Our ECHR lawyers in Strasbourg bring several dozen cases a year before the European Court of Human Rights.

Some of the admissibility decisions of the European Court of Human Rights in which our lawyers have been involved are reproduced opposite, to illustrate how the ECHR drafts the statement of case which it then sends to the respondent government.

The ECHR’s statement of facts is a public, non-confidential document, most of which is published on the European Court of Human Rights website.

Only the decisions of the European Court of Human Rights in French are posted here for reasons of linguistic consistency.

These decisions are also anonymised, unlike the ECHR website, which publishes them without anonymisation.

You will find statements of facts relating to the :

  • right to respect for private life (article 8 of the European Convention on Human Rights);
  • right to respect for private life (article 8 of the European Convention on Human Rights)
  • right to protection of personal data (article 8 of the European Convention on Human Rights)

Statement of facts: private life

FIRST SECTION Application No 1785/08 lodged by A* F* V** F** against Switzerland on 4 January 2008

Represented by Maître Christophe MEYER – Avocat

STATEMENT OF FACTS

THE FACTS

The applicant, Mr A* F* V** F**, is a Peruvian national born in 1965 who, before leaving Switzerland, resided in Geneva. He is represented before the ECHR by Mr Christophe Meyer, a lawyer in Strasbourg.

A. The circumstances of the case

On 21 June 1992, the applicant married a Swiss national, M.H. He was then granted a residence permit, which was regularly renewed. In 1995, he was prosecuted for rape and sexual coercion. On 1 September 1995, the Public Prosecutor of the Canton of Geneva dismissed the case for lack of sufficient evidence. By order dated 24 November 1995, the Indictments Division of the Canton of Geneva confirmed the decision to close the case. On 21 March 1999, the Court of First Instance of the Canton of Geneva granted the applicant’s divorce from M.H. By judgment of 5 July 2000, the Criminal Court of Rolle sentenced the applicant to twenty months‘ imprisonment and ten years’ deportation for sexual acts committed on a person incapable of resistance and abuse of distress. However, the deportation was suspended for five years. On appeal by the public prosecutor’s office, the criminal court of cassation of the canton of Vaud reduced the prison sentence to three years, confirming the judgment for the remainder. On an unspecified date, the applicant was imprisoned to serve his sentence.
By order of 28 October 2002, the Department of Justice, Police and Security of the Canton of Geneva ordered the applicant’s deportation for an indefinite period. The applicant appealed to the cantonal appeals commission of the Aliens Police (hereinafter: the appeals commission). Investigation of the appeal was suspended. The applicant was granted conditional release on 1 December 2002. On 5 April 2003, the applicant married A.V.K., a Swiss and German citizen with dual nationality. However, A.V.K. remained in Germany to complete her education, while the applicant remained in Geneva. The claimant and his wife lived together in Geneva from the beginning of 2005. The applicant unsuccessfully applied to the Office cantonal de la population for a residence permit. Faced with the administration’s refusal, the claimant again appealed to the Appeals Commission. The latter joined his appeal with the one he had previously lodged and dismissed it by decision of 19 May 2005. The claimant then appealed to the Federal Supreme Court. His appeal was upheld by a ruling dated 9 January 2006. The Federal Court ruled that the agreement of 21 June 1999 between the Swiss Confederation and the European Community on the free movement of persons was the only agreement applicable in this case, and that the case should be referred back to the appeals committee to determine whether the refusal of a residence permit and the expulsion were compatible with the aforementioned international agreement. The applicant was again the subject of criminal proceedings in December 2006 for sexual coercion. By decision of 7 February 2007, the Public Prosecutor of the canton of Geneva dismissed the proceedings for lack of sufficient evidence. By decision of 14 February 2007, the Appeals Commission again rejected the two appeals lodged by the applicant against his deportation and against the refusal to grant him a residence permit. The applicant appealed to the Federal Supreme Court, which dismissed his case by judgment of 25 June 2007. The court held that: ‘By his behaviour in December 2006, the applicant removed any doubts that might have existed as to his awareness of the seriousness of the acts he had committed in the past and the effectiveness of the psychiatric treatment he received, already in detention and until the end of the four-year probation period set at the time of his conditional release, i.e. until the end of December 2006. The sentence of three years’ imprisonment for sexual acts on a person incapable of discernment had already followed criminal proceedings for rape and sexual coercion, which were dismissed for lack of sufficient evidence in 1995. The fact that the complaint of 16 December 2006 for sexual coercion was also dismissed on 7 February 2007 does not lead to the conclusion that the appellant does not pose a threat to public order. (…) Moreover, contrary to what he maintained before the Federal Court, it is irrelevant for the purposes of establishing the existence of a risk of re-offending that the new criminal complaint was dismissed, since the personal conduct of the person concerned may also create the conditions for a current threat (…)’.
The applicant alleges that the lawyer representing him received the Federal Court’s judgment on 8 July 2007. The applicant left Switzerland on 8 February 2008.

