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MUBILANZILA MAYEKA AND KANIKI MITUNGA v. BELGIUM - 13178/03 [2006] ECHR 1170 (12 October 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/1170.html
Cite as:
46 EHRR 23,
[2007] Fam Law 982,
[2006] ECHR 1170,
[2006] 3 FCR 637,
(2008) 46 EHRR 23,
[2007] 1 FLR 1726
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FIRST
SECTION
CASE OF
MUBILANZILA MAYEKA AND KANIKI MITUNGA v. BELGIUM
(Application no. 13178/03)
JUDGMENT
STRASBOURG
12
October 2006
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mr A. Kovler,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
Mr P. Martens, ad
hoc judge,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 21 September 2006,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 13178/03) against the Kingdom
of Belgium lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Congolese nationals, Ms Pulcherie
Mubilanzila Mayeka and Miss Tabitha Kaniki Mitunga (“the
applicants”), on 16 April 2003.
The
applicants were represented by Mr D. Vanheule, a member of the Ghent
Bar. The Belgian Government (“the Government”) were
represented by their Agent, Mr C. Debrulle, Director, Federal Office
of Justice.
The
applicants alleged, in particular, that the second applicant's
detention and deportation had violated Articles 3, 8 and 13 of the
Convention.
The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1. Mrs F.
Tulkens, the judge elected in respect of Belgium, withdrew from
sitting in the case (Rule 28). The Government accordingly appointed
Mr P. Martens to sit as an ad hoc judge (Article 27 § 2
of the Convention Rule 29 § 1).
The
applicants and the Government each filed further written observations
(Rule 59 § 1). The parties replied in writing to each other's
observations.
A
hearing on admissibility and the merits took place in public in the
Human Rights Building, Strasbourg, on 26 January 2006 (Rule 59 §
3).
There
appeared before the Court:
(a) for the Government
Mr C. Debrulle,
Agent,
Mr P. Gérard, Counsel,
Ms C.
Gallant, Attaché, Human Rights Office,
Legislation and
Fundamental Rights and
Freedoms Department, Federal Government
Department of Justice,
Ms L. Peeters, Director, Aliens Office
Inspectorate,
Federal Government Department of the
Interior,
Ms R. Goethals, Director, National Airport Transit
Centre,
Ms N. Bracke, Attaché, Departmental Head,
Border Inspection Department, Aliens Office, Advisers;
(b) for the applicants
Mr D. Vanheule,
Counsel.
The
Court heard addresses by them.
By
a decision of 26 January 2006, the Court declared the application
admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
first applicant was born in 1970 and the second applicant in 1997.
They live in Montreal (Canada).
The
applicants are a mother (hereafter “the first applicant”)
and her daughter (hereafter “the second applicant”). They
explained that the first applicant had arrived in Canada on 25
September 2000, where she was granted refugee status on 23 July 2001
and obtained indefinite leave to remain on 11 March 2003.
After
being granted refugee status, the first applicant asked her brother,
K., a Dutch national living in the Netherlands, to collect the second
applicant, then five years old, from the Democratic Republic of the
Congo (hereafter “the DRC”), where she was living with
her grandmother, and to look after her until she was able to join
her.
At
7.51 p.m. on 17 August 2002 K. arrived at Brussels National Airport
with the second applicant. He did not have the necessary travel and
immigration papers for his niece or documents to show that he had
parental authority and so he tried, unsuccessfully, to persuade the
immigration authorities that the second applicant was his daughter.
He
explained to the Belgian authorities that he had been on a trip to
Kinshasa to visit his father's grave and that the first applicant had
asked him to bring the second applicant to Europe in order to join
her in Canada. The child had been living with a grandmother who was
now too old to look after her and the first applicant's attempts to
bring her to Canada lawfully had failed.
On
the night of 17 to 18 August 2002 the federal police telephoned the
first applicant to inform her of the situation and to give her a
telephone number where she could ring her daughter. The first
applicant explained that she had made an application to the Canadian
authorities on behalf of her daughter.
On
18 August 2002 the second applicant was refused leave to enter
Belgium and directions were made for her removal on the ground that
she did not have the documents required by the Aliens (Entry,
Residence, Settlement and Expulsion) Act of 15 December 1980.
