IV. Protection against Return to Risk of Torture
The countries to which France forcibly removes terrorism suspects generally have in common draconian counterterrorism legislation, inadequate fair trial provisions, and poor records on torture. Human Rights Watch is aware of returns from France to Morocco, Tu nisia, and Turkey, but the vast majority of those removed from France on national security grounds are returned to Algeria. The history of threats and actual attacks attributed to Algerian networks in France, the large presence of Algerian nationals residing in France and the specialif troubledrelationship between the two countries as a result of their shared colonial history explain this predominance. Despite considerable improvement in the overall security situation in Algeria, ample evidence exists to suggest that terrorism suspects are at particular risk of torture and ill-treatment there. In an April 2006 report, Unrestrained Powers, Amnesty International documented dozens of reports of torture and cruel, inhuman or degrading treatment or punishment (ill-treatment) of people held by Algerias Department for Information and Security (Departement du Renseignement et de la Securite, DRS) on suspicion of involvement in terrorist activity.91 The DRS, a military intelligence unit considered responsible for systematic and widespread torture, extrajudicial executions, and forced disappearances throughout the 1990s, is now by all accounts specialized in gathering counterterrorism intelligence. There is evidence, based on dozens of cases of torture and ill-treatment collected by Amnesty International between 2002 and 2006, to suggest that the DRS routinely arrests and holds terrorism suspects in incommunicado detention in secret locations, with no access to a lawyer and no right to communicate with their families, where they are at particular risk of being subjected to torture and ill-treatment. According to Amnesty International, the most commonly reported forms of torture include beatings, electric shocks, and the chiffon, where the victim is tied down and forced to swallow large quantities of dirty water, urine or chemicals through a cloth placed in their mouth.92 An amnesty law adopted in 2006 ratified impunity for abuses committed by Algerian security forces, including the DRS.93 The United States has not returned any of the Algerian nationals currently detained at Guantanamo Bay at least in some cases because of concerns about risk of torture. In these cases, the US government appears to be seeking third-country solutions. For example, Fethi Boucetta, an Algerian national, was released from Guantanamo on November 17, 2006, and sent to Albania. Insufficient Procedural GuaranteesFrench authorities have a clear obligation under international and national law to conduct a thorough review before removal to ensure an individual does not face a risk of being tortured or ill-treated upon return. While at first glance the various types of appeals available to individuals subjected to removal would appear to satisfy the requirement for adequate safeguards, in practice this is not the case. The lack of an automatically suspensive appeal against expulsion, and misuse of the expedited procedure, create a situation in which individuals facing deportation do not have access to an effective remedy. International law prohibits the return, deportation, or extradition of a person when there is a risk of torture or ill-treatment. Article 3 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stipulates,
Article 3 of the European Convention on Human Rights states that No person shall be subjected to torture or to inhuman or degrading treatment or punishment.95 The European Court of Human Rights (ECtHR) has consistently and repeatedly held that the prohibition extends to placing people at real risk of torture or inhuman treatment and that the prohibition against refoulement is a clear element of the general and absolute prohibition on torture. In its 1989 decision in Soering v. the United Kingdom, the court firmly established its interpretation of article 3 as prohibiting refoulement:
The absolute protection against refoulement applies to all people at all times regardless of the nature of the alleged or proven crimes or threats to national security. The court articulated the current European standard in the landmark 1996 case Chahal v. the United Kingdom:
