GRAND CHAMBER
CASE OF H.F. AND OTHERS v. FRANCE
(Applications nos. 24384/19 and 44234/20)
 
JUDGMENT
 
Art 1 • Jurisdiction of States • Refusal to repatriate nationals held with their children in Kurdish-run camps after fall of “Islamic State” • Lack of effective “control” by respondent State over area and applicants’ family members • Repatriation proceedings and criminal investigation for involvement in terrorism abroad insufficient to trigger extraterritorial jurisdictional link • Nationality, albeit a relevant factor, not constituting per se autonomous basis of jurisdiction • Jurisdiction not established in respect of complaint of ill-treatment • Jurisdiction established in respect of alleged breach of right to enter own State in view of special features relating to situation in camps
Art 3 § 2 P4 • Enter own country • Lack of review with safeguards against arbitrariness for refusal to repatriate nationals held with their children in Kurdish-run camps after fall of “Islamic State” • No general right to repatriation (notably for those unable to reach State border as a result of material situation) • Positive procedural obligations in this context triggered in exceptional circumstances (such as extraterritorial factors directly threatening life and physical well-being of child in situation of extreme vulnerability) • Obligation to ensure that decision-making process is surrounded by appropriate safeguards against arbitrariness and is subject to independent review
Art 46 • Individual measures • Prompt examination required of repatriation requests with appropriate safeguards against any arbitrariness

 
STRASBOURG
14 September 2022
 
This judgment is final but it may be subject to editorial revision. TABLE OF CONTENTS

PROCEDURE
THE FACTS
I. BACKGROUND TO THE CASE
A. The conflict in north-eastern Syria
B. Camps of al-Hol and Roj
C. Repatriations by France
D. AANES statement of 18 March 2021 concerning repatriation of 
foreign nationals
II. SITUATION OF THE APPLICANTS’ DAUGHTERS AND GRANDCHILDREN SINCE LEAVING FOR SYRIA
A. Application no. 24384/19
B. Application no. 44234/20
III. PROCEEDINGS BROUGHT TO SEEK REPATRIATION
A. Application no. 24384/19
B. Application no. 44234/20
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. DOMESTIC LAW AND PRACTICE
A. Administrative law
1. Article L. 521-2 of the Administrative Courts Code
2. The acts of State doctrine
(a) Concept of acts of State
(b) Relevant case-law
(c) Private member’s bill for the creation of a right to judicial review of acts of State as regards the protection of 
fundamental rights (no. 2604)
B. Criminal law
1. Criminal court jurisdiction in respect of acts committed abroad
2. Offence of complicity to commit a terrorist act
3. Provisions to be made for minors on their return from areas of terrorist group operations
4. Policy of judicial processing of adults
C. The right to enter and remain in France
D. Consular protection
II. INTERNATIONAL LAW AND MATERIAL
A. Nationality
B. Diplomatic and consular protection
1. Diplomatic protection
(a) Case-law of the International Court of Justice (ICJ)
(b) International Law Commission (ILC) draft Articles on Diplomatic Protection
2. Consular assistance and protection
C. International protection of the right to enter one’s own country
D. United Nations Convention on the Rights of the Child
E. UN Security Council Resolutions
F. UN Key Principles for the Protection, Repatriation, Prosecution, Rehabilitation and Reintegration of Women and Children with Links to United Nations Listed Groups (UN Secretary General, April 2019)
G. Other international law material
H. Relevant provisions of international humanitarian law (IHL)
III. COUNCIL OF EUROPE
A. Preparatory work on Protocol No. 4 and Explanatory Report (ETS no. 46)
B. Material from the Council of Europe Parliamentary Assembly and Committee of Ministers (PACE and CM)
IV. EUROPEAN UNION LAW
A. Consular protection of EU citizens
B. Resolutions of the European Parliament
V. COMPARATIVE LAW AND PRACTICE
THE LAW
I. JOINDER OF THE APPLICATIONS
II. LOCUS STANDI AND WHETHER THE APPLICANTS ARE VICTIMS
III. SCOPE OF THE CASE AND CHARACTERISATION OF THE COMPLAINTS
IV. THE ISSUE OF JURISDICTION UNDER ARTICLE 1 OF THE CONVENTION
A. The parties’ submissions
1. The Government
(a) Whether France exercises extraterritorial jurisdiction in north-eastern Syria
(b) Whether a jurisdictional link stems from the domestic proceedings
(c) Whether other circumstances were capable of establishing France’s jurisdiction
(d) The right to enter the country of one’s nationality
2. The applicants
(a) The bond of nationality
(b) Whether France has extraterritorial jurisdiction in north-eastern Syria
(c) The right to enter the country of one’s nationality
B. Observations of the third-party interveners
1. Belgian, Danish, Netherlands, Norwegian, Spanish, Swedish and United Kingdom Governments
2. Council of Europe Commissioner for Human Rights
3. National Advisory Commission on Human Rights (CNCDH) and Défenseur des droits
4. UN Special Rapporteurs (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Special Rapporteur on extrajudicial, summary or arbitrary executions, and Special Rapporteur on trafficking in persons, particularly women and children)
5. Reprieve
6. Human Rights Centre of Ghent University
C. The Court’s assessment
1. Applicable principles
2. Application to the instant case
(a) Preliminary remarks on the scope of the Court’s assessment
(b) Whether France exercises control over the relevant area
(c) Whether a jurisdictional link is created by the opening of domestic proceedings
(d) Whether there are connecting ties with the respondent State
(e) Conclusion
V. ALLEGED VIOLATION OF ARTICLE 3 § 2 OF PROTOCOL 
No. 4
A. Admissibility
B. Merits
1. The parties’ submissions
(a) The applicants
(b) The Government
2. Observations of the third-party interveners
(a) Intervening Governments
(b) The Commissioner for Human Rights
(c) UN Special Rapporteurs
(d) National Advisory Commission on Human Rights (CNCDH) and Défenseur des droits
(e) Clinique des droits de l’homme
(f) Rights and Security International (RSI)
(g) Reprieve
(h) Avocats sans frontières
(i) Human Rights Centre of Ghent University
3. The Court’s assessment
(a) Interpretation of Article 3 § 2 of Protocol No. 4
(b) Whether there is a right to repatriation
(c) Other obligations stemming from Article 3 § 2 of Protocol 
No. 4 in the context of the present case
(d) Application of those principles to the present case
VI. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION
A. Article 41
1. Damage
2. Costs and expenses
3. Default interest
B. Article 46

Outcome for Article P4-3: violation