Opinion; Subjects: FRANCE, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.19-20662 (E) 091219 101219
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-fifth session, 12–16 August 2019
Opinion No. 50/2019 concerning Mohammed Alashram (France)
1.
The Working Group on Arbitrary Detention was established by the Commission on
Human Rights in its resolution 1991/42. In its resolution 1997/50, the Commission
extended and clarified the mandate of the Working Group. Pursuant to General Assembly
resolution 60/251 and Human Rights Council decision 1/102, the Council assumed the
mandate of the Commission. The Council most recently extended the mandate of the
Working Group for a three-year period in its resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 4 January 2019, the
Working Group transmitted to the Government of France a communication concerning
Mohammed Alashram. The Government has replied to the communication. The State is a
party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
United Nations
A/HRC/WGAD/2019/50
General Assembly
Distr.: General
2 December 2019
English
Original: French
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Submissions
Communication from the source
(a)
Background
4.
Mohammed Alashram is a Palestinian citizen, born on 11 May 1967 in Al-Burayj,
Palestine. Mr. Alashram has no profession.
5.
According to the source, Mr. Alashram arrived in France in 2005 and was granted
refugee status in 2008. Mr. Alashram was then asked to deliver sermons in Arabic in
mosques in the city where he lived.
6.
The source explains that, on 15 January 2015, Mr. Alashram received a notice, dated
9 January 2015, to appear at deportation proceedings initiated by the prefect of Bas-Rhin.
The prefect informed him that he was due to appear on 12 February 2015 before the
Deportation Commission, located at Bas-Rhin police headquarters. Such deportation
proceedings are based on article L521-1 of the Code on the Entry and Stay of Aliens and
the Right of Asylum, which provides that: “Subject to the provisions of articles L521-2,
L521-3 and L521-4, deportation may be ordered if the presence in France of an alien
constitutes a serious threat to public order.”
7.
The source indicates that Mr. Alashram is accused of having made, in sermons given
in several mosques in Strasbourg between 2010 and 2014, “remarks constituting obsessive
anti-Semitic hate speech, which could be perceived as a genuine incitement to hatred and
violence against persons of the Jewish faith”, and also of having “contributed to
radicalizing certain young Muslims by inciting them to armed jihad”. These charges leading
to the deportation procedure are based exclusively on two notes blanches (briefing memos),
documents drafted by the French intelligence services containing information that a person
is said to represent a threat to national security, used to justify the application of
administrative control measures such as compulsory residence orders.
8.
According to the source, on 12 February 2015, Mr. Alashram was heard by the
Deportation Commission. He submitted depositions from presidents and leaders of various
mosques where he has officiated and a petition signed by persons who heard his sermons
that attests to his showing respect for others and the law. The Commission advised against
deportation, as it considered that Mr. Alashram had produced sufficient evidence to contest
the allegations made in the briefing memos. It concluded that “evidence of the
dangerousness of Mr. Alashram for public order has not been established”.
9.
The source then explains that, despite the Commission’s adverse opinion, on 26 May
2015, the prefect of Bas-Rhin issued a prefectural deportation order against Mr. Alashram.
The grounds are a summary of the two briefing memos and are based mainly on the
remarks allegedly made by the person concerned in sermons delivered between 2010 and
2015, and also on the decisive role he is supposed to have played in the radicalization of
several young Muslims.
10.
The source reports that, the following day, the prefect of Deux-Sèvres issued a
compulsory residence order against Mr. Alashram, based on article L523-3 of the Code on
the Entry and Stay of Foreigners and the Right of Asylum. The prefect notes that Mr.
Alashram, having refugee status, is not currently in a position to leave the French territory,
but that, “given the nature and gravity of the acts committed by Mr. [...] Alashram that led
to the deportation order, there is good reason to issue an order requiring him to reside
within a limited radius, far from his usual place of residence, to oblige him to report several
times a day to the gendarmerie services, and to set out core hours during which he must
remain at home”. This compulsory residence order – and any other such measures
subsequently imposed – is to be valid “until it is possible for him to comply with the
deportation order to which he is subject”.
11.