French national law also explicitly prohibits refoulement. The Immigration Code states that [a] foreigner may not be deported to a country if it is established that his life or his liberty are threatened or that he is exposed to treatment contrary to the stipulations of article 3 of the European Convention on Human Rights and Fundamental Freedoms.98 The key test under the nonrefoulement obligation is whether appropriate procedures and safeguards are in place to allow for a full, good-faith review of the risk of torture and prohibited ill-treatment upon return. At issue is whether there exists a risk of torture, not a certainty of torture. A state may be found in violation of article 3 even if a returnee was not subjected to torture or ill-treatment, if authorities knew or should have known there was a reasonable chance the person might be tortured upon return. Lack of automatically suspensive appeal
We have noted above that French law does not provide for an automatic suspension of an expulsion order or a country designation order upon appeal. Rather, the individual must file one or both interim relief appeals that are designed to allow a judge to suspend execution of the expulsion order while the administrative court considers the appeal on the merits. Until the judge has ruled, the government is free to expel even in cases where the individual alleges a risk of torture upon return. In the case of Nacer Hamani, discussed in detail below, the government did indeed attempt to expel someone by ferry to Algeria after he had filed a petition for protection of fundamental liberties on the grounds that he was at risk of being tortured or subjected to ill-treatment. A mobilized opposition by local migrants rights groups and the protest of the port workers union held up the boats departure long enough for the interim relief judge to suspend the expulsion. Human Rights Watch heard from several sources that administrative judges view petitions grounded in concerns of torture with considerable suspicion. Lucille Hugon, head of asylum issues at the anti-torture organization Action by Christians Against Torture (Action des chretiens pour labolition de la torture, ACAT-France), said lawyers tend to avoid torture complaints because administrative courts are very reticent about article 3 of the ECHR.100 Two judges with the Paris Administrative Court confirmed this view. 101 The administrative judge has a problem assessing risk theres very little knowledge about the situation in certain countries the judge is going to seek refuge in the OFPRA [Office for Refugees] and CRR [Appeals Board] decisions, according to Judge Stephane Julinet.102 Petitions based on the right to family, discussed later in this report, are better known and easier for the judge, he said.103 As noted in Chapter III, above, while asylum claims filed with the Office for Refugees do have suspensive effect, appeals against negative rulings by it are not suspensive in cases involving threats to national security, and individuals may be deported while the Appeals Board is reviewing this appeal. Human Rights Watch understands the general principle in French administrative law that appeals against administrative acts should not be suspensive, applying the logic that a single individual should not be empowered to block administrative orders taken in the public interest.104 We believe, however, that the multilayered system of appeals to suspend forced removals does not provide sufficient safeguards against what could be irreparable harm, and falls short of Frances obligation to provide an effective remedy against forced removal where there is a risk of torture. The right to an effective remedy is a fundamental human right as well as a basic principle of law. This right, guaranteed in article 13 of the ECHR, requires states to create appropriate mechanisms for individuals to seek correction and redress when they have an arguable claim that one of their rights has been violated. The European Court of Human Rights assesses cases involving immigration and asylum issues through the prism of the right to an effective remedy,105 and takes the view that this right imposes an obligation on states to provide for adversarial proceedings with sufficient procedural safeguards before an independent and impartial body.106 The ECtHR attaches particular importance to the need for effective remedies, and specifically for suspensive appeals, in cases where individuals may face a risk of torture upon deportation because the proper administration of justice requires that no irreparable action be taken while proceedings are pending.107 In the case of Conka v. Belgium, for example, the court found that Belgium had violated article 13 of the Convention because national law allowed authorities to carry out an expulsion while an appeal was pending. The court held,
