TrustHLT/LaCour huggingface dataset:
AP3 (Applicant): Elles sont injustifiées, injustes, imprévisibles, inappropriées au regard aux exigences de justice et de prééminence du droit puisque les victimes sont laissées face à un vide juridique.
AP3 (Applicant): Les requérants estiment à juste titre que leurs filles et leurs petits-enfants sont privées du fait de l'inaction des autorités françaises de leur droit d'entrée sur le territoire national.
AP3 (Applicant): Monsieur le Président, Mesdames et Messieurs les juges de la Cour, la France a en vertu de son obligation positive l'impérieux devoir de recourir aux nécessaires moyens en vue de garantir et de protéger leurs droits au retour.
AP3 (Applicant): Le rapatriement est l'unique solution.
AP3 (Applicant): La circonstance que plusieurs rapatriements ont d'ores et déjà été opérés démontre indubitablement que le rapatriement ne constitue en aucun cas un fardeau insupportable et excessif, comme le soutiennent encore aujourd'hui devant votre Cour les autorités françaises.
AP3 (Applicant): L'inconsistance de la position juridique, soutenue avec force depuis l'origine par les autorités françaises, la violation des dispositions de la Convention et de ses protocoles additionnels doivent irrémédiablement vous conduire à déclarer les requêtes recevables, à condamner la France et à accorder la juste satisfaction et l'équitable.
AP3 (Applicant): Il en va de la vie des mères et de leurs enfants, aujourd'hui trop longtemps retenus dans les camps et séparés de leurs proches et du respect de l'État de droit.
Robert Spano (JudgeP): Merci beaucoup, Maître Pettiti.
Robert Spano (JudgeP): I now turn to the third-party intervenors in the case.
Robert Spano (JudgeP): The floor is for Commissioner Mijatović.
Robert Spano (JudgeP): Please, you have the floor, Madam.
TP3 (ThirdParty): Mr. President, distinguished members of the Court,
TP3 (ThirdParty): I have decided to intervene in these cases because they concern an urgent situation, demanding urgent action.
TP3 (ThirdParty): The situation faced by nationals of Council of Europe member states detained in the camps in northeast Syria is continuously deteriorating.
TP3 (ThirdParty): From both a humanitarian and a security point of view, and it involves many small children.
TP3 (ThirdParty): Furthermore, it has an important implications for the protection of the rights of victims of terrorism and the prevention of terrorism.
TP3 (ThirdParty): My office has been working on the return of suspected European ISIS fighters for several years.
TP3 (ThirdParty): Their voluntary return and in some instances their expulsion to their home countries have raised a wide range of issues for the member states concerned.
TP3 (ThirdParty): These include identifying and locating these returnees, as they are often called, bringing them to justice where appropriate, identifying, assisting, and protecting those who may have been victims of trafficking, and providing adequate medical, social, and psychological support to their children.
TP3 (ThirdParty): With the territorial defeat of ISIS and the detention of large numbers of Council of Europe citizens, mostly women and children, in camps in northeast Syria, new challenges have emerged.
TP3 (ThirdParty): For several years now, and still at this very moment, women and children are literally dying in these camps.
TP3 (ThirdParty): Or their lives are threatened by the appalling conditions and the violence prevailing therein.
TP3 (ThirdParty): This has been widely documented, including in the written submissions of the parties and the third parties to these cases.
TP3 (ThirdParty): Against this background, two main questions arise.
TP3 (ThirdParty): Do state parties have a duty under the Convention and international human rights law to address the situation of their nationals detained in these camps?
TP3 (ThirdParty): And if so, what are they required to do?
TP3 (ThirdParty): Relying on the many discussions and consultations I held, not only with human rights interlocutors, but also with counterterrorism and security experts, and with representatives of victims of terrorism, I have reached the following conclusions.
TP3 (ThirdParty): The first question, do state parties have a duty, should be answered positively.
TP3 (ThirdParty): Since the state parties' nationals detained in these camps fall within their state of nationalities jurisdiction.
TP3 (ThirdParty): Therefore, the state parties concerned have a positive obligation to protect the rights of their nationals.
