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1. The authors are Mr.
Benjamin Ngambi, of Cameroonian origin and with refugee status in France,
and Ms. Marie-Louise Nebol, of Cameroonian nationality and resident in
Douala, Cameroon. They claim to be victims of violations by France of
articles 17 and 23 of the International Covenant on Civil and Political
Rights. They are not represented by counsel.
1.2 On 15 October 2003 the Committee, acting through its Special Rapporteur
on New Communications, decided to separate consideration of the
admissibility and merits of the communication.
THE FACTS AS SUBMITTED
2.1 Mr. B. Ngambi states that he married Ms. M.-L. Nebol in Cameroon on 15
January 1983. After engaging in political activity, he was arrested by the
police on two occasions and fled Cameroon in 1993. He submitted an
application for refugee status in France in 1994.,
2.2 On 8 March 1995 the French authorities accorded refugee status to Mr. B.
Ngambi and, on 16 May 1995, issued a record of civil status acknowledging
his marriage to Ms. M.-L. Nebol.
2.3 Nevertheless, in a decision dated 19 September 1999, the Consul General
of France in Douala, Cameroon, denied the application for a visa for Ms.
M.-L. Nebol on the ground of family reunification, as the Cameroonian
authorities had indicated that the authors' marriage certificate was not
genuine. The decision states that the denial did not constitute a
disproportionate interference with the right to privacy and to a family life
owing to the circumstances indicated above, and to the fact that in practice
Ms. M.-L. Nebol and Mr. B. Ngambi had no conjugal life together; the latter
had in fact had a relationship with Ms. M.K., with whom he had had a child.
2.4 On 23 May 2001, in a ruling on Ms. M.-L. Nebol's appeal against the
decision by the Consul General of France, the Council of State found that
the fact that the marriage certificate submitted by the authors was not
genuine, and that this circumstance became known subsequent to recognition
by the French authorities of the authors' marriage certificate, constituted
legal justification for the denial of a visa for Ms. M.L. Nebol. The Council
concluded that, since the authors did not cohabit as spouses, the decision
of 19 September 1999 was not a disproportionate interference with the right
of the party to respect for private and family life, as guaranteed by
article 8 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms.
THE COMPLAINT
3.1 The authors assert that the decision by the Council of State constitutes
a serious infringement of their right to a private and family life, in
violation of articles 17 and 23, paragraphs 1 and 3 of the Covenant. They
claim that the State party has interfered in their private and romantic life
by enquiring into Mr. B. Ngambi's extramarital relationship and by informing
Ms. M.-L. Nebol of them.
3.2 The authors further maintain that the French authorities have attempted
to compel Mr. B. Ngambi to marry Ms. M.K, in violation of article 23,
paragraph 2 of the Covenant.
3.3 The authors state that they have exhausted domestic remedies and that
the same matter is not being examined under another procedure of
international investigation or settlement.
OBSERVATIONS BY THE STATE PARTY
4.1 In its observations of 24 July 2003 the State party contests the
admissibility of the communication.
4.2 Firstly, the State party offers the following clarifications as to the
facts. On 7 March 1994 Mr. B. Ngambi applied for refugee status in France.
On 19 December 1994 his application was denied by the French Office for the
Protection of Refugees and Stateless Persons (OFPRA). Ruling on the author's
appeal on 8 March 1995, the Refugee Appeals Commission accorded him refugee
status.
4.3 On 23 August 1995 OFPRA, relying on declarations by Mr. B. Ngambi which
later proved false, recorded the marriage of Mr. B. Ngambi with Ms. M.-L.
Nebol and issued a marriage certificate and a family civil status record.
4.4 On 13 November 1996, Adeline, the child of Mr. B. Ngambi and Ms. M.K.,
was born in France.
4.5 On 7 January 1998 Ms. M.-L. Nebol, claiming to be Mr. B. Ngambi's wife,
applied for a long-stay visa for entry into France.
4.6 On 2 March 1998 the Ministry of Foreign Affairs informed Mr. B. Ngambi
that his "union with Ms. M.K." had had the effect of ending his conjugal
life with Ms. M.-L. Nebol. Under these circumstances the "family
reunification procedure was no longer applicable".
4.7 On 20 March 1998 Mr. B. Ngambi applied to the Paris Administrative Court
for annulment of the decision of 2 March 1998.
4.8 On 30 March 1998 the mayor of Douala, Cameroon, wrote to the Consul
General of France in Douala, stating that marriage certificate No. 117/83
(the number on the marriage certificate supplied by the authors in
connection with their application for family reunification) related, in
reality, to the marriage of Mr. Francois Yonkeu and Ms. Marceline Yakam.
Accordingly, the marriage certificate supplied by the authors was not
genuine.
4.9 On 3 April 1998 the Consul General of France transmitted this
correspondence to OFPRA. On 11 May 1998 the consulate also informed OFPRA
that the birth certificates of Ms. M.-L. Nebol and the authors' two claimed
sons, Frank Ngambi and Emmanuel Ngambi, were not genuine and confirmed that
the authors' marriage certificate was not genuine.