The Court reaffirmed the importance of a suspensive appeal in its April 2007 decision in the case of Affaire Gebremedhin v. France. Asebeha Gebremedhin was an Eritrean asylum seeker who was held in the international waiting zone at Charles de Gualle airport outside Paris upon his arrival on June 29, 2005. On July 5, OFPRA rejected his request to enter officially French territory in order to seek asylum, and the Interior Ministry denied him admission to France and ordered him returned to Eritrea or a third country the following day. The Court found that France had violated article 13 in conjunction with article 3 because none of the appeals at Gebremedhins disposal against these decisions had suspensive effect. The Court noted that filing interim relief petitions before the administrative court is not suspensive, and agreed with the plaintiff Gebremedhin that a practice of suspending expulsion until a decision has been made on these petitions cannot substitute for a fundamental procedural guarantee of a suspensive appeal.109 In the Courts view, [A]rticle 13 requires that the concerned party have access to a remedy with automatic suspensive effect.110 The UN Committee Against Torture (CAT), which monitors compliance with the Convention against Torture and adjudicates individual complaints against member states, has insisted that the remedy against refoulement requires an opportunity for effective, independent, and impartial review of the decision to expel or remove.111 In a 2005 decision, the committee found that France had violated its treaty obligation under the Convention against Torture when it deported Mahfoud Brada to Algeria in September 2002 at a time when his appeal to the Bordeaux Administrative Appeals Court was still pending.112 The CAT had requested a stay in the execution of the expulsion order in December 2001 and renewed that request in September 2002, shortly before Bradas expulsion. Bradawho as an airforce pilot had been detained and tortured for three months in military brigs in Algeria after refusing to bomb civilian areaswent missing for a year-and-a-half upon his expulsion to Algeria. He later claimed he had been held in different locations by the Algerian secret service and severely tortured. In its ruling, the committee stressed that French authorities were, or should have been, aware that Bradas pending appeal contained additional arguments against his expulsion that still required judicial review at the time he was expelled,113 and concluded that
The committee protested Frances failure to respect its request for interim protection, saying this rendered action by the CAT futile and its comments worthless.115 It found France in violation of its obligations under article 22 of the Convention accepting the CATs competence and establishing the system of review of individual complaints.116 According to the French government, this was the first time it had not heeded the committees requests for a stay in removal.117 It would not be the last. In August 2006, French authorities expelled Tunisian Adel Tebourski to Tunisia despite the committees request for a stay in execution of his expulsion order (see below for a full discussion of his case). On May 11, as this report was being finalized, the CAT concluded that France had violated article 3 of the Convention against Torture in Tebourskis case. In its comments to the committee in the Brada case, the French government argued that in its view the committee does not have the authority to take steps binding on member states, and insofar as France had cooperated with requests for interim protection in the past, it had done so in good faith, and not in fulfillment of what should be considered a legal obligation.118 In this and other cases, the CAT has stressed that ratification of the Convention and acceptance of CAT competence to review individual complaints under article 22 imposes an obligation to cooperate fully with the committee.119 Case studiesNacer HamaniNacer Hamani, age 41, moved to France from Algeria when he was 13 years old. He married in 1989 and is father to three children. In 1999 he was sentenced at last instance to eight years in prison, and issued with a permanent criminal deportation order, for membership in a terrorist group providing support to the GIA. On October 2, 2001four days before Hamani was due to be released from prison after serving his sentencethe local prefect issued an order designating Algeria as the country of return. On October 6 Hamani was taken from prison to the Saint-Exupery detention center in Lyon pending his deportation. His lawyer filed a petition for protection of fundamental liberties with the Lyon Administrative Court on October 8, alleging that Hamanis deportation would place him at risk of torture or ill-treatment. On the afternoon of the following day, October 9, 2001, Nacer Hamani was taken under tight security