The source explains that this first order compelled Mr. Alashram to reside in the
town of Parthenay. He could not leave this town at any point without first obtaining safe
conduct granted by the prefect. Mr. Alashram had to report to the gendarmerie four times a
day, every day, without exception. The compulsory residence order also required him to
remain in the hotel at which he resided, from 9 p.m. to 7 a.m.
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12.
According to the source, on 27 May 2015, Mr. Alashram was stopped and
questioned in the street and taken to the Strasbourg Central Police Station, where he was
notified of the deportation order and the order requiring him to reside in Parthenay.
Gendarmes took him to his place of restricted residence.
13.
The source further indicates that, on 29 October 2015, the prefect of Deux-Sèvres
issued a new compulsory residence order transferring him from the commune of Parthenay
to that of Sauzé-Vaussais, while maintaining exactly the same restrictions. Mr. Alashram
was transported from one place to another by the gendarmes, as would be the case for each
change of place of restricted residence. Indeed, on 23 September 2016, the prefect of Deux-
Sèvres again modified the place of restricted residence, transferring him to the commune of
Saint-Junien. Lastly, on 16 March 2018, the prefect of Creuse ordered Mr. Alashram to be
required to reside in the commune of La Souterraine, where he currently resides. The
restrictions imposed by the compulsory residence order are the same as those specified in
the previous orders, with the sole exception of the obligation to report to the police station,
which was reduced to once a day, instead of the four times required previously. This
amendment follows a decision of 11 August 2017 issued by the Council of State, to which
the matter was referred for a summary judgment.
14.
The source indicates that, in the meantime, on 23 June 2016, the French Office for
the Protection of Refugees and Stateless Persons decided to withdraw Mr. Alashram’s
refugee status. This decision is based on information provided by the Ministry of the
Interior. Mr. Alashram’s appeal to the National Court on the Right of Asylum is still
pending.
15.
The source explains that the compulsory residence orders are intrinsically linked to
the deportation order, which constitutes the only grounds for them. Thus, the compulsory
residence order may be challenged by lodging an appeal against not only the compulsory
residence order itself but also against the detention order, which, if it were annulled, would
make the compulsory residence order null and void. Mr. Alashram therefore challenged the
deportation order in the administrative court. His application for annulment was dismissed
by the Strasbourg Administrative Court on 19 October 2016, and then by the Nancy
Administrative Court of Appeal on 19 July 2018. An appeal is pending before the Council
of State. Mr. Alashram has also filed several applications (for summary proceedings and for
annulment) against the various compulsory residence orders. All were rejected or ended in
the denial of access to judicial proceedings, with the exception of summary proceedings
that resulted in a partial relaxation of the conditions for compulsory residence by the
Council of State in a decision of 11 August 2017. An application for annulment of the
fourth compulsory residence order is pending before the Limoges Administrative Court.
(b)
Legal analysis
16.
The source submits that Mr. Alashram’s deprivation of liberty is arbitrary under
categories III and IV.
17.
By way of introduction, the source indicates that compulsory residence constitutes a
deprivation of liberty; the source relies in particular on the Working Group’s deliberation
No. 1 on house arrest (1993) and revised deliberation No. 5 on deprivation of liberty of
migrants (2018) to reach this conclusion. In fact, this obligation was in no way freely
undertaken, since, on 27 May 2015, Mr. Alashram was arrested by police officers who took
him to the police station on the pretext that his identity papers appeared to have been forged.
Upon his arrival at the police station, a police officer notified him of the deportation order
and compulsory residence order, and then confiscated his residence permit, leaving him
only with a travel document. On the same day, gendarmes came to pick him up at the police
station to take him to the first place of restricted residence, without allowing him to pick up
any belongings at his home. Subsequently, Mr. Alashram was each time transferred from
one place of restricted residence to another under duress by gendarmes.
18.
In addition, the source indicates that the compulsory residence order to which Mr.
Alashram is subject is characterized by confinement to a place that he is not free to leave
for several hours daily. Indeed, since he was first arrested on 27 May 2015, Mr. Alashram
has been forced to stay in the hotel at which he resides, for 10 hours a night, from 9 p.m. to
7 a.m. He has never been free to choose his accommodation in the successive communes in
which he has been subject to compulsory residence. The hotel rooms in which he has
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resided and still resides today were each time chosen and paid for by the French authorities.
