JOINT PARTLY DISSENTING OPINION OF JUDGES SPIELMANN, BERRO-LEFEVRE AND POWER

Unlike the majority, we consider that the applicant did not have an effective remedy in keeping with the requirements of A rticle 13 of the Convention in respect of his complaint under Article 8, and that there was a violation of these two provisions taken together .

The circ um stances of this case are particul ar , as the département of French Guiana is not subject to the same legislation on aliens as other parts of France . In mainland France a foreigner against whom a removal order is issued can appeal to the Pre sident of the a dmini strative court to have it set aside, and that appeal has suspensive effect.

In French Guiana , however, an appeal to the a dmini strative court against a removal order does not have suspensive effect . The interested parties do have the possibilit y of simultaneously lodging an urgent application for a stay of execution , but this urgen t procedure does not automatically suspend the measure .

The present case is a perfect illustration of this: after having lodged an appeal for abuse of authority with the Cayenne A dmini strative Court at 3.11 p.m. on 26 January 2007 , together with an urgent application for a stay of execution of the removal order issued the previous day, the applicant was removed to Brazil a mere 49 minutes later , at 4 p.m. !

That same evening, of course, it only remained for the a dmini strative court to rule that the urgent application for a stay of execution was devoid of purpose as the applicant had already been deported .

Subsequently , in O ctob er 2007, the Cayenne A dmini strative Court found that the removal order had been unlawful because the applicant had shown that he had been habitua ll y resident in France since the ag e of 13 and could therefore not be deported .

This case, which eventually ended well , led the Cour t to verify whether Mr Luan de Souza Ribeiro had had access to an effecti ve remedy before a national authority in respect of the alleged interference with his famil y lif e.

The question raised is whether the effectiv eness of the remedy provided for in Article 13 requires it to have suspensi ve effect when that provision is taken in conjunction with Article 8 of the Convention.

This question has never been decided by the Cour t , whose judgments have focused mainly on the effec tiveness of a remedy in the event of all e gation s of tr e atment falling within the scope of Article 3 of the Convention.

According to the Court ’ s well-established case-law , when the applicant complains of a violation of A rticles 3 and 13 taken together , the level of effectiv eness required of the remedy within the meaning of Article 13 is higher , and requires the remedy to have automatic suspensive effect ( Jabari v . Tur key , no. 40035/98, § 50, ECHR 2000 ‑ VIII, and Gebremedhin [Gaberamadhien] v . France (d e c.), no. 25389/05 , § 66). This is easy to understand considering the importance the Cour t attache s to Article 3 and the irre versible nature of the d a mage likely to be done if the risk of torture or ill- tr eat ment were to materialise .

However , the Cour t went further in the case of ÄŒonka v . Belgi um ( no. 51564/99, ECHR 2002 ‑ I), where, although it found (§ 76) that there was no arguable complaint under Article 3, it nevertheless found (§ 85 ) that there was no effective remedy within the meaning of Article 13 of the Convention taken in conjunction with Article 4 of P rotocol No. 4 . In reaching that conclusion it noted that the applicants had not had access to a suspensi ve remedy in respect of their collective expulsion prior to its implementation . It is clear from the wording of that judgment that what led the Court to find a violation of Article 13 in conjunction with Article 4 of P rotocol No. 4 in that case were the evident procedural shortcomings in Belgian law concerning appeals against removal orders .

In our opinion the circ um stances of the ÄŒonka case are comparable to those of the present case and it is our inclination to confirm the approach taken in that judgment when it comes to protecting fu ndamenta l rights . Mr Luan de Souza Ribeiro lodged an arguable complaint under Article 8 with the administrati ve court, but was deported less than an hour after doing so , without the court having pronounced judgment and therefore without his person al and family situation having been examined .

We therefore believe that the majorit y was mistaken when it drew a distinction in § 44 of the judgment between these cases and the present case regarding the cons e quences of the interference with the applicant ’ s rights .

First of all because in Jabari and Gebremedhin the Cour t examined the situation a priori , in so far as the applicants had not been deported . It was in view of “ the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised ” that the Cour t decided that the applicants should have had a suspensive remedy . In the present cas e, on the other hand, the finding of the majority is based on an a posteriori examination of the situation , as the C hamb er found no violation after noting that the applicant ’ s removal had not, i n pra c ti c e, had any irreversible effect s.

Secondly, because if we accept that a remedy must have suspensi ve effe c t in cases where there is a risk of violation of Article 3, there is no logical or legal reason not to apply the same requirement to Article 8.

It should be borne in mind that sudden, brutal and often radical separation from one ’ s famil y as a result of a removal measure can have a devastating effect on the individual concerned . Detaining, then deporting a person , sometimes far from their family, can cause s uffering , anxi ety and d is tress. Especially if the person has no opportunity to submit arguments to, or be heard by, an appropriate national authority before they are deported .

Lastly , as we have just seen , because this reasoning ignores the ÄŒonka case-law. It is quite clear that the proc e dural rul es applicable in French Guiana to appeals against removal orders did not make it possible to ascertain, prior to its enforcement, whether the removal order against the applicant was compatible with the Convention.

Requiring a suspensi ve remedy in the event of alle gations of violation of Article 8 would not oblige the Contracting State s to issue residence permits to all illegal aliens. It would s impl y mean that when non-nationals (had) lived in a State party to the Convention and founded a family there, they could not be expelled without the national authorities having first carefully examined the merits of their complaint under Article 8.

A t a time when the Cour t is faced with a sharp increase in Rule 39 requests ( interim me a sures ) – and is increasingly being expected to do the job of the domestic courts, albeit reluctantly – the introduction of suspensi ve remedie s could reverse this trend : it would oblige the States to strengthen the guarantees they offer , and to strengthen the role of the domestic courts , thereby reinforcing the subsidiar y nature of the Cour t ’ s role called for in the Interlaken declaration and further emphasised in the Izmir declaration ( section A 3 ).