On
the same day directions were issued for her to be held in a
designated place at the border in accordance with section 74-5 of
that Act.
Pursuant
to that decision the second applicant was detained in Transit Centre
no. 127. Her uncle returned to the Netherlands.
On
the same day a lawyer was appointed by the Belgian authorities to
assist the applicant and he applied for her to be granted refugee
status.
On
19 August 2002 the Belgian authorities contacted the immigration
department at the Canadian Embassy in The Hague to request
information on the first applicant's immigration status in Canada.
The immigration department informed them that the first applicant had
applied for asylum and indefinite leave to remain in Canada. However,
the application for asylum made no mention of the second applicant
and so did not extend to her.
In
the interim, the first applicant lodged an application in Canada for
a visa for her daughter.
On
20 August 2002 a lawyer, Mr Ma., informed the authorities that he had
been instructed to replace the lawyer initially assigned to the
second applicant and that he was taking steps to secure leave for the
first applicant to bring her daughter to Canada.
On
22 August 2002 the Aliens Office inquired informally of the Dutch
authorities whether they would be willing to take over the second
applicant's request for asylum under the Dublin Convention, but they
refused.
It
also asked K. to furnish the addresses of the members of the family
in Kinshasa.
In
a letter to Transit Centre no. 127 dated 23 August 2002, the lawyer
thanked the staff at the centre for the friendly welcome they had
given to the second applicant and the care with which they had
attended to her needs.
On
26 August 2002 the immigration office at the Canadian Embassy in the
Netherlands informed the Aliens Office by e-mail of the first
applicant's former address in Kinshasa and her parents' address
there.
On
27 August 2002 the second applicant's request for asylum was declared
inadmissible by the Aliens Office, which refused her leave to enter
and gave directions for her removal. The decision stated that she had
a right of appeal against the refusal to the Commissioner-General for
Refugees and Stateless Persons under the expedited procedure and
could apply within thirty days to the Conseil d'État
for an order setting aside the removal directions.
The
second applicant lodged an appeal under the expedited procedure with
the Commissioner-General for Refugees and Stateless Persons.
On
4 September 2002, in reply to an enquiry from the Aliens Office, the
Belgian Embassy in the DRC advised that the addresses of the members
of the applicant's family in Kinshasa it had obtained on the basis of
information provided by the first applicant were incorrect. The
applicants denied that K. had given false addresses.
In
an e-mail of 23 September 2002 the immigration office at the Canadian
Embassy in the Netherlands informed the Aliens Office that the first
applicant had not yet been granted refugee status in Canada.
On
25 September 2002 at the hearing of the appeal under the expedited
procedure, the Commissioner-General for Refugees and Stateless
Persons upheld the refusal of leave to enter after finding that the
second applicant's sole aim had been to join her mother in Canada and
clearly could not form a basis for an application for refugee status.
He drew the Minister of the Interior's attention to the fact that, as
a minor, the second applicant was entitled to join her family by
virtue of Article 10 of the Convention of New York on the Rights of
the Child dated 20 November 1989.
On
26 September 2002 Mr Ma. sent a letter to the Aliens Office advising
it that the first applicant had obtained refugee status in Canada and
had applied to the Canadian authorities for a visa for her daughter.
He asked the Aliens Office to place the second applicant in the care
of foster parents on humanitarian grounds in view of her age and
position until such time as the Canadian authorities had granted her
leave to enter. He added that Ms M., an eighteen year-old
Belgian national, would make a suitable foster parent. He explained
that although the child was being well treated, she was very isolated
at the centre and at risk of psychological damage as a result of
being detained with adult foreign nationals whom she did not know.
The
Aid to Young People in the French Community Department, from whom Mr
Ma. had sought assistance, supported the proposal.
No
reply was received to the request. From information in the case file
it would appear that the Aliens Office dismissed the idea on the
grounds that it would place the second applicant at risk, as a
warrant had been issued in 1998 for the arrest of Ms M.'s father on
suspicion of sexual offences against minors and he lived in the same
town as Ms M., albeit at a different address. The Aliens Office also
considered that there was a very real danger that the child would be
taken away by her uncle.
In
October 2002 the Aliens Office contacted the Office of the United
Nations High Commissioner for Refugees (HCR), the Red Cross and the
Belgian Embassy in Kinshasa.