It is therefore not a place of residence, but rather an alternative place of detention.
19.
The source also notes that, in the commune of Sauzé-Vaussais, Mr. Alashram was
forced to stay in a squalid hotel closed to the public that was very poorly insulated and very
cold in winter. The gendarmes often called him in the morning, between 5 a.m. and 8 a.m.
A gendarmerie vehicle followed him as soon as he went out, watched the hotel in the
evening and lit the window of his room with a projector. The source indicates that Mr.
Alashram was subjected to psychological harassment. At the same time, the prefect
withdrew all social assistance, including State health care. He only got back medical
coverage after his fourth transfer, to the commune of La Souterraine, on 16 March 2018. He
developed an eye allergy and a severe toothache that he was unable to have treated for want
of money. He fed himself nothing but bread and tuna for such a long time that he suffers
from digestive problems. He only ate warm and varied meals when friends came to visit
him.
20.
Furthermore, the source explains that Mr. Alashram is forced to remain during the
day within a strictly delimited geographical area. He has been compelled to reside
successively in four small communes.1 Mr. Alashram is strictly prohibited from travelling
beyond this area without the written authorization of the prefect of the place of restricted
residence, who thus grants safe conduct. Such authorization is rarely given. Mr. Alashram
was thus denied permission to attend several hearings in connection with appeals against
the deportation order and compulsory residence order concerning him. He was also not
allowed to leave the commune in which he was subject to compulsory residence to meet his
lawyer. In this respect, Mr. Alashram is subject to the same restrictions as a person facing a
“conventional” form of detention. The source also points out that Mr. Alashram is not given
permission to work.
21.
According to the source, any violation by Mr. Alashram of the conditions governing
the compulsory residence order is liable to criminal prosecution. Mr. Alashram is currently
being prosecuted in a criminal court for violating his compulsory residence order on 1
December 2015, the date on which he went to dinner with people living in a neighbouring
commune and was taken into police custody upon his return. He is liable to a sentence of 3
years’ imprisonment.
(i)
Category III
22.
The source indicates that such deprivation of liberty is arbitrary because it is based
on a deportation order, presented as a preventive measure, but which in fact serves as a
penalty without the principal concerned receiving the guarantees given in criminal
proceedings. In addition, Mr. Alashram’s appeal against the deportation order was not fairly
considered by the administrative court, as the administrative court of appeal placed an
undue burden of proof on Mr. Alashram, thereby breaking with the principle of equality of
arms, and demonstrated a certain bias.
23.
The source indicates that the charges laid against Mr. Alashram, if proved, would
constitute offences liable to criminal prosecution. Deportation proceedings involving
deprivation of liberty by means of a compulsory residence order affords the person
concerned less protection than criminal proceedings, in which he or she would benefit from
the presumption of innocence and the obligation of judges to investigate exonerating
circumstances as well. Thus, the source considers that the authorities knowingly
circumvented the criminal proceedings that should have been initiated in view of the
charges brought, in order to deprive Mr. Alashram of procedural guarantees. Consequently,
according to the source, Mr. Alashram is the victim of the use of administrative control
measures, in the context of the fight against terrorism, instead of criminal proceedings.
24.
Furthermore, the source indicates that Mr. Alashram’s deprivation of liberty is
arbitrary because his appeal against the deportation order was not fairly considered by the
1 On 27 May 2015, he was required to reside in the commune of Parthenay (10,381 inhabitants, 11
km2), on 29 October 2015, in the commune of Sauzé-Vaussais (1,626 inhabitants, 19 km2), on 23
September 2016, in the commune of Saint-Junien (11,156 inhabitants, 56 km2) and, on 16 March
2018, in the commune of La Souterraine (5,315 inhabitants, 37 km2).
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administrative court, as the administrative court of appeal placed an undue burden of proof
on him, thereby breaking with the principle of equality of arms and showing the court’s
bias. The decision to reject the appeal against the deportation order on 19 October 2016 was
thus challenged. The source points out in this context that Mr. Alashram was unable to
attend the hearings of the Administrative Court of Appeal on 30 January and 11 June 2018.