TP3 (ThirdParty): As for the second question, what are they required to do?
TP3 (ThirdParty): In the present situation, their repatriation is, in my opinion, the only way forward.
TP3 (ThirdParty): Now, I should like to briefly address the issue of jurisdiction.
TP3 (ThirdParty): In this regard, much of the discussion focused on the interpretation of this court's decision in the case of Amman and others versus Belgium in the light of the present circumstances.
TP3 (ThirdParty): According to that decision, jurisdiction presupposes existence of a link with the respondent state and the exercise by the state of authority or control over persons located in its territory and from whom it is responsible.
TP3 (ThirdParty): Clearly, the European nationals detained in Northeast Syria have a much closer link with the state parties to which they are applying for repatriation than the applicants in the case of Amman and others versus Belgium.
TP3 (ThirdParty): They are nationals, which forms are uncontested, a robust link to for personal jurisdiction.
TP3 (ThirdParty): The UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism and the UN special rapporteur on arbitrary summary and extrajudicial executions have stressed that UN soft law instruments confirm the responsibility of the states of nationality towards their nationals.
TP3 (ThirdParty): In particular, one of the UN key principles for the protection, repatriation, prosecution, rehabilitation, and reintegration of women and children with links to United Nations listed terrorist groups sets out the state's primary responsibility for their own nationals.
TP3 (ThirdParty): It adds that states should ensure their citizens suspected of having committed crimes on the territory of another member state are treated in accordance with international law, including international human rights law, international humanitarian law, and international refugee law.
TP3 (ThirdParty): Furthermore, in its admissibility decisions of 30th of September 2020 and 4th February 2021 concerning two communications lodged by the relatives of French children detained in the camps of northeast Syria, the Committee on the Rights of the Child found that states have the positive obligation to protect the human rights of child nationals in the Syrian camps, despite the fact that these camps are under the control of a non-state armed group.
TP3 (ThirdParty): Finally, it is important to note that state parties, nationals who are willing to be repatriated remain stranded in these camps, despite the agreement to repatriation given by the autonomous administration of north and east Syria and the proven ability of a number of state parties to organize such operations.
TP3 (ThirdParty): These circumstances suggest that a main factor determining the fate of these European citizens is the state party's refusal to repatriate them, and therefore that they exercise decisive influence on the situation of these persons.
TP3 (ThirdParty): While this may not constitute effective control within the meaning of this court's case law, it falls, in my view, within the authority of control referred to by this court in the decision of Hemen and others versus Belgium.
TP3 (ThirdParty): Therefore, I consider that the European citizens detained in the camps of north east Syria fall within the jurisdiction of the state parties in which there are nationals.
TP3 (ThirdParty): I would also like to share with the court my views on the scope of the state's responsibilities towards their nationals detained in these camps.
TP3 (ThirdParty): It is not disputed that there is a proven risk of serious harm to physical and psychological integrity of persons disdained in the camps of north east Syria.
TP3 (ThirdParty): It has been argued that the treatment that the detained women are exposed to is the result of their own choice.
TP3 (ThirdParty): Such assertions prompt several remarks.
TP3 (ThirdParty): Firstly, the entire convention is based on the idea that certain treatments cannot be justified under any circumstance and that state parties have the collective duty to eradicate it.
TP3 (ThirdParty): Therefore, they get what they deserve cannot be an acceptable answer to treatment that is incompatible with the convention, even when inflicted outside of the territory of the state parties, especially when the state concern has the capability to act to put an end to a violation.
TP3 (ThirdParty): Secondly, most of the women are detained with their children, who should not be forced to bear the consequences of their mother's choices.
TP3 (ThirdParty): Thirdly, these women and children may have been victims of coercion and trafficking, and states have an international obligation to identify, assist, and protect victims, including extraterritorially, as the UN special reporter on trafficking in persons, especially women and children, has stressed.
TP3 (ThirdParty): The conditions of detention in the camps in northeast Syria raise serious questions about their compliance with Article 3 of the convention prohibiting torture and inhuman and degrading treatment or punishment.
