Vrouw van ETA-activste krijgt veertien jaar lang geen definitieve verblijfsvergunning: Frankrijk veroordeeld door Mensenrechtenhof (en)

The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Aristimuño Mendizabal v. France (application no. 51431/99).

The Court held:

• - 

  by six votes to one that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights;
• - 

  unanimously that there had been no violation of Article 13 (right to an effective remedy) of the Convention.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 50,000 euros (EUR) for pecuniary and non-pecuniary damage and EUR 2,800 for costs and expenses. (The judgment is available only in French.)

• 1. 

  Principal facts

The applicant, Maria Isabel Aristimuño Mendizabal, is a Spanish national who was born in 1952 and lives in Tarnos (France). In 1984 she married a Spanish national, a former leader of ETA, who has been in prison since June 1984 and was extradited to Spain in 1992. Their daughter, born in 1984, has French nationality.

The applicant has lived in France since September 1975 and was granted political asylum there in 1976. Following the political changes in Spain, her status as a political refugee was withdrawn on 14 March 1979. Between that date and 29 December 1989 she was issued with a series of temporary residence permits each valid for one year.

On 27 December 1989 the applicant applied for renewal of her residence permit and for a work permit. The Tarnos municipal authorities, acting on behalf of the Landes prefecture, issued her with a receipt for a residence permit application, valid for three months, which was subsequently extended 15 times for three months at a time. Those in possession of such a receipt may carry on an occupation if they hold a work permit or equivalent document.

On 13 August 1993 the prefecture issued the applicant with a receipt for her application for a five-year residence permit, likewise valid for three months. That receipt entitles the holder to work.

Between these dates and December 2003 the applicant was issued either with receipts for residence permit applications, valid for three months, or with letters inviting her to take delivery of such receipts.

In 1994 the applicant applied to the Landes prefecture for a five-year residence permit, but received no response. She then applied to the administrative courts to have the implicit refusal of her application by the prefect set aside. The Pau Administrative Court granted her application on 6 November 1996.

In December 2003 the applicant obtained a ten-year residence permit in accordance with the 2003 Immigration Control, Residence of Aliens and Nationality Act, which abolished the requirement for Community nationals wishing to take up residence in France to hold a residence permit.

• 2. 

  Procedure and composition of the Court

The application was lodged on 23 September 1999 and declared partly admissible on 21 June 2005.

Judgment was given by a Chamber of seven judges, composed as follows:

Ireneu Cabral Barreto (Portuguese), President,

Jean-Paul Costa (French),

Karel Jungwiert (Czech),

Volodymyr Butkevych (Ukrainian),

Mindia Ugrekhelidze (Georgian),

Antonella Mularoni (San Marinese),

Elisabet Fura-Sandström (Swedish), judges,

and also Sally Dollé, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaints

The applicant complained that, over a 14-year period, the French authorities had issued her with receipts for residence permit applications instead of the residence permit to which she had been entitled. She also complained that she had had no effective remedy. She relied on Articles 8 and 13.

Decision of the Court

Article 8

The Court reiterated that, according to its case law, the Convention did not guarantee the right of an alien to enter or to reside in a particular country or not to be deported from it. Contracting States had the right, as a matter of well-established international law, to control the entry, residence and deportation of aliens.

However, the Court noted that the applicant, as a Community national, had been directly entitled under Community law to reside in France and be issued with a "residence permit for a national of an EEC Member State", valid for five years. The Court therefore interpreted Article 8 of the Convention in the light of Community law and in particular of Member States' obligations regarding the rights of entry and residence of Community nationals.

The Court considered that the failure to issue the applicant with a residence permit for such a long period of time, when she had been lawfully resident in France for over 14 years, had constituted an undeniable interference with her private and family life.

As to whether the interference had been in accordance with the law, the Court observed that, given that the applicant had been resident lawfully and for such a long time, she had, as far back as 1989 (since when she had been issued only with receipts for her residence permit applications), satisfied all the conditions for the granting of a ten-year residence permit laid down by the ordinary law on aliens.

Furthermore, with effect from 1 January 1992, the date on which the transitional period for Spanish nationals ended, the applicant, as an employee and a Community national, had been directly entitled to residence in accordance with Article 48 of the Treaty of Rome and with Regulation 1612/68 and Directive 68/360 of 15 October 1968. The decrees incorporating the provisions in question into French law stipulated that Community nationals belonging to the categories listed (including employees and the self employed) "shall be issued with a residence permit". The first permit issued was to be valid for five years, and was renewable automatically for a further ten years. The circulars sent out to prefects by the Interior Minister on the implementation of those decrees drew their attention to the particular status of Community nationals, and instructed them to give a decision on residence applications within six months.

In the circumstances, the Court considered that the period of over 14 years taken by the French authorities to issue the applicant with a residence permit had not been in accordance with the law, whether the "law" in question was French or Community law, and that there had therefore been a violation of Article 8.

Article 13

The Court observed that the applicant had had a number of remedies available to her in the administrative and civil courts. It considered that French law provided a range of effective remedies and that there had therefore been no violation of Article 13.

Judge Mularoni expressed a partly dissenting opinion, which is annexed to the judgment.

***

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments. More detailed information about the Court and its activities can be found on its Internet site.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.