With
the Embassy's help it was able, on the basis of K.'s statements, to
identify and subsequently locate a member of the second applicant's
family, namely her maternal uncle, B. (a student living on a
university campus with five other people in what the Embassy
described as suitable accommodation and who, according to the
applicants, was the sole member of the family still living in the
DRC). An official from the Belgian Embassy in Kinshasa went to B.'s
home and explained the situation to him, but B. told him that he did
not have the means to look after the child.
On
9 October 2002 the second applicant's lawyer lodged an application
for her release with the chambre du conseil of the Brussels
Court of First Instance under section 74-5, paragraph 1, of the Act
of 15 December 1980. In the application, he sought an order
setting aside the removal directions of 27 August 2002 and an order
for the second applicant's release and placement with Ms M. acting as
a foster parent or, failing that, with an institute for young
children.
In
the interim, he also contacted the HCR, which made enquiries of the
family in Kinshasa from which it emerged that no one was prepared to
look after the child.
On
10 October 2002 the Belgian authorities booked a seat on a flight on
17 October 2002 with the same airline as the second applicant had
flown with on the outward journey (they cited its obligation under
section 74-4 of the Act of 15 December 1980 to transport at its own
cost anyone not in possession of the requisite travel papers or who
had been removed on lawful grounds to the country from which he had
come or any other country prepared to accept him). The HCR, Aid to
Young People in the French Community Department and the Belgian
Embassy in Kinshasa were informed.
On
11 October 2002 Brussels Crown counsel informed the Aliens Office of
the second applicant's application and requested the case file, which
the Aliens Office supplied on 14 October 2002.
According
to the Government, B. was informed on 12 October 2002 that his niece
would be arriving at 5.45 p.m. on 17 October.
In
a letter of 15 October 2002, the Aliens Office advised Crown counsel
of its views on the application for the second applicant's release:
“... the enquiries have enabled the person
concerned's family to be located in Kinshasa. In view of the positive
results of the enquiries as a whole, a flight has already been
arranged for Thursday 17 October 2002. The child will be met at
Kinshasa by her family. A representative from our Embassy will also
be present. Lastly, we would note that the sole responsibility for
the length of the applicant's detention lies with her uncle, who has
been uncooperative and has studiously avoided giving the Aliens
Office the family's address. Accordingly, in the child's own
interest, she should remain in detention until Thursday 17 October
2002, when she can be returned to her own family in Kinshasa.”
On
the same day, after receiving confirmation from the Aliens Office
that the child was to be removed, the Belgian Embassy official in
Kinshasa informed B. in the following letter, which was sent by
recorded delivery:
“Dear Sir,
I wish to confirm the message which the Embassy has
received from the Department in Brussels, namely, the return of your
niece Mubilanzila Tabitha to Kinshasa (N'Djili) arriving on the Hewa
Bora flight at 5.45 p.m. on Thursday 17 October 2002.
Yours faithfully,
...”
On
16 October 2002 the chambre du conseil of the Brussels Court
of First Instance held that the second applicant's detention was
incompatible with Articles 3.1 and 3.2 of the Convention on the
Rights of the Child and ordered her immediate release. Noting that it
had no jurisdiction to authorise her placement in a foster home or an
institution, it held that the application was well-founded in part.
Its decision was served on the director of Transit Centre no. 127
that same day.
Crown
counsel, who had the right to appeal against that decision within 24
hours, informed the director of the Centre by fax the same day that
he was reserving his decision whether or not to appeal.
On
the same day the HCR's representative in Brussels sent a fax to the
Aliens Office requesting permission for the second applicant to
remain in Belgium while her application for a Canadian visa was being
processed. It drew the Office's attention to the fact that there did
not appear to be an adult in Kinshasa who was able and willing to
look after the second applicant, since, according to the information
in its possession, B. was still a student. It added that the first
applicant had had refugee status in Canada since 23 July 2001, that
the second applicant's father had disappeared in August 2000 and that
her twin sister had been taken to Congo Brazzaville four months
earlier.
On
17 October 2002 the second applicant was deported to the DRC. She was
accompanied by a social worker from Transit Centre no. 127 who placed
her in the care of the police at the airport. On board the aircraft
she was looked after by an air hostess who had been specifically
assigned to accompany her by the chief executive of the airline. The
second applicant travelled with three Congolese adults who were also
being deported.