TP3 (ThirdParty): This court has judged on many instances that state parties have a positive obligation to take measures to prevent persons under their jurisdiction from being subjected to treatment contrary to Article 3.
TP3 (ThirdParty): In the present situation, it is not disputed that state parties are aware of the nature and gravity of the risks to which their nationals are exposed, an accumulation of unbearable heat in summer, cold in winter, insufficient food, limited access to water and sanitation, lack of hygiene, anxiety generated by lengthy detention without prospect of judgment or release, physical and psychological violence.
TP3 (ThirdParty): In addition, several of them, including France, have demonstrated that they are able to organize the repatriation of their nationals in cooperation with the Syrian Democratic Forces.
TP3 (ThirdParty): In this context, and considering the fact that the situation is deteriorating rapidly, repatriating their nationals is, in my view, the only way of fulfilling the state party's positive obligation under Article 3 of the convention.
TP3 (ThirdParty): Repatriation also seems to me to be the only possible way to protect the rights enshrined in the UN Convention on the Rights of the Child.
TP3 (ThirdParty): According to experts, life on the ground, including experience of war and bombings, as well as the violence between children and from adults towards children in the context of the camps, forms a continuum of violence.
TP3 (ThirdParty): It is urgent to stop this continuum now since the chances of trauma recovery diminish with the length of exposure.
TP3 (ThirdParty): In view of the situation in the camps, I do not believe that a case-by-case approach before repatriation can be justified, nor would it be feasible.
TP3 (ThirdParty): No one can claim that certain children are not at risk or are not going through this continuum of violence.
TP3 (ThirdParty): I consider that repatriation at the earliest opportunity of all children who are nationals of state parties to the convention is the only measure that can put an end to the ongoing violation of their most fundamental rights.
TP3 (ThirdParty): Their repatriation, along with their mothers, is necessary to safeguard their best interests and prevent their re-traumatization through separation from the primary caregiver.
TP3 (ThirdParty): Once on the ground, relevant experts will be able to properly assess and take steps in each individual case in the best interests of the child and in interests of justice.
TP3 (ThirdParty): Finally, I should like to underline that the protection of the rights of victims of terrorism and the prevention of terrorism may be hindered by the refusal to repatriate European nationals.
TP3 (ThirdParty): Women detained in the northeast Syrian camps are not being prosecuted by the autonomous administration of north and east Syria.
TP3 (ThirdParty): As for criminal investigations initiated in their home countries, these cannot be conclusive either without them being present.
TP3 (ThirdParty): It is therefore also in the interest of the victims of terrorism to see the possible perpetrators of terrorist acts being returned and properly tried to get access to trials and demand reparation.
TP3 (ThirdParty): In addition, many reports from national and international counterterrorism bodies show that the terrorist and security risk resulting from the detention of foreign nationals in the camps and prisons in northeast Syria or Iraq is greater than the risk that might arise from their repatriation.
TP3 (ThirdParty): States have a duty under international law to bring terrorists to justice and to prevent terrorism.
TP3 (ThirdParty): Repatriation is necessary to fulfill this duty as well.
TP3 (ThirdParty): There is no doubt that repatriating their nationals detained in the northeast Syrian camps is a very delicate and sensitive challenge for the state parties concerned.
TP3 (ThirdParty): But to conclude, let me stress that there are not left helpless.
TP3 (ThirdParty): They can count on the experience of counterparts having already repatriated their nationals, the assistance of other states, and the guidance and expertise provided by international organizations, especially the United Nations.
TP3 (ThirdParty): A French prosecutor dealing with the returned and repatriated children recently stated, these are our kids.
TP3 (ThirdParty): They didn't ask for anything.
TP3 (ThirdParty): It is normal that we take care of them and that their parents are held accountable.
TP3 (ThirdParty): Since the first returns in 2016, the system has worked.
TP3 (ThirdParty): These children had no interest in going to school, in having friends.
TP3 (ThirdParty): We can already see that they are returning to a normal life.
TP3 (ThirdParty): It is the state party's duty to give all the children stranded in the camps a chance to return to a normal life.
TP3 (ThirdParty): I hope my comments will be helpful to the court.