B. Relevant international and domestic law

  1. Annex I to the Agreement of 21 June 1999 between the Swiss Confederation and the European Community on the free movement of persons
    Article 3 – Family members
    ‘ 1. The family members of a person who is a national of a Contracting Party and has the right of residence shall have the right to settle with that person. The employed person must have accommodation for his family which is considered normal for employed national workers in the region where he is employed, without this provision leading to discrimination between national workers and workers from the other contracting party.
  2. The following are considered as members of the family, regardless of their nationality
    a. his spouse and their descendants under 21 years of age or dependent ;
    (…) ‘
    Article 5 – Public policy
    ‘ 1. The rights granted by the provisions of this Agreement may be restricted only by measures justified on grounds of public policy, public security or public health.
    (…) ‘
  3. Federal law on the residence and establishment of foreign nationals of 26 March 1931
    Article 10
    ‘ 1. Foreign nationals may only be expelled from Switzerland or a canton on the following grounds:
    a. If they have been convicted by a judicial authority of a felony or misdemeanour;
    b. if their conduct, taken as a whole, and their actions lead to the conclusion that they are unwilling or unable to adapt to the established order in the country offering them hospitality
    (…)
  4. The present law in no way affects the expulsion, provided for in the Constitution, of foreign nationals who jeopardise the internal or external security of Switzerland, nor the expulsion ordered by a criminal court’.
  5. Swiss Criminal Code of 21 December 1937
    Article 55 – Expulsion (repealed on 1st January 2007)
    ‘ 1. The judge may expel from Swiss territory, for a period of three to fifteen years, any foreigner sentenced to rigorous imprisonment or imprisonment. In the event of a repeat offence, expulsion may be ordered for life.
  6. The competent authority will decide whether, and under what conditions, the deportation of a conditionally released offender should be deferred on a trial basis.
  7. If the conditionally released offender has behaved well up to the end of the probation period, the deferred expulsion will no longer be enforced. Where deportation has not been deferred, its duration will run from the day on which the conditionally released offender leaves Switzerland.
    (…) ‘
    Article 189 – Sexual coercion
    ‘(1) Anyone who, in particular by using threats or violence against a person, by exerting psychological pressure on them or by putting them in no position to resist, forces them to undergo an act similar to a sexual act or another act of a sexual nature, shall be punished by a custodial sentence of up to ten years or a fine.
    (…) ‘
    Article 191 – Sexual act committed on a person incapable of discernment or resistance
    ‘Anyone who, knowing that a person is incapable of discernment or resistance, takes advantage of this to commit a sexual act, a similar act or any other act of a sexual nature, shall be punished by a custodial sentence of up to ten years or a fine.
    Article 193 – Abuse of distress
    ‘(1) Anyone who, taking advantage of the victim’s distress or a relationship of dependence based on an employment relationship or a relationship of dependence of any other nature, induces the victim to commit or undergo a sexual act shall be punished by a custodial sentence of up to three years or a fine.
    (…) ‘

GRIEVANCES

Invoking Articles 1, 6 § 2, 7 and 8 of the European Convention on Human Rights, the applicant claimed that the refusal to grant him a residence permit and the decision to deport him infringed his right to respect for his private and family life and violated the presumption of innocence.