There
were no members of her family waiting for her when she arrived. The
Government explained that after considerable efforts, the Embassy
official had obtained B.'s agreement to come to the airport to meet
his niece. However, he had reneged on his promise at the last minute.
The
parties have not formally established whether or not a member of the
Belgian Embassy was at the airport, as stated in the Alien Office's
letter of 15 October 2002. The second applicant stayed at the airport
until 5.23 p.m. before eventually being collected by Ms T., a
secretary at the National Information Agency of the DRC, who offered
her accommodation.
On
the same day the first applicant rang Transit Centre no. 127 and
asked to speak to her daughter. She was informed that she was no
longer staying at the Centre and advised to contact the Aliens Office
for further details, which she did. The Aliens Office did not provide
her with any explanation but suggested she speak to the HCR, from
whom she learnt of her daughter's deportation to Kinshasa.
On
18 October 2002 the official from the Belgian Embassy in Kinshasa
went to B.'s home, only to discover that he had disappeared.
On
the same day the Belgian authorities received a message from the
Canadian Embassy in The Hague informing them that the first applicant
had been granted refugee status and indefinite leave to remain in
Canada with a work permit in 2002 and was consequently entitled to
have her family join her.
The
second applicant left the DRC on 23 October 2002 following the
intervention of the Belgian and Canadian Prime Ministers, with the
latter agreeing in principle to authorise the reunification of the
family. The second applicant travelled to Paris with Ms T. and from
there to Canada the same day on a Canadian visa. During the stop over
in Paris, Ms T. and the second applicant were accompanied by two
officials from the Belgian Embassy. The journey was paid for by the
Belgian authorities.
The
case attracted considerable attention from the press in the meantime.
On
25 October 2002 the airline which had flown the second applicant back
to Kinshasa informed the Aliens Office that she had not travelled
alone, but with four other aliens who were also being removed. It
said that it had arranged for an air hostess to look after her until
she was handed over to the authorities in Kinshasa.
On
29 October 2002 the first applicant applied to the Canadian
authorities for a visa permitting family reunification.
At
the request of the Aliens Office, the director of Transit Centre
no. 127 described the second applicant's conditions at the
centre in a letter of 23 November 2004. He explained that she had
been looked after by two women who were themselves mothers, that she
had played with other children, that her uncle and mother had
telephoned her nearly every day and that she had been allowed to
telephone them free of charge under the supervision of a team of
social workers; he added that her lawyer had paid her a number of
visits and had brought her telephone cards, confectionary and money,
she had often played outdoors, had watched large numbers of videos,
done drawings and arithmetic and had been comforted if she showed any
signs of distress after telephone calls from her family. The director
also explained that during the removal procedure the second applicant
had been accompanied to the embarkation area (more precisely, the
federal police checkpoint) by a social worker and that the entire
staff at Transit Centre no. 127 were concerned about the welfare
of children, particularly unaccompanied minors.
II. RELEVANT DOMESTIC LAW AND PRACTICE
38. Aliens (Entry, Residence, Settlement and Expulsion)
Act of 15 December 1980
(a) Appeals against decisions on the
entry, residence, settlement and expulsion of aliens
Section 63
“Administrative decisions may give rise to an
appeal under the expedited procedure, an application to reopen the
proceedings, a request for security measures to be lifted, an
application to an administrative court to have the decision set aside
or an appeal to an ordinary court in accordance with the following
provisions.
No summary application for an interim order under
Article 584 of the Judicature Code will lie against an administrative
decision taken pursuant to sections 3, 7, 11, 19, Part II, Chapter
II, and Part III, Chapter Ibis. ...”
(b) Measures entailing deprivation of
liberty
Section 71
“Aliens against whom a measure depriving them of
their liberty has been taken pursuant to sections 7, 25, 27, 29,
second paragraph, 51-5(3), fourth paragraph, 52bis, fourth
paragraph, 54, 63-5, third paragraph, 67 and 74-6 may appeal against
that measure by lodging a notice of appeal with the chambre du
conseil of the criminal court with jurisdiction for the area in
which they reside in the Kingdom or the area in which they have been
found.