to the Marseille port and put on a boat almost mockingly named Liberte. Port personnel became suspicious when a large convoy of vehicles bypassed the typically stringent security checks. Investigations by port staff, and protests by local activists from CIMADE, a migrants rights organization that had spearheaded the movement against the double peine, delayed the boats departure. The Liberte was still at port when news arrived that the interim relief judge had that afternoon suspended the expulsion until a full hearing could be held on October 12. Hamani was quoted in a newspaper at the time: I was in the cell on the boat. When they opened [the door], I thought I was in Algeria, I was saying my prayers But, it was the same police officers.120 At the full hearing three days later, the interim relief judge confirmed the suspension until the court could rule on the merits. The judge took the view that Hamani faced a risk of torture because of his prior conviction and noted membership in the GIA. Several French human rights organ izations, including CIMADE, the Human Rights League, and Divercite, a grassroots organization in the low-income suburbs of Lyon, submitted supporting documents. The French government immediately appealed the decision, and the Council of State convened an emergency session on Sunday, October 14, 2001, at which all parties were present. The following day, the Council of State ruled that considering that Mr. Hamani has lived in France since he was thirteen [and] does not allege that he has engaged in any political or militant activity in Algeria or in connection with Algeria it does not follow that he would be exposed to the kind of risks mentioned in article 3 of the European Convention on Human Rights.121 A representative of CIMADE commented, They consider him an Islamist when it comes to convicting him And they say he isnt an Islamist when it comes to expelling him.122 Hamanis family and friends gathered at the port to see him put aboard on that same boat, the Liberte, on the afternoon of October 16 after they learned he had been taken from the detention center where he had been held pending deportation. They eventually learned he had been flown to Algiers earlier in the day. Upon arrival, Hamani was held in a secret location for 11 days. His lawyer said that he told her he did not want to have any more contact with her and asked her to desist all legal action on his behalf. Human Rights Watch was unsuccessful in its efforts to contact him. Adel TebourskiAdel Tebourski was born in Tunisia in 1963. He moved first to Belgium in 1985 and then later to France, where he married a French citizen in 1995, with whom he had a son in 1996; he became a French citizen himself in 2000. In November 2001 Tebourski was arrested in connection with the assassination of Ahmad Shah Massoud on September 9, 2001, in Afghanistan.123 He was accused of providing logistical support for the two men who carried out the assassination (and died along with their victim). In May 2005 he was convicted of association de malfaiteurs and sentenced to six years in prison. Tebourski was scheduled to be released from prison in Nantes on July 22, 2006. According to Tebourski, he was looking forward to spending time with his son and to finishing a book he was writing. But on July 21, the eve of his release, everything changed when he was officially stripped of his French citizenship. The following day, July 22, the Ministry of the Interior issued an expulsion order citing absolute urgency and a decision designating Tunisia as the country of return.124 Instead of walking free, Tebourski was taken from his prison cell to a detention center pending deportation. Tebourski applied for asylum on July 21, the day he learned he had been stripped of his French citizenship. Two nongovernmental organizations, CIMADE and ACAT-France, petitioned the UN Committee Against Torture on Tebourskis behalf for an injunction against the expulsion. In a letter dated July 27 the CAT informed the two organizations that the committee had asked France to provide information on the case and to refrain from expelling Tebourski until the committee had examined the case on its merits. Other organizations such as the French section of Amnesty International, FIDH, and the Human Rights League submitted documents to substantiate the risk of persecution, including torture, faced by Tebourski were he to be returned. The Office for Refugees rejected Tebourskis asylum claim on July 28, saying he did not have a well-founded fear of being persecuted in Tunisia, since he had left there long ago, did not appear to have engaged in significant activities against the Tunisian authorities, and had not proved