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La CEDH condamne la France pour le défaut de rapatriement des enfants français depuis la Syrie
In a long-awaited judgment handed down this morning concerning France's failure to repatriate its nationals, children and mothers, unlawfully detained in camps in north-eastern Syria, the Grand Chamber of the European Court of Human Rights condemned the French State under Article 3§2 of Protocol No. 4 to the Convention, which provides that "no one shall be deprived of the right to enter the territory of the State of which he is a national".
In this landmark judgment resolving the sensitive legal issue of France's extraterritorial jurisdiction, the Court clarified that the nationals unlawfully detained in Syria did not fall within France's jurisdiction in relation to the torture claim under Article 3 of the Convention, but that there were "exceptional circumstances capable of establishing a jurisdictional link between the French State and them" in relation to the prohibition on depriving a person of the right to enter the territory of the State of which he or she is a national.
The Court considers that these "exceptional circumstances" are characterised in particular by the endangerment of the physical integrity and life of the nationals held in the camps, and in particular that of the children.
In such a situation, the Court specifies that the State is obliged to guarantee the effective exercise of the right to enter its territory by ensuring the "existence of appropriate safeguards against the risk of arbitrariness" and an "appropriate individual examination [of repatriation requests] by an independent body responsible for reviewing their legality".
Consequently, the Court enjoins France to resume the examination of the applicants' applications as soon as possible, while providing appropriate guarantees against arbitrariness.
While the Court thus refuses to enshrine a general right to repatriation, it specifies the conditions for the examination of applications, which must (i) be individualised, (ii) be carried out by an independent body, (iii) present sufficient guarantees against arbitrariness, and (iv) take into account the best interests of the child in the case of applications concerning minors.
Avocats Sans Frontières France, which intervened voluntarily in the present proceedings before the Grand Chamber and carried out three missions to Iraqi Kurdistan and North-Eastern Syria in 2020 and 2021, will remain very attentive to the execution of this groundbreaking judgment and the re-examination of the applicants' applications.
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