Aliens held in a designated place at the border pursuant
to section 74-5 may appeal against the measure by lodging a notice of
appeal with the chambre du conseil of the criminal court with
jurisdiction for the area in which they are being held.
They may renew the appeal referred to in the preceding
paragraphs at monthly intervals.”
Section 72
“The chambre du conseil shall deliver its
decision within five working days after the date the appeal is lodged
after hearing the submissions of the alien or of his or her counsel
and the opinion of Crown counsel. If the case has been referred to it
by the Minister in accordance with section 74, the chambre du
conseil must hear submissions from the Minister, his or her
delegate or his or her counsel. If it fails to deliver its decision
within the time allowed, the alien shall be released.
The chambre du conseil shall review the legality
of the detention and of the removal directions but shall have no
power to review their reasonableness.
An appeal shall lie against orders of the chambre du
conseil by the alien, Crown counsel and, in the circumstances set
out in section 74, the Minister or his or her delegate.
The procedure shall be the same as that applicable under
the statutory provisions on pre-trial detention, with the exception
of the provisions relating to arrest warrants, investigating judges,
prohibitions on communications, release on licence or on bail, and
the right to inspect the administrative file.
Counsel for the alien may consult the case file at the
registry of the relevant court during the two working days preceding
the hearing. The registrar shall notify counsel of the decision by
registered letter.”
Section 73
“If the chambre du conseil decides that the
alien is not to remain in custody, he or she shall be released as
soon as the decision becomes final. The
Minister may order the alien to reside in a designated place either
until the removal directions have been carried out or until his or
her appeal has been decided.”
Section 74
“If the Minister decides to prolong the alien's
detention or to keep him or her under arrest pursuant to section 7,
paragraph 5, section 25, paragraph 5, section 29, paragraph 3,
section 74-5 § 3, or section 74-6 § 2, he or she must apply
within five working days of that decision to the chambre du
conseil with jurisdiction for the area in which the alien is
resident in the Kingdom or was found to enable it to determine
whether the decision is lawful. If no application is made to the
chambre du conseil within that period, the alien shall be
released. The remainder of the procedure shall be as stated in
sections 72 and 73.”
Section 74-4
Ҥ 1. Any public or private
carrier bringing passengers into the Kingdom who are not in
possession of the documents required by section 2 or who come within
any of the other categories referred to in section 3 shall transport
or arrange for the transport of such passengers without delay to the
country from which they have come or to any other country prepared to
accept them.
§ 2. Any public or private
carrier which has brought passengers into the Kingdom will also be
required to remove them if:
(a) the carrier that was due to take them to
their country of destination refuses to allow them to embark; or
(b) the authorities in the State of
destination refuse them leave to enter and send them back to the
Kingdom and access to the Kingdom is refused because they do not
possess the documents required by section 2 or they fall within any
of the other categories referred to in section 3.
§ 3. If the passengers do not
possess the documents required by section 2 and their immediate
removal is not possible, the public or private carrier shall be
jointly liable with the passengers for the costs of the passengers'
accommodation and stay and any medical expenses they incur. ...”
Section 74-5
Ҥ 1. The following persons may be
held in a designated place at the border pending the grant or refusal
of leave to enter the Kingdom or their removal from the territory:
1o aliens who, pursuant to the
provisions of this Act, are liable to be refused entry by the
immigration authorities;
2o aliens who attempt to enter the
Kingdom without satisfying the conditions set out in section 2, who
claim to be refugees and request refugee status at the border.
§ 2. The Crown may
designate other places within the Kingdom which will be assimilated
to the places referred to in § 1.
Aliens held in such other places shall not be deemed to
have been given leave to enter the Kingdom.
§ 3. Detention in a designated
place at the border may not exceed two months. The Minister or his or
her delegate may however prolong the detention of an alien referred
to in § 1 for two-month periods provided:
1o the alien is the subject of
enforceable removal directions, an enforceable decision to refuse
entry or an enforceable decision upholding the refusal of entry; and
2o the steps necessary to remove
the alien are taken within seven working days of the decision or
measure referred to in 1o and are prosecuted with all due
diligence and the alien's physical removal within a reasonable period
remains possible.
After one extension has been granted, the decision
referred to in the preceding paragraph may be taken only by the
Minister.
The total length of detention shall under no
circumstances exceed five months.