that he would be at risk of being persecuted for activities committed outside that country. Tebourski was notified of the decision on August 1; the same day, he was taken to the Tunisian consulate to receive a laissez-passer. His lawyer submitted an appeal to the Refugee Appeals Commission, but (as noted in Chapter III, above) such an appeal is not suspensive in cases involving national security. On August 7 Tebourski was taken by force onto an airplane bound for Tunis. Accompanied by three French gendarmes, he was hand-cuffed and shackled, and strapped into his seat with velcro belts around his chest and thighs until the flight was well underway.125 Upon arrival in Tunis he was not detained or questioned. On October 17, 2006, two months after Tebourski was deported to Tunisia, the Refugee Appeals Board acknowledged that Tebourski had had a well-founded fear of being persecuted within the meaning of the Refugee Convention, given that his behavior taken as a whole is of a nature to lead the Tunisian authorities to consider it a manifestation of political opposition and that he had had a legitimate fear of being tried under Tunisian counterterrorism legislation for the same acts that had led to his conviction in France. The Appeals Board concluded that the fact that he has remained free but placed under ostentatious police surveillance, without being arrested, must be viewed as expressing the wish of the Tunisian authorities to conceal their real intentions.126 The Appeals Boards decision rejected Tebourskis asylum claim under article 1F(c) of the Refugee Convention, which excludes from protection any person established to be involved in acts contrary to the aims and principles of the United Nations, including terrorism. This decision, though it denies Tebourski refugee status, would have nevertheless required the French authorities to refrain from deporting him to Tunisia because of the absolute prohibition on returning someone to a country where that person faces a risk of torture. Had it been reached while Tebourski was still in France, the French government would have had to either rescind the expulsion order or not execute it until a safe third country willing to accept him could be identified. Misuse of Expedited ProcedureAs explained in Chapter III, above, the interior minister can expedite administrative expulsions by citing absolute urgency and in doing so bypass consultation with an Expulsion Commission. The expedited procedure was created to respond to situations in which the perceived urgency to expel means there is no time to convene the commission. The commission must notify all participants 15 days ahead of a hearing. The jurisprudence of the Council of State on the use of absolute urgency puts the onus on the government to prove the existence of such urgency, and requires the administrative judge to take into account, inter alia, the amount of time between when the Ministry of Interior learned of alleged acts giving rise to the expulsion order and the date of the expulsion order itself.127 Council of State jurisprudence has also established that imminent release from prison of a foreigner whose dangerousness is manifest justifies recourse to absolute urgency.128 Several cases reviewed by Human Rights Watch raise concerns that reliance on the expedited measure is more a matter of expediency than of genuine need. Samir Korchi, a 32-year-old Moroccan who moved to France with his family in the 1980s, was sentenced in December 2004 to four years in prison for participation in a criminal association in relation with a terrorist enterprise. He did not receive a criminal deportation order, but six weeks before his expected release from prison, on February 28, 2005, the Paris prefecture issued a prefectoral expulsion order and the expulsion commission was set to examine Korchis case on April 19, 2005. However, on April 12, just two days before Korchi was to be released from prison, the interior minister issued his own ministerial expulsion order citing absolute urgency and overwhelming necessity to protect public and state security. Korchi was released from prison on April 14 but immediately taken into administrative custody and placed in a detention center pending deportation. He was expelled to Casablanca, Morocco, the following day. Chellali Benchellali, a 62-year-old Algerian imam living in Venissieux at the time, was taken into police custody on January 6, 2004, on suspicion of involvement in a criminal association with a view to perpetrating a terrorism offense. On January 8, while Benchellali was still in police custody, the Interior Ministry issued an urgent expulsion order. Benchellali was remanded into pretrial detention on January 