In the first instance, the safe conduct issued was incompatible with public transport
schedules; in the second, the prefect did not reply to the request for safe conduct.
25.
The source further reports that, on 20 February 2018, the Nancy Administrative
Court of Appeal rendered an interlocutory judgment in which it considered that it did not
“[find] in the file sufficiently precise evidence to enable it to assess whether, at the date of
the deportation decision, Mr. Alashram’s presence in France would constitute [...] a serious
threat to public order”. On 19 July 2018, in a surprising reversal of opinion compared with
the reservation expressed in its interlocutory judgment, the Nancy Administrative Court of
Appeal dismissed Mr. Alashram’s appeal on the grounds that the briefing memos contained
“precise, detailed and consistent facts”, even though a third memo provided by the Ministry
of the Interior did not provide any conclusive evidence on the allegations reported in the
first two memos. The absence of a previous criminal conviction of Mr. Alashram and the
Deportation Commission’s adverse opinion were not taken into account by the court.
26.
In the light of these decisions, the source indicates that the reasons for the judgment
reflect the unfairness of the procedure. On the one hand, the Administrative Court of
Appeal violated the fundamental principle of equality of arms by placing an undue burden
of proof on Mr. Alashram. It assumed that the information reported in the briefing memos
was true, whereas these are documents that are not signed, dated or sourced, neither for that
matter are they corroborated by any other source of information, and that constitute the sole
basis for the court’s decision. Conversely, the court required Mr. Alashram to provide
evidence that each of the allegations reported in the three memos were untrue. Despite the
fact that it was impossible for him to travel because of his compulsory residence order, he
was able to collect a great deal of evidence. While he was not able to provide full
transcripts of all the sermons mentioned in the memos, but only quotations of a few lines or
even a few words, he managed, nevertheless, to produce translated transcripts of three of
them. However, the court claims that he was able to make the alleged remarks when
breaking off into digressions in Arabic and thus implicitly establishes that, whatever
evidence he provides, Mr. Alashram will be suspected of lying and concealing information.
The source thus alleges that, in so doing, the court not only violated the principle of
equality of arms but also showed a clear bias, even going beyond the allegations mentioned
in the briefing memos.
27.
Thus, according to the source, the unfairness of the procedure for the review of the
legality of the deportation order makes Mr. Alashram’s deprivation of liberty arbitrary in
another respect. Mr. Alashram’s appeal against his deportation order can be considered as
one of the many remedies he has sought to have the compulsory residence order against
him annulled. If the legality of the compulsory residence order is not meant to be examined
by the administrative court in the context of the proceedings against the deportation order,
any decision taken on the legality of the deportation order necessarily has legal effects on
the compulsory residence order. Therefore, the source considers that the unfairness of the
judicial procedure for the annulment of the deportation order also denotes the lack of a fair
remedy against the compulsory residence order, which leads to the arbitrary nature of the
deprivation of liberty under category IV.
28.
The source also points out that Mr. Alashram’s deportation order and compulsory
residence order are certainly linked to his migrant status, but they are also and above all
part of the Government’s policy to combat terrorism. In this context, the source reports that
the administrative authorities have issued numerous compulsory residence orders not only
to migrants subject to deportation orders or an entry ban to the French territory, but also
French nationals, all of whom are suspected of posing a threat to public order. The climate
of fear in France is such that judges do not dare overturn administrative decisions, even if
they are said to rest on vague and unsubstantiated information. The result is judges who
almost systematically align themselves with the Government’s positions.
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(ii)
Category IV
29.
According to the source, Mr. Alashram’s refugee status was withdrawn on the basis
of the same information from the Ministry of the Interior that led to the deportation order.
However, it is established that Mr. Alashram cannot be deported to Palestine, where he
risks being tortured and sentenced in an unfair trial, if he is not, beforehand, taken in for
questioning by the Israeli authorities. Thus, Mr. Alashram is subject to a deportation order
that cannot and will not be able to be executed unless France finds a third country to receive
him. He can therefore remain subject to the compulsory residence order for the rest of his
life.
30.
