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The impact of the European Court Since the decisions of the European Court of Human Rights are not rendered by way of preliminary ruling, they cannot be used by the judge in chambers to assess whether there is a serious doubt about the legality of an act whose incompatibility with a provision of the European Convention on Human Rights is invoked .
The role of the European Court of Human Rights in the evaluation of legal acts: –
Article L. 561-2 of the code on the entry and stay of foreigners and the right to asylum provides, as an alternative to placement in detention, the house arrest of foreigners awaiting deportation. Several provisions of the circular of July 6, 2012 which specifies the interpretation of this article have been the subject of a summary procedure.
The applicants request in particular the suspension of the execution of III of the circular (relating to situations in which a family of foreign nationals could be deprived of the benefit of house arrest) insofar as it allows the placement in detention of minor children. They invoked in support of their claim a violation of Article 5 of the European Convention on Human Rights.
The discretion of the judge: ignoring the decisions of the European Court and legal doubts: –
The aim was to bring the judge in chambers into the area of compliance of the provisions relating to administrative detention with Article 5 of the European instrument. And, the judge refused the discussion by holding that in view of his function, “except when the manifest incompatibility of legislative provisions with the rules of European Union law is raised, a plea based on the contrariety of the right to international commitments is not, in the absence of a judicial decision having ruled to this effect, rendered either by the administrative judge seised in the main proceedings, or by the competent summary judge, likely to create a serious doubt as to the legality of the act whose suspension Is requested”!
And yet, we remember that in Popov v. France, the Court had clarified to what extent the detention of minor children was contrary to the Convention. But, considering that “the judgments of the European Court of Human Rights not being rendered as a preliminary ruling”, the judge in chambers refused to take them into account… But who is the best interpreter of the Convention if c is the Court of Strasbourg? ? And doesn’t the fact that the latter sanctioned the disputed legislation a few months earlier risk raising serious doubts as to its legality?
