Does the state bear any responsibility for keeping indoctrinated youth away from jihadi hot zones like Syria? That’s the legal question being tested in France, and it’s a case that could have implications for other civil code jurisdictions, such as Quebec.
In November, a woman referred to as Nadine D filed suit against the French government for allowing her 16-year-old son to board a plane for Turkey — a popular gateway for jihadis headed for Syria — without parental supervision and with no passport.
Nadine, who is seeking damages of €110,000, says the border guards should have been more suspicious and their negligence has enabled the radicalization of her child, who has trained under the militant group Jabhat al-Nusra, allied with Al Qaeda.
According to The Christian Science Monitor it is the second such lawsuit filed in France this year. Another one was brought by the father of Mohamed Merah, who went on a shooting spree in March 2012.
Merah’s father lost that case, but as radicalization networks establish themselves across Europe — and particularly in France, where nearly 1,000 citizens have travelled to fight in Syria — the argument the state must shoulder some responsibility is starting to gain traction.
In 2012, France repealed amendments that required minors to fly with parental supervision. The newly amended law also allows French citizens, including minors, to fly to destinations such as Algeria, Tunisia, and Turkey with only their national ID cards.
The provisions, which took effect on Jan. 1, 2013, couldn’t have come at a worse time for parents worried about the possibility their indoctrinated teenagers might run away to join militant groups in Syria.
“The mother’s lawyer should base her claim on the demonstration of gross negligence on the part of the border police within the public sector,” Caroline Yvernault, a Paris-based lawyer, told CSM. “[The lawyer] must attest that the mother suffered injury by her son’s departure, and thus show the link between the negligence and the injuries she has suffered.”
Another option would be to “to prove that the state . . . did not respect the law regarding a minor traveling,” said Muriel Fayat, a public affairs lawyer at Chatain et Associés.
Legal experts interviewed by CSM say the case would not make it very far in English common-law jurisdictions, such as the United States and most Canadian provinces. However, in a civil code jurisdiction, such as France and Quebec, judges are free to diverge from precedent and consider the case in wider context.
Duncan Fairgrieve, director of the Tort Law Centre of the British Institute of International and Comparative Law, who works out of Paris, tells Legal Feeds the lawsuit probably has less to do with the legal liability of the French state — which would be difficult to assert — and more to do with raising the issue publicly.
“Her lawyer, who seems to have been making some statements, said the idea was to try and give the relevant administration a bit of a wake-up call,” he says. “Which suggests this is not a claim they’re entirely optimistic about.”
That being said, Fairgrieve does point to France’s liberal standards for state liability.
“Certainly France’s approach to state liability is more liberal in that the notion of fault is more widely interpreted. . . . In France, there is an extensive regime of ‘no-fault liability’ of the state. In other words, the state can be liable even if you don’t show fault in certain circumstances.”
In this regard, Canada, too, has fairly broad standards for state liability.
“The U.K. is very much on the restrictive side, and Canada I think is much broader. The tort of negligence is structured in a very different way in relation to the case law in Canada, and there’s a tort of negligent investigation [for police liability], which can apply.
“And then you’ve got systems in between that: Australia and the U.S. are certainly more liberal than the U.K [but less liberal than Canada or France]. So there can be variations in state liability cases between different jurisdictions within the same family.
One Quebec law professor, however, who declined to be quoted for this story, say there’s little chance that such a case would work in Quebec, mainly because it’s the federal government, and not Quebec, that has jurisdiction over passports and airports, and the federal courts operate under common law.
Border officials in France, meanwhile, say they were hamstrung by the new law. They assert preventing the child from travelling to Turkey would have been illegal. One can only imagine, for example, the controversy created by a reverse scenario — border officials preventing an innocent child from visiting his grandparents in Turkey due to suspicions of terrorist leanings.
Whether or not the filing is accepted by the courts, this case is bound to prompt further questions in France about whether the state is doing enough to prevent radicalization.