That wording alone was sufficient to make the
complaint of Mr. Arkauz inadmissible, as the
practice of the administrative courts consistently
requires complainants to challenge current and
existing decisions. Therefore, the fact that no ruling
had been made on the complaint by 13 January 1997,
when the deportation order was issued, does not
appear to be decisive in the present case. The
judgement was given two days later, i.e., less than a
month after registration of the application. The
rendering of this court decision was obviously not a
matter of the greatest urgency, since it related not to
a current but to a possible measure.
Spain as the country of destination, he was prevented
by the authorities from communicating with his wife
and counsel. Furthermore, when the latter asked the
authorities for news about the author, no information
was given to them. Thus, contrary to the State
party’s contention, it was made impossible for the
author, after notification of the deportation order and
before its execution, to apply for a remedy, to be
brought before a person capable of receiving such an
application or to communicate with persons who
could have acted in his place.
8.2 The author indicates that the applications
made to the Administrative Court of Limoges were
referred, on 27 July 1998, for consideration by the
Administrative Court of Pau, which rendered its
judgement on 4 February 1999. The judgement
states that while at the time of its submission the
request was premature, the issuance of the orders of
13 January 1997 calling for the deportation of
Mr. Arkauz and his return to Spain had the effect of
regularizing the request. The Court also found the
handing over of the author to the Spanish security
forces to be illegal and therefore annulled that
measure. However, an appeal to a French
administrative court has no suspensive effect and the
Administrative Court of Pau did not reach a decision
on the author’s request until two years after the
actual implementation of the deportation order. The
finding of the author’s surrender to be illegal
therefore has only a symbolic effect in the
circumstances of the present case.
7.2 The author failed to lodge an appeal against
the ministerial order of 13 January 1997 calling for
his deportation from French territory and against the
decision specifying Spain as the country of
destination. An application for a stay of execution
under article L.10 of the Code of Administrative
Courts and Administrative Courts of Appeal, a
possibility of which the complainant was clearly
aware, was both an appropriate and available remedy.
It was not, however, used. The State party therefore
submits that the Committee should declare the
communication inadmissible under rule 110,
paragraph 6, of the rules of procedure.
7.3 The State party argues that the execution of
the deportation measure in question in no way
resulted from a desire of the Government to obviate
the right of recourse available to the person
concerned, both at national and international level. It
was physically impossible for the Government to
have known on 13 January 1997, the day on which
the deportation order was issued and implemented,
of the request for a stay of execution made by the
Committee in its letter of 13 January 1997, that letter
having been received the following day by the State
party, as attested by the stamp placed on the said
document when it arrived. It was therefore
impossible for the request to be taken into
consideration before the execution of the measure.
State party’s merits observations
9.1 The State party notes that, on arrival in France,
the author was given temporary permits to stay as an
asylum-seeker but the French Office for the
Protection of Refugees and Stateless Persons
(OFPRA) and the Refugee Appeals Board rejected
his asylum request in 1981. Thereafter, he neither
reapplied for refugee status, as he could have done,
nor looked for another country prepared to accept
him, although his situation was irregular and he
knew that he might be subject to an enforceable
measure of banishment. In 1992 he was sentenced to
eight years’ imprisonment, a ten-year prohibition on
residence and a three-year ban from French territory
for conspiring with others to commit one or more
offences, as well as for illegally bearing weapons,
keeping explosives and munitions and using false
administrative
documents.
That
conviction
automatically gave rise to the possibility of
deportation.
7.4 The deportation measure was implemented on
13 January 1997, since on that date the author had
paid the sum he owed to the Treasury following his
court conviction and there was then no reason,
bearing in mind the threat that his presence would
represent for public order after his release, to defer a
decision to call for and proceed with his deportation.
Although the author claims that it was physically
impossible for him to enter an appeal, he offers no
proof of this, and he certainly does not deny that the
notice of the deportation order, which he refused to
sign, included information about the procedures and
time limits for an appeal.
9.2 The State party indicates that the real risks
mentioned by the author were evaluated by the
national authorities prior to implementation of the
deportation procedure, according to the criteria
defined in article 3, paragraph 2, of the Convention.
Further comments by the author
8.1 The author states that when he was notified of
the deportation order and of the decision indicating
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