12 and was eventually convicted and sentenced to two years in prison on June 14, 2006 (six months plus 18 months suspended). He was expelled on September 7, 2006. In this case, the government argued that Benchellalis imminent release from police custodysince at the time of the administrative expulsion order there was no guarantee Benchellali would be remanded into pretrial detentionjustified the urgent measure. Nonetheless, the intelligence reports substantiating the governments case are dated July 2003 and November 2003, at a minimum 44 days and a maximum of five months before the ministerial expulsion order was issued. Benchellalis lawyer argued in his brief that the inertia of the administration during this period inevitably demonstrates the absence of absolute urgency 129 Benchellalis case is discussed in detail below (Chapter V). Abdullah Cam, a 43-year-old Turkish citizen living in France since 1986, was arrested on September 6, 2005, outside his home in a suburb of Lyon as he was taking his young child to school. He was expelled the following day. The Interior Ministry had issued an expulsion order on August 26, 2005, but the local prefect took action only two weeks later.130 The intelligence report, dated July 1, 2005, summarizing the governments case against Cam lists numerous counts against him, the majority of which date back to the mid-1990s. The most recent actattendance at a clandestine meeting of Kaplanites131 in Germanydated from June 18, 2005, almost two-and-a-half months before the expulsion order was issued. In this case, which is discussed in greater detail in Chapter V, the expulsion was so swift Cams lawyer was able to file appeals only the day after his client had been deported. Returns to AlgeriaThe staff researcher for Human Rights Watch was unable to obtain a visa to Algeria to carry out research in the context of preparing this report.132 Instead, a Human Rights Watch consultant conducted interviews in Algeria in November 2006 with 12 Algerian nationals deported from France. The interviews confirmed that terrorism suspects returned to Algeria are likely to be detained by the Department for Information and Security (DRS). Out of the 12 interviewees, eight had been detained upon return to Algeria for periods ranging from four to 12 days.133 Of these, five were detained by the DRS, but only one could identify the place in which he had been kept (the Ben Aknoun military barracks). A sixth man said he had been detained by the judicial police in the Chateauneuf military barracks. Because the DRS is empowered by Algerian law to exercise judicial police functions, it is possible that he too was in DRS hands. The remaining two deportees were detained in the Algiers central police station. With the exception of Abdelkader Bouziane, an imam expelled by ministerial order, all of those interviewed had been subject to criminal deportations following convictions for membership in or association with a terrorism network. They had served prison terms in France ranging from one to six years.134 While none of these men reported suffering ill-treatment upon return, they endured days and nights of uncertainty, and in some cases, constant interrogations. Mahdi E., 46, an Algerian national who was born in France and had lived there his entire life, was put aboard a boat to Algiers on February 25, 2005. Upon arrival, Mahdi was taken to an unknown place by the DRS, interrogated, and held for 10 days.135 His wife Nejla says that she developed an ulcer from the emotional stress of this period: When he was expelled, I went to look at websites and saw what happened to people in Algeria, and I was very frightened.136 Driss Saiad, 41, was held for 18 days in a detention center pending deportation before he was flown to Algiers on March 26, 2006. Upon arrival he was detained in the Ben Aknoun military barracks for 12 days, during which time his wife and children (two with his current wife and two from a previous marriage) had no information about his whereabouts.137 Hazim S., 42, was detained and flown to Algiers on December 11, 2002. Hazim was detained upon arrival. The Algerian police took me to an unknown place where I spent eight days without anyone, not my lawyer nor my wife nor my parents in Algeria, knowing where I was. On December 18, 2002, around 7 p.m., I was released and left on a highway near my [parents] home.138 Khelif Zoubir, 52, was deported to Algiers by boat on June 28, 2006. He told Human Rights Watch that he was held for four days in Algeria by the judicial police in the Chateauneuf military barracks.139 Abdelkader Bouziane, 54, was flown to Algeria on April 21, 2004. At the airport in Algiers he was put in a van and driven to an