QUESTION TO THE PARTIES

Has there been a breach of the applicant’s right to respect for his private and family life within the meaning of Article 8 of the European Convention on Human Rights?

Statement of facts: family life

FIFTH SECTION Application No 2260/10 lodged by D* TM against France on 29 December 2009

Represented by Maître Christophe MEYER – Avocat

STATEMENT OF FACTS

THE FACTS

The applicant, Mr D* T-M, is a Congolese national born in 1970 and resident in Lodève. He is represented before the European Court of Human Rights by Mr Christophe Meyer, lawyer in Strasbourg.

The circumstances of the case

The applicant was recognised as a refugee of Congolese nationality under the mandate of the United Nations High Commissioner for Refugees in Cameroon. The refugee certificate issued to him on 23 December 2002 stated that it was valid until 31 December 2004. It also stated that the applicant was accompanied by his wife, who held a refugee certificate, and his children (X, born on 28 December 1994 in Bukavu in the Democratic Republic of Congo, and Y, born on 4 June 2001 in Cameroon). The couple’s third child, Z, was born on 3 September 2004 in Yaoundé. The claimant did not see him born because he left Cameroon to apply for asylum in France.
He entered France in February 2004 and was granted refugee status by a decision of the Refugee Appeals Commission (CRR) on 8 February 2007.
On 30 April 2007, OFPRA issued him with a birth certificate, a marriage certificate and a family record book in lieu of civil status documents. At the same time, the Hérault prefecture issued him with a ten-year residence permit.

In a letter dated 20 June 2007, the applicant applied for long-stay visas for his wife and three children under the family reunification scheme. In a letter dated 28 June 2007, the Ministry of Foreign Affairs informed the applicant that it was going to contact OFPRA to check the family composition before referring the matter to the French consular services in Yaoundé with a view to having the members of his family apply for long-stay visas. He specified that if the civil status documents had to be authenticated, the processing of the visa application could take longer.

In a letter dated 13 February 2008, the visa department of the Ministry of Immigration, Integration, National Identity and Co-Development informed the applicant that his family would soon be summoned to the Yaoundé consulate.
The applicant’s wife was summoned to the consulate on 21 February 2008. After providing the documents required to compile the file, the consular authorities asked her to contact the UNHCR/Cameroon delegation to obtain travel documents for herself and her children in accordance with the Convention of 28 July 1951. She was assured that when she brought the children back to the consulate, she would be issued with a receipt for the visa application. On 18 March 2008, the claimant’s wife submitted her four travel documents for herself and her children to the consulate but did not receive a receipt confirming that she had submitted her application.
Informed of this situation, the claimant contacted various authorities to obtain information about this application for a long-stay visa, to no avail.
On 30 May 2008, the applicant lodged an appeal against the implied refusal by the consular authorities with the Commission de recours contre les décisions de refus de visa d’entrée en France.
On 11 June 2008, the applicant lodged a suspension application with the Conseil d’Etat against this implied refusal. On the same day, the applicant lodged an application with the Conseil d’Etat for excess of power against the said decision.
In an order dated 23 June 2008, the interim relief judge of the Conseil d’Etat dismissed the application for interim suspension on the grounds that the Visa Refusal Appeal Commission had not yet reached a decision.
On 30 July 2008, as two months without a response from this committee constituted an implicit rejection, the applicant filed a new application for interim suspension and an application for interim release dated 3 August 2008.
In an order dated 13 August 2008, the interim relief judge of the Conseil d’Etat dismissed the application for interim relief.
By letter dated 13 August 2008, the applicant was informed that the interim suspension hearing had been set for 10 September 2008. Present at the hearing that day, the claimant discovered a memorandum from the Minister of Immigration questioning the birth certificates of his children Michèle and Benjamin, which had not been communicated to him. Following this hearing, the claimant filed a memorandum.
On 16 September 2008, the interim relief judge informed the claimant that he had decided to reopen the investigation of his case and that he had communicated the note for deliberation to the competent Immigration Minister.

