request not to expel him, the State party violated
article 22 of the Convention because the individual
remedy provided for by that article was rendered
inoperative. He believes that the State party’s
attitude under those circumstances amounts to a
denial of the binding nature of the Convention.
grants that an application for interim relief is
admissible only in support of an application in the
main action, but argues that such an application
could in the present case have been made for
damages for the injury suffered as a result of the
irregularity. Furthermore, the Prefect who signed the
orders of deportation and return to Spain could not
have opposed consideration of such an application
by the judicial court pursuant to article 136 of the
Code of Criminal Procedure.5
3.9 The author also criticizes the French
authorities for the late notification of the deportation
order and its immediate execution, the sole purpose
of which, in his view, was to deprive him of any
contact with his family and counsel, to prevent him
from effectively preparing his defence and to place
him at a psychological disadvantage. He submits that
it was consequently impossible in practice for him to
enter any appeal between the time of notification of
the deportation order and its immediate execution.
Author’s comments
5.1 In his comments, the author recalls the facts
and procedures explained in the previous
communication and reiterates his observations
concerning the admissibility of the communication.
With regard to the merits of the case, he recalls his
claims concerning the personal threat to him of his
being deported to Spain, and the torture and illtreatment he underwent.
State party’s admissibility observations
4.1 On 31 October 1997, the State party disputes
the admissibility of the communication. It indicates
that on 13 January 1997, the day on which the
deportation order was issued and carried out, it had
not known of the Committee’s request for a stay of
execution, which was received on 14 January 1997,
and it therefore could not have taken it into
consideration. It adds that the immediate and rapid
expulsion was necessary for reasons of public order.
5.2 With reference to the request for a stay of
execution of the deportation order made by the
Committee on 13 January 1997, the author disputes
the State party’s claim that it had not received the
request until 14 January 1997 and therefore did not
have time to take it into consideration. In fact, the
Government’s representative was informed by fax of
the request made by the Committee on 13 January
1997, well before the author was notified of the
deportation order late on 13 January 1997. The
author adds that he was handed over to the Civil
Guard by the French police only on 14 January 1997.
During the transfer, the French Government could,
according to the author, have contacted its officials
and deferred deportation.
4.2 The State party considers that the
communication is inadmissible for non-exhaustion
of domestic remedies. If, in view of the nature of the
alleged violation, the Committee were nevertheless
to consider that the remedies actually sought before
the administrative and judicial courts were not useful
since they had no suspensive effect, it should be
pointed out that other channels of recourse were
open to the author. When notified of the deportation
order and the order indicating Spain as the country
of return, he could have applied to the administrative
court for a stay of execution or for effect to be given
to article L.10 of the Code of Administrative Courts
and Administrative Courts of Appeal. The author
could also, when notified of the two orders, have
complained of a flagrant irregularity (“voie de fait”)
to the judicial court if he believed that his transfer to
Spain had no legal justification and violated a
fundamental freedom. According to the State party,
such a remedy could have proved effective in view
of the rapidity with which the judicial court is
required to act and its recognized authority to put an
end to a situation which constitutes a flagrant
irregularity.
5.3 The author further argues that even if the
French Government had not received the
Committee’s request until 14 January 1997, it had
the obligation, on receiving it, under article 3 of the
Convention, to intercede with the Spanish authorities,
through diplomatic channels, for example, to ensure
that the author was protected against any possible illtreatment. He specifies that he was tortured
continuously up to 16 January 1997, long after the
French authorities had received the Committee’s
request.
customary day and at the customary time for such
proceedings. If greater speed is required, however, the
interim relief judge may allow a summons to be given
effect at the time indicated, even on public holidays or
non-working days, either in chambers or at his place of
residence, in an open hearing”.
5
This article states that “in all cases of infringement of the
freedom of the individual, the dispute cannot be taken up
by the administrative authority and the judicial courts
always have exclusive jurisdiction”.
4.3 The State party further specifies that, in order
to obtain a rapid decision, the complainant could
have applied to the interim relief judge on the basis
of article 485 of the new Code of Civil Procedure.4 It
4
This article states that “an application for interim relief is
made by way of summons to a hearing held on the
46
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