unknown location where he was held for interrogation for seven days. During that time his family had no idea of his whereabouts and he was prohibited from using the telephone.140 Mohamed Touam, 50, was expelled in October 2001. He was detained in the central police station in Algiers for eight days. I was interrogated day and night, he told Human Rights Watch.141 Touam says that he suffers from hypertension as a result of the experience. I was in isolation the whole time. They would interrogate me say until 9 in the evening and then theyd come and get me up at 2 or 3 oclock to question me some more. Theyd say, Lets see what we need to do to make you talk, Touam said.142 Several reported abusive treatment by French officers at the moment of arrest or during the journey. Hazim S. was detained in front of his sons pre-school and taken into custody pending deportation:
Mahdi E. was taken from his prison cell at 5 a.m., put in a straightjacket and driven to Marseille, where he was thrown in a cell on a boat heading for Algiers.144 90 Human Rights Watch interview with Jacques Debray, lawyer, Lyon, June 22, 20 06. 91 Amnesty International, Unrestrained Powers: Torture by Algerias Military Security, AI Index: MDE 28/004/2006, July 10, 2006, http://web.amnesty.org/library/Index/ENGMDE280042006 (accessed September 1, 2006). 92 Ibid., p. 16. 93 For a discussion of the amnesty, see Algeria: New Amnesty Law Will Ensure Atrocities Go Unpunished, Human Rights Watch news release, March 1, 2006, http://hrw.org/english/docs/2006/03/01/algeri12743.htm. 94 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. Res. 39/46, annex, 39 UN GAOR Supp. (No. 51) at 197, UN Doc A/39/51 (1984), entered into force June 26, 1987. 95 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by Protocols 3, 5, 8 and 11 which entered into force on September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998, respectively. 96 Soering v. the United Kingdom, Judgment of July 7, 1989, Series A no. 161, available at www.echr.coe.int, para. 88. 97 Chahal v. the United Kingdom, Judgment of November 15, 1996, Reports of Judgments and Decisions 1996-V, available at www.echr.coe.int, para. 79-80. The Committee Against Torture, the UN body tasked with monitoring implementation of the Convention against Torture, has stated that [t]he nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention. UN Committee against Torture Decision: Tapia Paez v. Sweden, CAT/C/18/D/39/1996, April 28, 1997, http://www1.umn.edu/humanrts/cat/decisions/39-1996.html (accessed November 20, 2006), para. 14.5. 98 CESEDA, art. L. 513-2. 99 Human Rights Watch interview with Dilek D.(pseudonym), Villeurbanne, France, June 23, 2006. 100 Human Rights Watch interview with Lucille Hugon, head of asylum issues, ACAT-France, Paris, October 5, 2006. 101 Human Rights Watch interview with Stephane Julinet, administrative judge, Paris December 6, 2006. Judge Julinet spoke in his capacity as representative of the Syndicat de la Juridiction Administrative (SJA), a union of administrative judges. Separate Human Rights Watch interview with administrative judge who spoke on condition of anonymity, Paris, December 6, 2006. 102 Human Rights Watch interview with Stephane Julinet, administrative judge, Paris December 6, 2006. 103 Ibid. 104 It is interesting to note that an exception already exists: appeals against removal orders for irregular immigrants (APRFs) are automatically suspensive. Experts in administrative law explained to Human Rights Watch that this right was firmly established in the early 1990s after a series of contradictory reforms moved APRFs back and forth from the administrative to the criminal jurisdiction several times. The accepted principle now is that irregular immigrants are not inherently a threat to public order and should therefore benefit from greater protection. Human Rights Watch interview with Emmanuelle Prada-Bordenav, government commissioner, Council of State, Paris, December 6, 2006; Human Rights Watch interview with Stephane Julinet, administrative judge, Paris, December 6, 2006. 105 The ECtHR has determined that as the majority of immigration or asylum cases do not involve the determination of disputes involving civil rights and obligations nor are they criminal cases, that the right to a fair trial guaranteed under article 6 of the Convention cannot be invoked. See Maaouia v. France [GC], no. 39652/98, ECHR 2000-X, available at www.echr.coe.int, paras. 35-40. 106 See Al-Nashif v. Bulgaria , no. 50963/99, 20 June, 2002, available at www.echr.coe.int, paras. 123, 133. 107 Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99), ECHR 2005-I, available at www.echr.coe.int, para. 124. 