Décision de justice

Ocean Viking: the Conseil d’État dismisses the appeal asking for the emergency cessation of the temporary waiting area in which some passengers have been held

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The urgent applications judge of the Conseil d’État today dismissed the appeal from the national association for border assistance to foreigners (ANAFE) asking for an end to the temporary waiting area in which some passengers from the Ocean Viking have been placed. The petitioning voluntary organisation, supported by other organisations, had disputed the conditions in which the waiting area was created and felt that the individuals held in it had been deprived of their rights. The judge pointed out the exceptional circumstances in which the housing of the individuals had been organised. He also noted that border asylum applications had been examined and 66 individuals had been authorised to enter the country and file an asylum application, and that legal proceedings had been conducted; extended detainment had not been permitted for the vast majority of individuals concerned. Lastly, he found that on the date of his intervention, organisations and lawyers could access the waiting area and carry out their work there in conditions that did not make it necessary, at the current stage of proceedings, to take emergency measures.

For humanitarian reasons, the vessel Ocean Viking, carrying 234 individuals from different countries, was authorised by the French authorities to dock at the Toulon naval base. The prefect then created a temporary waiting area including the military base and a holiday village in Hyères, where the 189 individuals were transferred on the evening of 11 November.

ANAFE brought the matter before the urgent applications judge of the administrative court of Toulon to ask for the prefectural order creating the temporary waiting area to be suspended, as it believed that the individuals detained were being unlawfully deprived of their freedom and did not have effective access to their rights. Following the dismissal of its appeal on 16 November, the organisation referred the matter to the urgent applications judge for fundamental liberties of the Conseil d’État, who can, upon appeal, order any measures required for protecting fundamental rights in the event of a serious and clearly unlawful denial of a fundamental liberty. Today, that judge upheld the ruling of the administrative court and dismissed the appeal made by the organisation.

The judge noted the exceptional circumstances in which the holding of the individuals had been organised (a large number of people, the need for emergency medical care, law and order considerations), which led to the creation by the prefect of a temporary waiting area based on the provisions derived from a law of 16 June 20111, in the event of the arrival of a group of individuals away from a 'border crossing area'. He also observed that the rights of those foreign nationals were not seriously and clearly unlawfully denied on these grounds alone. The French office for the protection of refugees and stateless persons (OFPRA) had carried out the legally required interviews, which resulted in 66 individuals being authorised to enter the country to file an asylum application, and the judge for freedoms and detention and then the court of appeal of Aix-en-Provence had ruled on the extension of the holding measures, which had been refused for a large majority of them.

Regarding the exercise of rights within the area itself, the urgent applications judge, ruling on the basis of the de facto situation on the date on which the ruling was handed down, noted that, with the exception of a few hours during which the individuals were on the military base, the petitioning organisation was able to freely access the holiday village. While persistent difficulties were reported at the hearing, they were not sufficiently serious as to require an intervention by the urgent applications judge. The Ministry for the Interior had also sent the organisation an updated list of the 16 individuals still being held to facilitate its tasks of assistance, as it had agreed to do at the hearing of the Conseil d’État of the day before.

Lawyers also have access to the holiday village. There too, deficiencies were observed in the early days of the setting up of the waiting area. But measures had gradually been put in place in an attempt to address them, including the provision of two dedicated rooms and better access to telephone networks and the Internet.

On the date of the order and in the absence of the serious and clearly unlawful denial of a fundamental liberty, the urgent applications judge ruled that emergency measures were unnecessary.

1 Law No. 2011-672 of 16 June 2011 on immigration, integration and nationality.

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