FECL 05 (April 1992):
The six foreigners (one national from Zaire and five Haitians) were held during several days at a hotel adjacent to the airport. A wing of the hotel had been declared part of the "international zone" by the immigration authorities for the occasion.
The six had been denied entry into France by the Air and Border Police (PAF), either for lacking a visa or because their asylum application was under examination or had been rejected. As a result, the PAF had notified departure dates to their home countries to them and detained them on the first floor of the hotel, which has been hired permanently by the Interior ministry for this objective, pending the deportation measure.
The judges argued that this retention for an "undetermined period" without the benefit of the "rights guaranteed by law" but only of those arbitrarily
imposed by the administrative authorities" constituted "an act of violence". The court pointed out that the foreigners were lodged in rooms with barred windows and were prohibited to leave the first floor of the hotel, whose access door was locked and guarded by police, which prevented any entry or exit not authorized by the administration.
The court stated that such retention "without the least judiciary control results in affecting the individual liberty of the person concerned".
The court also rejects the Interior minister's argument, according to which the privation of liberty merely consisted in a prohibition to enter into France. "No national or international text" admitted the assignment of "whatever exterritoriality" to a hotel situated outside of the airport's precincts.
This decision confirms the illegality of the present "international zone" in which the "undesirable" foreigners are held.
In a late attempt to legalize the practice the government had proposed the so called "Marchand law", which was adopted by the Parliament but later invalidated by the Constitutional Council (see Circular No.4: French Constitutional Council declares 'transit zones' for 'undesirable aliens' unconstitutional).
In a first reaction the Interior minister announced that he will appeal against the decision and said that the sentence justified "a posteriori" his project, to create a legal base for the "transit zone".
Indeed, the risk for a new attempt to legalize the practice of detention in the "international zone" persists. The Constitutional Court had no objection against the principle as such but argued that their should be some form of judiciary control.
By motivating the illegality of the detention by the mere fact that localities outside the precincts of the airport could not be declared part of the transit zone by a simple administrative act the decision of the tribunal de premiŠre instance too leaves the door open for a legalization of the practice. Indeed, it could be interpreted as an invitation for the government to create a legal base for the setting up of localities within the precincts of the airports and with a purely formal judiciary control.
Source: L'Humanité‚, 27.3.92