108 Conka v. Belgium, no. 51564/99, ECHR 2002-I, available at www.echr.coe.int, paras. 82-83 109 Affaire Gebremedhin v. France, no.25389/05, available at www.echr.coe.int, paras. 65-66. 110 Ibid., para. 66. 111 UN Committee Against Torture, Decision: Agiza v. Sweden, CAT/C/34/D/233/2003, May 20, 2005, http://www1.umn.edu/humanrts/cat/decisions/233-2003.html (accessed January 1, 2007), para. 13.7. 112 UN Committee Against Torture, Decision: Brada v. France, CAT/C/34/D/195/2002, May 24 ,2005, http://www1.umn.edu/humanrts/cat/decisions/195-2002.html (accessed November 22, 2006). Brada had been sentenced in 1998 to eight years in prison and a ten-year ban from French territory. 113 Ibid., para. 13.3. 114 Ibid., para. 7.8 115 Ibid., para. 6.1 116 Ibid., para. 13.4. 117 Ibid., para. 8.2 118 Ibid. 119 UN Committee Against Torture, Decision: Agiza v. Sweden, para. 13.10. 120 Charlotte Rotman and Michel Henry, The Case of Mr. Hamani (Le cas de Monsieur Hamani), Liberation (Paris), October 12, 2001. 121 Council of State decision, 15 October, 2001, Minister of the Interior v. Hamani, Nos. 238943 and 239022. 122 Michel Samson, Council of State authorizes Islamist Nacer Hamanis expulsion to Algeria (Le Conseil dEtat autorise lexpulsion vers lAlgerie de lislamiste Nacer Hamani), Le Monde, October 16, 2001. 123 Massoud was a military leader who fought against the Soviet occupation of Afghanistan, and later became the leader of the United Islamic Front for the Salvation of Afghanistan fighting against the Taliban. 124 French law allows for nationalized citizens to be stripped of their French citizenship if they have been convicted of a crime against the fundamental interests of the nation or of an act of terrorism. Nationality can only be stripped if the individual will not be left stateless (in Tebourskis case, he had retained his Tunisian citizenship) and if the criminal acts were committed before French nationality was acquired or within the first 15 years after acquisition. Civil Code, art. 25. The Bureau for Naturalizations in the Ministry of Employment, Social Cohesion and Housing had notified Tebourski of the intention to strip him of his French citizenship in a letter dated June 15, 2006. On file with Human Rights Watch. 125 Human Rights Watch interview with Adel Tebourski, Tunis, October 31, 2006. 126 Decision of the Refugee Appeals Commission, dated October 17, 2006. On file with Human Rights Watch. 127 See, for example, Council of State decision, 1 April 1998, Ministry of the Interior v. Kisa, No. 163901. 128 Council of State decision, 16 October 1998, Minister of the Interior v. Antate, No. 171333. 129 Memoire Appel du Jugement rendu le 7 juillet 2005 par la 1ere Chambre du Tribunal Administratif de Lyon (Dossier No. 0401903-1), filed by Berenger Tourne on behalf of Chellali Benchellali before the Administrative Court of Appeals of Lyon, September 7, 2005. 130 The local prefect is tasked with taking the necessary steps to effect the physical removal, including in most cases issuing the country designation order. 131 Kaplanites are followers of Metin Kaplan, the leader of the Caliphate State that allegedly seeks to overthrow the Turkish government and establish an Islamic state in that country. The organization, based in Germany, was banned by the German government in 2001. 132 Several attempts to apply for a visa at the Algerian consulates in Rome and Milan were rejected for procedural reasons. The Algerian consulate in Milan accepted the application in late October 2006. As of March 2007, no decision had been made on the visa request despite repeated phone calls and personal visits to the consulate. 133 The other four were questioned for periods of time ranging from 30 minutes to several hours and then released. 134 Some received sentences for three or four years, but two or three years were suspended so the effective prison term was only one year. 135 Human Rights Watch interview with Mahdi E. (pseudonym), Algiers, November 17, 2006. 136 Human Rights Watch interview with Nejla E. (pseudonym), Vaulx-en-Velin, France, December 7, 2006. 137 Human Rights Watch interview with Driss Saiad, Algiers, November 14, 2006. 138 Human Rights Watch interview with Hazim S. (pseudonym), Algiers, November 14, 2006. 139 Human Rights Watch interview with Khelif Zoubir, Algiers, November 14, 2006. 140 Human Rights Watch interview with Abdelkader Bouziane, Oran, Algeria, November 16, 2006. 141 Human Rights Watch interview with Mohamed Touam, Algiers, November 15, 2006. 142 Human Rights Watch telephone interview with Mohamed Touam, December 21, 2006. 143 Human Rights Watch interview with Hazim S., Algiers, November 14, 2006. 144 Human Rights Watch interview with Mahdi E., November 17, 2006. |