4.10 On 4 June 1999 the Paris Administrative Court annulled the decision by
the Ministry of Foreign Affairs of 2 March 1998 as ultra vires.
4.11 On 19 September 1999 the Consul General denied Ms. M.-L. Nebol's visa
application. On 7 October 1999 Mr. B. Ngambi submitted an application to the
Paris Administrative Court for execution of the judgement of 4 June 1999 of
the same court. On 18 November 1999 Ms. M.-L. Nebol submitted an application
to the Council of State for rescission of the denial of a visa on 19
September 1999.
4.12 On 23 May 2001 the Council of State rejected the application by Ms.
M.-L. Nebol. The council considered that, in taking his decision, the Consul
General of France in Douala had relied, in part, on the documents produced
by Douala municipality, on the fact that the certificate produced by Ms.
M.-L. Nebol attesting to her marriage with Mr. B. Ngambi was not genuine,
and, in part, on the absence of conjugal life by the authors.
4.13 Lastly, with a view to assisting the Committee in forming its views on
Mr. B. Ngambi and his family relationships, the State party thought it
relevant to provide the following information.
4.14 By an order of 17 January 2000, the Paris District Court withdrew Ms.
Sophie Ngambi Enono from the guardianship of Mr. B. Ngambi, her guardian.
The order states that "Sophie Ngambi Enono, born on 17 February 1970 at
Bertoua, Cameroon (�) is severely handicapped as the result of a trisomy,
and is completely dependent; she is confined by her guardian to a study
bedroom (�) where she is left alone and fed, at best, once a day". The court
ordered Mr. B. Ngambi to provide an accounting to the new legal
representative, and in particular that "Benjamin Ngambi must provide a full
account of the disposition of the amount of 35,193 French francs received on
16 September 1999 by Sophie Ngambi Enono as disability benefit arrears".
4.15 Further, the Paris police chief, in transmitting to the Director of
OFPRA on 23 May 2000 the order by the Paris District Court, stated that: "I
wish to draw your attention in connection with acts by Mr. Ngambi to the
fact that he appears to be responsible for the arrival in France of several
asylum-seekers as well as of several children of Cameroonian nationality who
entered France on false passports from the Central African Republic and in
respect of whom he produced a guardianship order from the Douala District
Court (�)."
4.16 Secondly, the State party asserts that the allegations of violations of
articles 23 and 17 of the Covenant are inadmissible. In the first place the
State party contends that the communication by the authors is incompatible
ratione materiae with the provisions of article 23 of the Covenant.
4.17 The State party recalls that it has not been established that the
authors are married. In any event they have not provided any evidence to
this effect. On the contrary, as certified by Douala municipality in its
letter of 30 March 1998, the marriage certificate supplied to the French
authorities by the authors was not genuine.
4.18 Furthermore, Mr. B. Ngambi left Cameroon in May 1993, according to
information that he provided to the Refugee Appeals Commission, and has been
living in France at least since 17 February 1994, the date on which a
residence permit was issued at Bobigny, France. Accordingly, Mr. B. Ngambi
cannot claim that he maintains a conjugal life with Ms. M.-L. Nebol, who
lives in Cameroon. Lastly, Mr. B. Ngambi has been cohabiting with Ms. M.K.
with whom he had a child, Adeline, born on 13 November 1996.
4.19 Thus, according to the State party, the authors do not constitute a
"family" within the meaning of article 23 of the Covenant and thus cannot
invoke protection by society and the State (art. 23, para. 1), which is not
applicable in their case.
4.20 The State party also maintains that article 23, paragraphs 2 and 3,
also fail to apply to the situation of the authors. In fact their "right to
marry and to found a family" has never been contested. Contrary to the
assertions by the authors, the French authorities have not put any pressure
either on the authors, or on Ms. M.K., to induce the latter to marry Mr. B.
Ngambi. According to the State party these are mere assertions by the
authors, who have provided no documentary evidence to substantiate their
complaint. Further, for article 23, paragraphs 2 and 3, to be applicable in
this case, the authors would need to establish that they had been frustrated
in their plans to marry, either because they had been prevented from doing
so, or, on the contrary, because they had been forced to do so. The State
party concludes that no such factor is present in this case. In actuality
the French authorities have contested the reality of their marriage, and not
their desire to marry.
4.21 Lastly, the State party considers that article 23, paragraph 4, is
inapplicable, since it relates to "spouses", whereas the authors have not
proved that they were married.
4.22 Secondarily, the State party asserts that the authors are not victims
of violations of article 23, on the grounds stated above.
4.23 The State party then explains that the allegation of a violation of
article 17 of the Covenant is inadmissible in that the authors are not in
fact victims. The State party recalls that Ms. M.-L. Nebol made an
application for a long-stay visa for entry into France on the ground of
family reunification. In consequence, according to the State party, it was
completely logical for the French authorities to verify that the application
had indeed been made by the wife of Mr. Ngambi. The checks carried out by
the French authorities were further to the application by Ms. M.-L. Nebol.
