article 5 § 4: The applicant’s detention began with his arrest on 7 October 2011 and ended within his deportation on 11 October 2011. The applicant had used the only remedy available to him in applying to the administrative court.

As regards the suspensive effect of that remedy, the Court had never required the remedies provided for in Article 5 § 4 to include a suspensive effect vis-à-vis detention measures for the purposes mentioned in Article 5 § 1 (f). Moreover, inasmuch as the alien remained in detention pending the decision of the administrative court, such a requirement would, paradoxically, lead to prolonging the very situation which he or she was seeking to end by challenging the administrative detention. It could also delay the execution of a final decision on deportation, the lawfulness of which might already have been verified, as in the present case.

As regards the administrative court’s supervision of the applicant’s detention, that period of custody had lasted from the time of his arrest by the security forces through his placement in administrative detention until the date of his deportation. However, administrative courts examining an appeal against an administrative detention order could only verify the competence of the authority which issued the order, its reasons for making the order and the necessity of the administrative detention. They had no jurisdiction to review the lawfulness of measures preceding and leading to the administrative detention. In particular, they could not verify the conditions surrounding the alien’s arrest. They could not verify whether the circumstances of the arrest leading to the administrative detention complied with domestic law and with the purpose of Article 5, which was to protect individuals against arbitrary treatment. Such supervision was therefore insufficient in the light of the requirements of Article 5 § 4 for the purposes of detention under Article 5 § 1 (f).

Accordingly, the applicant had not benefited from a remedy for the purposes of Article 5 § 4 of the Convention.

Conclusion : violation (six votes to one).

Article 41: no claim made in respect of damage.

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

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