In an order dated 26 September 2008, the Conseil d’Etat dismissed the application for interim relief. It considered that the argument that the reason for refusing the visa application – the apocryphal nature of the birth certificates produced for X and Y – could not legally form the basis of the refusal decision, was not such as to give rise to serious doubt as to the legality of this decision, given the results of the civil status checks carried out by the French Consulate General in Yaoundé and the fact that the fraudulent nature of the application was such that the visas applied for not only for these two children, but also for his wife and third child under the family reunification procedure, were refused. For the same reason, it rejected the plea alleging infringement of the International Convention on the Rights of the Child, the plea alleging infringement of Directive (EC) no. 2003/86 of 22 September 2003 on the right to family reunification, and the pleas alleging that separation from his family for more than four years constituted inhuman treatment prohibited by article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that the contested decision would introduce an unjustified difference in treatment between foreigners and French nationals or nationals of a Member State of the European Union and would excessively interfere with his right to a normal private and family life.
As part of the action for ultra vires, the competent minister submitted a statement of defence on 6 October 2008. On 23 October 2008, the applicant replied, providing evidence of the correspondence with his family and receipts for money transfers to his family (the file also contained a UNHCR/Cameroon certificate of family composition dated 26 September 2008, showing his wife and three children). As for the plea alleging that the birth certificates of his children X and Y were fraudulent, he argued that the documents had only been checked from 18 February 2009, i.e. five months after the interim relief judge had given advance credence to the doubts raised by the authorities in support of their refusal to issue the visas in question. In this regard, the applicant produced copies of receipts for visa application processing fees dated 18 February 2009.
In a decision dated 8 July 2009, notified on 5 August, the Conseil d’Etat rejected the request to annul the implied decision. It considered that it was clear from the documents in the file that the reason for the visa refusal was the fraudulent nature of the documents produced, which did not allow the alleged parent-child relationship to be considered established. In this respect, it pointed out that the record retrieval carried out by the French authorities at Cameroon’s civil status registry in order to verify the civil status records produced by the applicant for the two children born in that country and concerned by the visa application, had led to the issue, under the same reference numbers, of two completely different birth certificates, concerning third parties. In this regard, the Conseil d’Etat considered that the fact that the fraudulent nature of one of the two aforementioned certificates had not been demonstrated with certainty by the authorities was not such as to create doubt as to the demonstration of the apocryphal nature of the second certificate and concluded that ‘under these conditions, neither the production of birth declarations from the Yaoundé maternity hospital and the Yaoundé police medical centre, nor the allegation that this discrepancy is due to a malfunction in Cameroon’s civil status services, can rule out the fraudulent nature of at least one of the documents thus produced’. Lastly, it specified that the fraudulent nature of at least one of the documents produced was such that all the visas applied for should be refused if the applications were submitted under the same family reunification procedure.
Following this decision, the applicant contacted the UNHCR/Paris office and the Director of OFPRA.
In a letter dated 18 August 2009, the UNHCR replied that, according to the information provided by the UNHCR/Cameroon delegation, the French Consulate in Yaoundé was prepared to issue a visa to his wife and two of his children, Y and Z. Regarding the birth certificate of his daughter X, he was advised to apply to the Yaoundé High Court for a supplementary birth certificate. In a letter dated 21 August 2009, the Director of OFPRA wrote to Cimade, which had also been informed of the case, that his departments, in a note dated 23 July 2007, had certified his family situation to the visa sub-directorate in Nantes, the only authority with jurisdiction over family reunification for foreign nationals.
The applicant’s wife applied to the Yaoundé Court of First Instance to have a suppletive judgement issued regarding the civil status of child X. In a judgment of 27 October 2009, this court declared that it did not have jurisdiction.