If the preservation of law and order or national
security so demands, aliens may be held for further successive
one-month periods after the time-limit referred to in the preceding
paragraph has expired, provided that the total length of their
detention shall not on that account exceed eight months.
§ 4 The following may enter the Kingdom:
1o aliens referred to in § 1
against whom no decision or enforceable measure referred to in §
3, paragraph 1, 1o has been taken;
2o aliens referred to in § 1
against whom an enforceable decision or measure referred to in §
3, paragraph 1, 1o has been taken but in respect of whom
the Minister or his or her delegate has not extended the period at
the end of the two-month period or of any extension thereof;
3o aliens referred to in § 1
who have been held for a total period of five or eight months
respectively.
...”
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
39. Convention on the Rights of the Child of 20
November 1989, ratified by Belgium by a law of 25 November 1991
Article 3
“1. In all actions concerning children,
whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the
child such protection and care as is necessary for his or her
well-being, taking into account the rights and duties of his or her
parents, legal guardians, or other individuals legally responsible
for him or her, and, to this end, shall take all appropriate
legislative and administrative measures.
3. States Parties shall ensure that the
institutions, services and facilities responsible for the care or
protection of children shall conform with the standards established
by competent authorities, particularly in the areas of safety,
health, in the number and suitability of their staff, as well as
competent supervision..”
Article 10
“1. In accordance with the obligation
of States Parties under article 9, paragraph 1, applications by a
child or his or her parents to enter or leave a State Party for the
purpose of family reunification shall be dealt with by States Parties
in a positive, humane and expeditious manner. States Parties shall
further ensure that the submission of such a request shall entail no
adverse consequences for the applicants and for the members of their
family.
...”
Article 22
“1. States Parties shall take
appropriate measures to ensure that a child who is seeking refugee
status or who is considered a refugee in accordance with applicable
international or domestic law and procedures shall, whether
unaccompanied or accompanied by his or her parents or by any other
person, receive appropriate protection and humanitarian assistance in
the enjoyment of applicable rights set forth in the present
Convention and in other international human rights or humanitarian
instruments to which the said States are Parties.
2. For this purpose, States Parties shall provide, as
they consider appropriate, co-operation in any efforts by the United
Nations and other competent intergovernmental organizations or
non-governmental organizations co-operating with the United Nations
to protect and assist such a child and to trace the parents or other
members of the family of any refugee child in order to obtain
information necessary for reunification with his or her family. In
cases where no parents or other members of the family can be found,
the child shall be accorded the same protection as any other child
permanently or temporarily deprived of his or her family environment
for any reason , as set forth in the present Convention.”
Article 37
“States Parties shall ensure that:
...
b) No child shall be deprived of his or her
liberty unlawfully or arbitrarily. The arrest, detention or
imprisonment of a child shall be in conformity with the law and shall
be used only as a measure of last resort and for the shortest
appropriate period of time;
c) Every child deprived of liberty shall be
treated with humanity and respect for the inherent dignity of the
human person, and in a manner which takes into account the needs of
persons of his or her age. In particular, every child deprived of
liberty shall be separated from adults unless it is considered in the
child's best interest not to do so and shall have the right to
maintain contact with his or her family through correspondence and
visits, save in exceptional circumstances;
...”
In
its “Concluding observations of the Committee on the Rights of
the Child: Belgium” of 13 June 2002, the Committee on the
Rights of the Child made the following recommendation to the State:
“28. ...
(a) Expedite efforts to establish special reception
centres for unaccompanied minors, with special attention to those who
are victims of trafficking and/or sexual exploitation;
(b) Ensure that the stay in those centres is for the
shortest time possible and that access to education and health is
guaranteed during and after the stay in the reception centres;
(c) Approve as soon as possible the draft law on the
creation of a guardianship service, in order to ensure the
appointment of a guardian for an unaccompanied minor from the
beginning of the asylum process and thereafter as long as necessary,
and make sure that this service is fully independent, allowing it to
take any action it considers to be in the best interests of this
minor;
(d) Ensure unaccompanied minors are informed of their
rights and have access to legal representation in the asylum process;
(e) Improve cooperation and exchange of information
among all the actors involved, including the Aliens Office and other
relevant authorities, police services, tribunals, reception centres
and NGOs;
(f) Ensure that, if family reunification is carried out,
it is done in the best interests of the child;
(g) Expand and improve follow-up of returned
unaccompanied minors.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants complained that the second applicant had been detained and
deported in violation of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Detention of the second applicant
1. The applicants' submissions
The
applicants submitted that the detention of the second applicant, who
was then five years old, for nearly two months in a closed centre for
adults constituted inhuman or degrading treatment prohibited by
Article 3 of the Convention. They explained that Transit Centre no.