TP3 (ThirdParty): And I thank you for your attention.
Robert Spano (JudgeP): Thank you very much indeed, Commissioner Mijatović.
Robert Spano (JudgeP): I now turn to the joint representatives of the third-party intervening governments.
Robert Spano (JudgeP): Mr. James Eadie QC, you have the floor.
TP2 (ThirdParty): Mr. President, members of the court, my submissions will deal with the issues relating to jurisdiction
TP2 (ThirdParty): on behalf of the intervening government. I start with nationality. The government's
TP2 (ThirdParty): submission is that nationality provides no basis for concluding that a person is within the jurisdiction of the contracting state. Three key points we submit are to be noted.
TP2 (ThirdParty): First, to treat nationality as doing so would be fundamentally inconsistent with the basis on which the Convention's jurisdictional reach was conceived and framed. It would have
TP2 (ThirdParty): been easy and obvious, had that been the intention, to cast Article 1 to make clear that contracting states were obliged to secure Convention rights to their nationals wherever they may be. The
TP2 (ThirdParty): wording of Article 1 within the jurisdiction is inconsistent with such an intention and there is nothing whatever in the travo to support it. Quite the reverse.
TP2 (ThirdParty): Second, instead, this court has repeatedly recognised, from Bankovic to Emman and Belgium, that the concept of a person being within the jurisdiction is primarily territorial.
TP2 (ThirdParty): The principled presumption is that the state exercises authority and control necessary to secure the rights and freedoms guaranteed under the Convention to everyone within a state's territory. They do so irrespective of nationality, indeed subject to a specific
TP2 (ThirdParty): obligation not unjustifiably to discriminate on grounds of nationality. The limited exceptions
TP2 (ThirdParty): to, or extensions of, that primarily territorial conception of jurisdiction are exceptional, again the court's word, and are founded on precisely the same basis of authority and control enabling the securing of the Convention right or freedom in question.
TP2 (ThirdParty): Nationality provides no such basis. A state cannot, for example, secure that the conditions
TP2 (ThirdParty): in a camp or a prison in a foreign sovereign state conform to the requirements of Article 3 or that the authorities in such a state do not subject the national of another state to Article 3 ill-treatment. And there are powerful reasons for limiting within the jurisdiction
TP2 (ThirdParty): to situations of control and authority because that control and authority is the bedrock on which the obligation to secure sits. A state cannot secure its nationals against
TP2 (ThirdParty): ill-treatment in a foreign state because basic principles of international law limit the exercise of enforcement jurisdiction by a state outside its own territory.
TP2 (ThirdParty): Third, the implications of this sort of extension would be as serious as they are inimical to the Framers' intention. Every national anywhere in the world is suddenly within the jurisdiction
TP2 (ThirdParty): of the state, with the consequent obligation to secure at least some of the rights and freedoms for them. It does so in circumstances in which the ability to secure the relevant
TP2 (ThirdParty): substantive rights is, or may very well be, simply absent.
TP2 (ThirdParty): So our submission is that nationality provides no basis for concluding that a person is within the jurisdiction of the state whilst abroad. The key feature which links all of the recognised
TP2 (ThirdParty): jurisdictional categories is the fact that a contracting state has, by its own positive action, asserted the requisite degree of authority and control over persons, or indeed over a whole area, outside its territory. And that feature is wholly absent in the context of
TP2 (ThirdParty): the present applications.
TP2 (ThirdParty): Sending article 3 of protocol 4 to my Dutch colleague, the applicants have identified four other features which they say bring their relatives within the jurisdiction of France.
TP2 (ThirdParty): We submit that none of those features comes close to bringing these cases within the exceptional categories carefully developed by this court. I'll take them in turn, but the opening point
TP2 (ThirdParty): is that if, as we submit, nationality does not in principle provide a basis for a person being within the jurisdiction, it cannot coherently re-enter the arena to provide the support for such a basis, in combination with other things.
TP2 (ThirdParty): As to the four specific features relied upon, first, there is no plausible basis whatever for suggesting that France is in effective or any other form of control over an area in Syria.