GRIEVANCES

  1. Invoking Article 8 of the European Convention on Human Rights, the applicant complained that the authorities had refused to issue visas for his children and his wife. This refusal was based on a doubt as to the validity of the birth certificates, a doubt that had been raised before the interim relief judge even though no verification had yet been carried out on these certificates. He complained that there was a presumption of fraud contrary to Article 8(2), since it was not provided for and was not necessary, and considered that the opposite presumption should be applied. He explained that he had been separated from his family for more than five years, which caused him great suffering and had repercussions on his health.
  2. With regard to Article 6 § 2 of the European Convention on Human Rights, the applicant alleged that the State had accused him of producing fraudulent acts, a criminal offence, even though he had been denied the guarantees of criminal proceedings. He referred to a gross and manifest abuse of process.
  3. Invoking Articles 6 § 1 and 14 of the European Convention on Human Rights, the applicant complained that he had not had a fair trial and denounced a policy that prevented family reunification by means that penalised children and did not take account of the administrative practices of the countries from which the refugees came.

QUESTION TO THE PARTIES

In view of the documents provided by the applicant, including in particular the certificates from the High Commission for Refugees/Cameroon and OFPRA on the composition of his family, did the refusal to grant the applications for visas to enter France by his wife and children X, Y and Z constitute interference with the applicant’s right to respect for family life within the meaning of Article 8 of the European Convention on Human Rights? Is there any evidence to refute the aforementioned documents and attestations? If so, is it justified under paragraph 2 of Article 8?

The Government is invited to provide information on the visa application procedure for refugee families.

Condemnation: data protection

FIFTH SECTION Application no. 19522/09
Judgment M* K** v France of 18 April 2013

Represented by Christophe MEYER – Avocat

FACTS (extracts)

The applicant was born in 1972 and resides in Paris.

On 10 February 2004, an investigation was opened against the applicant for theft of books. The investigation services took his fingerprints.

In a judgment of 15 February 2005, following an appeal against a judgment handed down on 28 April 2004 by the Paris Criminal Court, the Paris Court of Appeal acquitted the claimant.

On 28 September 2005, the applicant was taken into police custody as part of a flagrante delicto investigation, also for book theft. He was again fingerprinted.

On 2 February 2006, these proceedings were dropped by the Paris public prosecutor.

The fingerprints taken during these proceedings were recorded in the automated fingerprint database (FAED).

In a letter dated 21 April 2006, the applicant asked the Paris public prosecutor to have his fingerprints deleted from the FAED.

On 31 May 2006, the public prosecutor ordered only the samples taken during the first proceedings to be deleted. He argued that retaining a copy of the applicant’s fingerprints was justified in the applicant’s interests, as it would make it possible to exclude his involvement in the event of an offence committed by a third party using his identity.

On 26 June 2006, the applicant appealed to the liberty and custody judge of the Paris Tribunal de Grande Instance.

In an order dated 25 August 2006, the liberty and custody judge rejected his request. He ruled that keeping the fingerprints was in the interests of the investigating authorities, as it would provide them with a file with as many references as possible. The judge added that this measure did not cause any harm to the applicant, given the confidentiality of the file, which ruled out any consequences for the applicant’s social or personal life.

On 21 December 2006, the President of the Investigating Division of the Paris Court of Appeal confirmed this order.

In a ruling dated 1 October 2008, the Court of Cassation dismissed the appellant’s appeal on the grounds that, since the proceedings had been conducted in writing, he had been given the opportunity to present his arguments and to examine the reasoned opposition of the public prosecutor. It added that the procedural documents enabled it to satisfy itself that the application had been dealt with in accordance with the statutory and treaty provisions relied on by the applicant, including Article 8 of the Convention.

SOLUTION (extracts)

In the present case, the measure at issue, which did not in itself impose any obligation on the applicant, was subject to consultation arrangements which were sufficiently regulated, whether in terms of the persons authorised to consult the file or the authorisation regime to which the identification operations corresponding to the purpose of the file were subject (see, conversely, Khelili v. Switzerland, no. 16188/07, § 64, 18 October 2011).