The source indicates that Mr. Alashram’s deprivation of liberty is justified solely by
the impossibility of having his deportation carried out because of the risks he faces if he is
returned to Palestine. The compulsory residence order can thus be indefinite. In the case of
Mr. Alashram, under article L561-1 of the Code on the Entry and Stay of Aliens and the
Right of Asylum, the administrative authority is under no obligation to review the merits of
the compulsory residence order until after five years, in order to justify the continuation of
the order.
31.
The source indicates that French law does not impose any obligation on the judicial
authority to regularly review the legality, absence of arbitrariness, necessity and
proportionality of the compulsory residence order. This is because, under French law,
compulsory residence is not considered a measure of deprivation of liberty, and the person
under arrest therefore does not receive the guarantees provided for in article 9 of the
International Covenant on Civil and Political Rights.
32.
With regard to the obligation to allow the person deprived of his or her liberty to
lodge periodic appeals against his or her detention, the source notes that a first appeal to an
administrative court may be brought immediately after the compulsory residence order has
been issued, but under conditions that are not consistent with article 9 of the International
Covenant on Civil and Political Rights.
33.
The source reports that the time taken to review the legality of Mr. Alashram’s
compulsory residence order was unreasonable. According to the source, it appears from all
the proceedings brought by Mr. Alashram, both appeals on the merits and in summary
proceedings, that the court failed to fulfil its obligation to rule without delay on the legality
and proportionality of the compulsory residence order. All the applications for summary
proceedings were rejected by various administrative courts of first instance, in particular
because the judges found that the urgency of the matter had not been established. When, on
11 April 2018, the Council of State implicitly acknowledged the urgency and necessity of a
prompt review of the legality of the compulsory residence measure by quashing the
Limoges Administrative Court ruling to dismiss the appeal and referring the case back to
this court, the Limoges Administrative Court again deprived Mr. Alashram of his right to
an appeal without delay on the grounds that the contested compulsory residence order had
been revoked and replaced by a new order. In these circumstances, the source considers that
it is clear that Mr. Alashram is the victim of a continuing violation of article 9 (4) of the
International Covenant on Civil and Political Rights.
34.
Lastly, the source argues that, despite all the appeals brought by Mr. Alashram
against the various compulsory residence orders, the legality and proportionality of the
orders were, in the end, examined only once, by the Poitiers Administrative Court, on 4
November 2015, after more than three months of proceedings. According to the source, this
demonstrates the lack of regular judicial review of the legality and proportionality of the
deprivation of liberty.
Government reply
35.
On 4 January 2019, the Working Group sent a communication to the Government of
France, giving the Government until 5 March 2019 to reply. The Government replied on 4
March 2019.
36.
The French authorities would first like to clarify the distinction between a
deportation order and a compulsory residence order, which are administrative police
measures that take into account threats to public order. That being the case, they differ from
criminal measures, which aim to prevent offences from being committed. The French
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authorities also point out that briefing memos are accepted as evidence validated by the
Council of State (see Council of State, Minister of the Interior v. Rakhimov, case No.
238662, 3 March 2003).
37.
With regard to guarantees in the context of the deportation proceedings, article
L522-1 of the Code on the Entry and Stay of Aliens and the Right of Asylum provides for
referral to the Deportation Commission as soon as a deportation decision is received. The
Government recalls that the matter had indeed been brought before the Commission and
that its decision is in no way binding, and did not, therefore, prevent the prefect from
issuing a deportation order. In addition, Mr. Alashram had legal remedies against the
deportation decision. The Government indicates that he has only challenged the deportation
order before the Strasbourg Administrative Court and has lodged an appeal, but he has not
applied for an interim ruling on his release, for example. Lastly, the Government asserts
that, contrary to what the source claims, a due hearing of the parties was given in the
proceedings before the Nancy Administrative Court of Appeal. Indeed, the person
concerned submitted two reply briefs and, when he could not be present, he was always
represented by his lawyer.
38.
Concerning the compulsory residence order, the Government points out that it
conformed to the Committee’s general comment No. 20 on the prohibition of torture or
cruel, inhuman or degrading treatment or punishment (1992), which provides that States
parties must not expose individuals to the danger of torture or cruel, inhuman or degrading
treatment or punishment by returning them to their countries. Compulsory residence orders
are indeed a temporary measure that ends as soon as the person concerned can be physically
and legally removed from the national territory on the basis of a deportation order. It is
therefore not indefinite detention, as the source claims. With regard to conditions of
detention, the Government points out that it has no obligation to finance the
accommodation and food of a foreign national subject to a compulsory residence order, but
that it has nevertheless done so. In addition, the person concerned could receive visits from
his friends.