TP2 (ThirdParty): Second, the fact that the applicants brought interlocutory proceedings before the domestic French courts, seeking an order directing repatriation of their daughter and grandchildren, could only create a jurisdictional link for procedural rights, such as in respect of article 6 or the procedural limb of articles 2 or 3. But as MN and Belgium clearly demonstrate,
TP2 (ThirdParty): there is a clear and critical distinction between, on the one hand, jurisdictional links sufficient for some procedural convention guarantees, such as arose, for example, in the Markovits case, and on the other hand, the jurisdictional links sufficient for other substantive convention rights, including, critically for present purposes, the substantive guarantees in article 3. The former link does not support the latter link, and nor should
TP2 (ThirdParty): it. A form of jurisdiction in relation to substantive rights could, if that were the
TP2 (ThirdParty): case, then simply be generated by making a referral to the domestic courts.
TP2 (ThirdParty): Third, in relation to French criminal investigations, no doubt the fact of nationality may provide, in domestic law, a necessary link between the national and his or her state before certain action is taken by that state. That may render a person subject to proceedings by the state
TP2 (ThirdParty): and a person subject to such proceedings may well be within the jurisdiction, just like everyone else so subject, if the proceedings do not conform to convention standards. However,
TP2 (ThirdParty): that fact does not lead, cannot lead to, or support, a more general conclusion that nationality brings a person within the jurisdiction for all purposes, or specifically for the purposes of preventing article 3 ill-treatment by a foreign state. There is no link whatsoever
TP2 (ThirdParty): between those criminal proceedings initiated by France, which concern terrorist-related offences, and the article 3 complaint made by the applicants. Even if some jurisdictional
TP2 (ThirdParty): link was established, which it is not, again it would only be, and could only be, in respect of procedural convention rights. Finally, the fact that France had, for humanitarian
TP2 (ThirdParty): reasons, arranged for the repatriation of a number of French orphan children has no bearing on whether the applicant's relatives fall within the jurisdiction of France. The
TP2 (ThirdParty): court has never, in its case law, concluded that a state has jurisdiction merely by virtue of its capacity to act. An extension of the concept of effective control or authority
TP2 (ThirdParty): to cover capacity to act would be a radical departure from the court's well-established case law and would give rise to serious legal uncertainty for states, given the inherent difficulty in defining such a concept. Mettel-Dauzé says that the decision not to provide consular
TP2 (ThirdParty): assistance provides the requisite authority and control, and so brings the subject of that decision within the jurisdiction of the state. That is, we submit, untenable. It confuses
TP2 (ThirdParty): the concept of jurisdiction with arguments about the substantive content of the right.
TP2 (ThirdParty): It goes beyond the rejected notion—rejected in cases from Bankovic onwards—of effects and it is directly contrary to the core MN and Belgian conclusion of this court that a decision being made domestically having effects outside the jurisdiction is not in itself sufficient to create the requisite jurisdictional link. So on that basis, we
TP2 (ThirdParty): adopt all of the submissions made by Monsieur Allabrun on this issue, and on behalf of all the intervening governments, I invite the court not to take the very considerable jurisdictional step that the applicants and the Commissioner invite you to take.
Robert Spano (JudgeP): Thank you very much, Sir Eadie.
Robert Spano (JudgeP): I now move to Miss Koopman.
TP1 (ThirdParty): the governments of the intervening states would like to thank the court for the opportunity for this oral intervention.
TP1 (ThirdParty): The key question is the matter of jurisdiction.
TP1 (ThirdParty): This is a matter certainly of general importance that goes beyond the particular facts of this case.
TP1 (ThirdParty): Also, in most intervening states, national legal procedures are pending with respect to similar factual circumstances.
TP1 (ThirdParty): The governments wish to emphasize the importance of the matters at hand in this case.
TP1 (ThirdParty): Should the court establish jurisdiction, this will have far-reaching implications for the contracting states.
TP1 (ThirdParty): In our view, to do so would not only deviate from well-established case law concerning jurisdiction.
TP1 (ThirdParty): It would significantly extend the obligations of contracting states contrary to the purpose and nature of the convention.