The Court observes that the same does not apply to the system for collecting and storing data.

The Court notes at the outset that the purpose of the file, notwithstanding the legitimate aim pursued, necessarily results in the addition and retention of as many names as possible, as confirmed by the reasoning of the liberty and custody judge in his order of 25 August 2006 (see paragraph 14 above).

It also noted that the public prosecutor’s refusal to delete the samples taken during the second proceedings had been motivated by the need to protect the applicant’s interests, by making it possible to exclude his participation in the event of his identity being stolen by a third party (see paragraph 12 above). However, apart from the fact that such a reason is not expressly apparent from the provisions of Article 1 of the Decree at issue, unless it is interpreted particularly broadly, the Court considers that to accept the argument based on an alleged guarantee of protection against the actions of third parties liable to misappropriate an identity would, in practice, amount to justifying the registration of the entire population present on French soil, which would certainly be excessive and irrelevant.

Furthermore, in addition to the first function of the file, which is to facilitate the search for and identification of the perpetrators of crimes and misdemeanours, the text adds a second, namely ‘to facilitate the prosecution, investigation and judgment of cases brought before the judicial authority’, which is not clearly stated to be limited to crimes and misdemeanours. By also referring to ‘persons implicated in criminal proceedings whose identification proves necessary’ (article 3, 2 of the decree), it is likely to encompass de facto all offences, including simple misdemeanours in the event that this makes it possible to identify the perpetrators of crimes and misdemeanours in accordance with the purpose of article 1 of the decree (paragraph 17 above). In any event, the circumstances of the present case, relating to the theft of books which had been discontinued, show that the text applies to minor offences. The present case is thus clearly distinguishable from those which specifically concerned offences as serious as organised crime (S. and Marper, cited above) or sexual assault (Gardel, Bouchacourt and M.B., cited above).

In addition, the Court noted that the Decree made no distinction based on whether or not there had been a conviction by a court or even prosecution by the public prosecutor’s office. In its judgment in S. and Marper, the Court emphasised the risk of stigmatisation arising from the fact that persons who had been acquitted and persons who had had their cases dismissed – and were therefore entitled to enjoy the presumption of innocence – were treated in the same way as convicted persons (see paragraph 22). The situation in the present case is similar on this point, since the applicant was acquitted in the initial proceedings, only to have the charges subsequently dismissed.

In the Court’s view, the provisions of the decree at issue relating to the data retention arrangements did not afford sufficient protection to the persons concerned either.

First of all, as regards the possibility of deleting the data, the Court considered that the right to submit a request to that effect to a court at any time was liable to conflict, in the words of the Order of 25 August 2006, with the interests of the investigating authorities, which needed to have a file with as many references as possible (see paragraph 14 above). Consequently, since the interests at stake were – if only in part – contradictory, deletion, which was not in fact a right, constituted a ‘theoretical and illusory’ rather than a ‘concrete and effective’ guarantee.

The Court noted that although the retention of information in the file is limited in time, the archiving period is twenty-five years. Given its previous finding that the chances of success of requests for deletion were hypothetical, to say the least, such a period could in practice be likened to indefinite retention or at least, as the applicant maintained, to a standard rather than a maximum.

In conclusion, the Court considers that the respondent State exceeded its margin of appreciation in the matter, since the rules governing the retention in the disputed file of the fingerprints of persons suspected of having committed offences but not convicted, as applied to the applicant in the present case, do not reflect a fair balance between the competing public and private interests at stake. Accordingly, the retention at issue amounted to a disproportionate interference with the applicant’s right to respect for his private life and could not be regarded as necessary in a democratic society.

There was therefore a breach of Article 8 of the Convention.

Contact our human rights lawyers
  • By post: 67 rue Boecklin, 
67000 Strasbourg, France
  • By telephone: 03 88 21 81 25
  • Via our form