39.
The Government indicates that Mr. Alashram is not deprived of his liberty and
recalls that compulsory residence orders are not a measure of deprivation of liberty, but a
restriction on freedom of movement.
40.
Lastly, the Government indicates that Mr. Alashram has used various judicial
remedies against his compulsory residence order, all of which have been rejected or are still
pending. For the Government, it is therefore difficult for the person concerned to establish
that he has been deprived of legal remedies.
Further information from the source
41.
After receiving a copy of the Government’s reply, the source submitted additional
information on 27 March 2019.
42.
The source reiterates all the allegations made in his communication and considers
that the French authorities do not provide a satisfactory reply.
43.
With regard to the assertion that compulsory residence orders do not constitute a
measure involving deprivation of liberty, the source emphasizes that Mr. Alashram’s house
arrest is not occurring according to the same procedures as the jurisprudence cited by the
French authorities. Indeed, Mr. Alashram is subject to a much more restrictive compulsory
residence requirements with regard to where he must stay and how often he must go to the
police station and the strict ban on leaving the commune in which he has been ordered to
reside.
44.
As to whether the deportation order is an administrative measure rather than a
criminal penalty, the source does not dispute the distinction but notes that the charges laid
against Mr. Alashram may constitute a criminal offence and should therefore have been
reported to the prosecutor. The source considers that the briefing memos, the only evidence
against Mr. Alashram, would certainly not have been sufficient for his criminal conviction
and constitute a violation of the presumption of innocence and the rights of the defence in
court. The source indicates that the authorities therefore knowingly deprived Mr. Alashram
of the opportunity to defend himself by ordering his deportation instead of reporting the
facts to the public prosecutor.
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45.
Concerning the indefinite nature of the compulsory residence order, although the
French authorities dispute this, it is nevertheless confirmed by an opinion of the
Constitutional Council, which refers to compulsory residence orders as “without a
limitation of time”. Mr. Alashram is thus subject to a compulsory residence order “without
a limitation of time” or, in other words, indefinite arrest.
46.
With regard to the assertion that the compulsory residence order is the fault of Mr.
Alashram, the source recalls that this arrest is an arbitrary deprivation of liberty based on an
unjustified deportation order. These measures have not been systematically reviewed by the
courts within a reasonable enough time to verify the legality and proportionality of the
deprivation of liberty. The source indicates that it is not up to Mr. Alashram to end his
compulsory residence order by agreeing to be sent back to Gaza or elsewhere, despite the
risks involved, but to the French administration to put an end to arbitrary detention.
47.
With regard to the lack of prompt and effective remedies available to Mr. Alashram,
the source provides an extract from a decision of the Constitutional Council, whose
reasoning regarding judicial review of other measures violating freedom supports his
allegation. It states that, first, the right to an effective judicial remedy requires that the
administrative court be required to rule on the application for annulment of the measure as
soon as possible. Secondly, by allowing the contested measure to be renewed for more than
six months without a court giving a ruling beforehand, at the request of the person
concerned, on the legality and merits of the renewal decision, the law has struck a clearly
uneven balance between constitutional requirements and the constitutional objective of
preventing the undermining of public order. It is surprising that the French authorities do
not guarantee the same judicial review of compulsory residence orders, which constitute
deprivation of liberty, as that provided for in the event of measures less prejudicial to
fundamental freedoms.
48.
Lastly, with regard to the burden of proof, the source refers to the fact that Mr.
Alashram was subjected to an undue burden of proof by the administrative courts that
reviewed the legality of his deportation order, which constitutes the basis for his
deprivation of liberty. The administrative courts have not taken into account the
considerable evidence demonstrating the misleading nature of the briefing notes.
Disposition
49.
On the basis of the submissions, the Working Group is not in a position to reach a
conclusion in this case. Accordingly, the Working Group decides to close the case without
prejudice to the ability of the source and the Government to submit additional information.
[Adopted on 16 August 2019]