127 was a closed centre near Brussels Airport used to detain illegal
immigrants pending their removal from the country. As had been noted
in the Committee on the Rights of the Child's second report on
Belgium dated 7 July 2002, no facilities for children of the
second applicant's age existed in 2002. Accordingly, no arrangements
were in place to attend to the second applicant's needs and the only
assistance she received was from another Congolese minor. Despite all
the assistance given by individual members of staff, the fact
remained that there had been a violation of Article 3 of the
Convention as, at a crucial stage in her development, the second
applicant had been denied freedom of movement, had been unable to
play or express her feelings, and had been held in precarious
conditions in an adult world where liberty was restricted. The
Government had had other, more appropriate, options at their
disposal. They could, for instance, have placed the second applicant
with the Aid to Young People Department. The applicants noted,
lastly, that the second applicant had suffered from sleeping
disorders after her release from detention.
2. The Government's submissions
The
Government argued that in order to determine whether the second
applicant's detention for two months in a closed centre –
Transit Centre no. 127 – was capable of constituting
inhuman or degrading treatment, the facts of the case had to be
looked out.
In
their submission, it had not been possible for the child to be given
permission to enter Belgian territory without any identity papers or
a visa. Nor could she have been allowed to leave with her uncle, as
he had not provided any evidence to show that he was her guardian or
established that he was a relative. At that juncture the Canadian
authorities had not offered to issue a laissez-passer, and indeed
none had been requested by the applicants. Had the first applicant
travelled to Belgium, her daughter's detention and subsequent removal
would, no doubt, have been avoided.
The
chances of finding accommodation in a more suitable centre were
virtually non-existent and, above all, would not have guaranteed the
child's supervision or, therefore, her protection. There had
accordingly been a risk that she would disappear. Furthermore,
although the place of detention was not adapted to the needs of a
five-year-old child, particularly for what turned out to be quite a
lengthy period, the explanation for this lay in the exceptional
circumstances of the case and in the fact that, since situations of
this type were relatively rare at the time, adequate procedures and
structures had yet to be established.
Legislation
had since been introduced in the form of the financial planning Act
(loi-programme) of 24 December 2002, which provided for the
appointment of a guardian and for the minor to be taken into care. In
addition, on 19 May 2006, the Cabinet had approved in principle a
measure intended to prohibit the detention in a closed centre of
unaccompanied foreign minors arrested at the border.
The
first applicant had been informed of her daughter's situation
straightaway and had been allowed to speak with her on the telephone
for as long as she wished. The staff at the centre had gone to
considerable lengths to look after the second applicant, as Mr Ma.
had noted in his letter of 23 August 2002. Moreover, in his
report of 23 November 2004, the director of Transit Centre no. 127
had noted that the medical and administrative staff at the centre had
been attentive to her needs, that she had had daily telephone contact
with her mother and uncle and had been integrated into the family
life of children of her own age by the children's mothers. In the
light of all this, it was not so much the second applicant's
detention in the instant case that was in issue but the very
principle of the detention of minors and the fact that the Belgian
authorities had rejected the proposed alternative accommodation.
As
to the length of the detention, the explanation for this lay in the
lengths to which the authorities had gone to clarify the second
applicant's situation, a particular example of this being the care
with which the Commissioner-General for Refugees and Stateless
Persons had examined her expedited appeal. Various requests for
information had been made by the Aliens Office to various persons and
bodies, including international organisations and private individuals
in Canada and the Democratic Republic of Congo, in order to find the
most appropriate solution. Another contributory factor had been the
unceasing efforts the Belgian authorities had made to find a suitable
home for the second applicant in her country of origin following the
dismissal of her application for asylum.
The
Government further alleged that areas of uncertainty remained in the
case. For example, why was it no application for a visa was made at
the time to enable the second applicant to continue her journey to
Canada and what had become of the second applicant's father.
