Ln September 14, 2022, the Grand Chamber of the European Court of Human Rights (ECHR) condemned France for violation of article 3 § 2 of additional protocol n° 4 of the Convention which it ratified on 3 May 1974. The Court had been seized, more than three years ago, by the parents and grandparents of two French women and three children held prisoner in the camps in North-East Syria.
Requests for repatriation had been sent to the Quai d’Orsay and the Elysée, but the French authorities had never deigned to respond. Their silence, constituting an implicit refusal, was disputed before the domestic administrative courts which all, unsurprisingly, declined their jurisdiction: this refusal to repatriate the children and their mothers constituted for them, in application of settled case law, a “act of government” not subject to appeal before the domestic courts.
The European Court was therefore seized by the applicants on the basis of two provisions: Article 3 of the Convention, which prohibits member States from subjecting a person within their jurisdiction to torture or to inhuman or degrading substances, and Article 3 § 2 of Additional Protocol No. 4, which provides that “No one may be deprived of the right to enter the territory of the State of which he is a national”.
There is a sufficient jurisdictional connection
The European Court considered, in order to dismiss the violation based on Article 3, that France did not exercise a “effective control” on the territory of North-East Syria, insofar as these women and children were prisoners in a war zone on a territory self-proclaimed autonomous by the Kurdish authorities, and within which France obviously had no kind of diplomatic representation.
The Court therefore did not consider that these women and children were not subjected to inhuman or degrading treatment, it only declared the applications inadmissible, considering that France did not exercise jurisdiction over these camps. On the other hand, and from the angle of Article 3 § 2, cited above, of Protocol No. 4, it considered that there was a sufficient jurisdictional link between these children and their mothers, on the one hand, and France , on the other hand, in view of the exceptional circumstances of the case.
The Court points in particular to the fact that requests for repatriation “have been formulated on the basis of the fundamental values of the democratic societies which form the Council of Europe, while the life and physical integrity [des femmes et des enfants concernés] were threatened in a real and immediate way both from the point of view of the living conditions and security in the camps, considered incompatible with respect for human dignity”.
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