It was thus the visa application that led to the so-called "interference" by
the French authorities in her private and family life. In the circumstances,
according to the State party, the involvement by the French authorities,
which was a natural consequence of the application for family reunification
made by the authors, cannot have resulted in the slightest injury to them.
They themselves sought this involvement with a view to obtaining a visa for
Ms. M.-L. Nebol.
COMMENTS BY THE AUTHORS ON THE OBSERVATIONS BY THE STATE PARTY
5.1 In their comments of 17 November 2003 the authors maintain that their
communication is admissible.
5.2 With regard to article 23 of the Covenant, the authors reiterate that
their marriage certificate No. 117/83, issued and authenticated by Douala
municipality on 7 October 1997, was recognized as such in a letter from the
Ministry of Foreign Affairs dated 30 December 1997, as well as by OFPRA; it
thus cannot be questioned, and cannot justify the denial of a long-stay visa
for Ms. Nebol.
5.3 As for their status as victims, the authors emphasize that their lack of
a conjugal life is the result of the refusal of the consular authorities to
allow them to be together in France.
5.4 With regard to article 17 of the Covenant, the authors are of the view
that the authorities subsequently wrongly considered that their marriage
certificate was a forgery; they take the view that denial of the visa for
Ms. Nebol was an attempt to undermine their marriage. With regard to Mr.
Ngambi's liaison with Ms. M.K., the author states that "this was a
short-lived liaison, reflecting the lifestyle led in France", falling
strictly within his private life, and that as such it should not be confused
with polygamy and should not affect his application for family
reunification. Lastly, the authors maintain that the attitude of the French
authorities amounts to pressure on and intimidation of them.
5.5 Regarding the subsidiary information provided by the State party
concerning its rescission of guardianship over his cousin Ms. Sophie Ngambi
Enono, the author asserts that this is exaggerated, and claims that the case
indicates persecution of himself by the judicial authorities.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
6.2 As it is bound to do under article 5, paragraph 2 (a), of the Optional
Protocol, the Committee has ascertained that the same matter is not being
examined under another procedure of international investigation or
settlement.
6.3 With regard to the claimed violation of article 23 of the Covenant, the
Committee has noted the arguments of the authors and of the State party.
Although the authenticity of the authors' "marriage certificate" was not at
first questioned either by OFPRA or by the Ministry of Foreign Affairs in a
letter dated 30 December 1997, nonetheless, marriage certificate No. 117/83
of 15 January 1983 purporting to be from the municipality of Douala was
determined by the municipality on 30 March 1998 to be inauthentic and this
report was invoked by the Consul General of France in Douala on 19 September
1999 as a ground for denial of Ms. Nebol's visa application. In addition,
the birth certificates supplied by Ms. Nebol to authenticate the family
relation of the authors' two claimed sons, Franck Ngambi and Emmanuel
Ngambi, as well as her own birth certificate, were also determined by the
Consul General to be inauthentic.
6.4 Article 23 of the Covenant guarantees the protection of family life
including the interest in family reunification. The Committee recalls that
the term "family", for purposes of the Covenant, must be understood broadly
as to include all those comprising a family as understood in the society
concerned. The protection of such family is not necessarily obviated, in any
particular case, by the absence of formal marriage bonds, especially where
there is a local practice of customary or common law marriage. Nor is the
right to protection of family life necessarily displaced by geographical
separation, infidelity, or the absence of conjugal relations. However, there
must first be a family bond to protect. The Committee notes that the authors
submitted to French authorities documents supposedly attesting to the family
relationship, but these documents were determined by French authorities to
be fabricated. The Committee further notes that the authors have not
effectively refuted these findings, thus giving the French authorities
sufficient basis to deny the authors' applications for a long-term visa and
family reunification. The Committee considers that the authors have not
substantiated their allegation that the right to protection of family life
has been infringed by the French authorities.
6.5 With regard to the alleged violation of article 17 of the Covenant, that
is, interference with private and family life, the Committee notes that the
inquiries conducted by the French authorities as to Ms. Nebol's status and
family relations followed upon her request for a visa for family
reunification, and necessarily had to cover considerations relating to the
private and family life of the authors. The Committee considers that the
authors have not demonstrated that these inquiries amounted to arbitrary and
illegal interference in their private and family life. Nor have the authors
substantiated their allegations of pressure and intimidation on the part of
the French authorities aimed at undermining their so-called marriage.
7.1 Accordingly, the Committee finds the complaints inadmissible under
article 2 of the Optional Protocol.
7.2 The Committee therefore decides:
(a) That the communication is inadmissible under article 2 of the Optional
Protocol;
(b) That this decision shall be communicated to the State party and to the
author.
___________________________
[Adopted in English, French and Spanish, the French text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
** Pursuant to Rule 84, 1(a) of the Committee's rules of procedure, Ms.
Christine Chanet did not participate in adoption of the decision. |
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