There
were also question marks over the first applicant's conduct: she had
not mentioned the existence of her two children in her application
for asylum in Canada or sought a visa to enable her to travel to
Belgium as a matter of urgency, firstly to be with her daughter and
then to take her back to Canada. The Government considered that both
the first applicant and the family had failed to co-operate with the
competent authorities and had brought the situation of which they now
complained upon themselves by treating certain matters as a “fait
accompli”. They argued that the first applicant could not
therefore hold the Belgian State accountable for the two months
during which it had looked after the second applicant as well as they
were able.
3. The Court's assessment
Article
3 makes no provision for exceptions. This absolute prohibition of
torture and of inhuman or degrading treatment or punishment under the
terms of the Convention shows that Article 3 enshrines one of the
fundamental values of the democratic societies making up the Council
of Europe (Soering v. the United Kingdom, judgment of 7 July
1989, Series A no. 161, § 78).
In
order to fall within the scope of Article 3, the ill-treatment must
attain a minimum level of severity, the assessment of which depends
on all the circumstances of the case, such as the duration of the
treatment, its physical or mental effects and, in some cases, the
sex, age and state of health of the victim (see, among other
authorities, Raninen v. Finland, judgment of 16 December
1997, Reports of Judgments and Decisions, 1997 VIII, §
55).
In
order to carry out this assessment, regard must be had to “the
fact that the Convention is a 'living instrument which must be
interpreted in the light of present-day conditions' [and] that the
increasingly high standard being required in the area of the
protection of human rights and fundamental liberties correspondingly
and inevitably requires greater firmness in assessing breaches of the
fundamental values of democratic societies” (mutatis
mutandis, Selmouni v. France, judgment of 28 July
1999 [GC], § 101, Reports 1999-V).
The
Court will first examine the Article 3 complaint of the second
applicant – she being the person who was detained –
before proceeding to consider the complaint of her mother (the first
applicant), who also claims that she was a victim of the measure.
(a) The second applicant
The
Court notes that second applicant, who was only five years old, was
held in the same conditions as adults. She was detained in a centre
that had initially been designed for adults, even though she was
unaccompanied by her parents and no one had been assigned to look
after her. No measures were taken to ensure that she received proper
counselling and educational assistance from qualified personnel
special mandated for that purpose. That situation lasted for two
months. It is further noted that the respondent Government have
acknowledged that the place of detention was not adapted to her needs
and that there were no adequate structures in place at the time.
A
five-year-old child is quite clearly dependent on adults and has no
ability to look after itself so that, when separated from its parents
and left to its own devices, it will be totally disoriented.
The
fact that the second applicant received legal assistance, had daily
telephone contact with her mother or uncle and that staff and
residents at the centre did their best for her cannot be regarded as
sufficient to meet all her needs as a five-year-old child. The Court
further considers that the uncoordinated attention she received was
far from adequate.
It
reiterates that the obligation on High Contracting Parties under
Article 1 of the Convention to secure to everyone within their
jurisdiction the rights and freedoms defined in the Convention, taken
in conjunction with Article 3, requires States to take measures
designed to ensure that individuals within their jurisdiction are not
subjected to torture or inhuman or degrading treatment, including
such ill-treatment administered by private individuals (see, mutatis
mutandis, Z and Others v. the United Kingdom, judgment of
10 May 2001 [GC], ECHR 2001-V § 73; and A. v. the United
Kingdom, judgment of 23 September 1998, Reports 1998-VI,
p. 2699, § 22). Steps should be taken to enable effective
protection to be provided, particularly to children and other
vulnerable members of society, and should include reasonable measures
to prevent ill-treatment of which the authorities have or ought to
have knowledge (see Osman v. the United Kingdom, judgment
of 28 October 1998, Reports 1998-VIII, pp. 3159 3160,
§ 116).
In
this connection, the Court must examine whether or not the impugned
regulations and practices, and in particular the manner in which they
were implemented in the instant case, were defective to the point of
constituting a violation of the respondent State's positive
obligations under Article 3 of the Convention.
The
second applicant's position was characterised by her very young age,
the fact that she was an illegal immigrant in a foreign land and the
fact that she was unaccompanied by her family from whom she had
become separated so that she was effectively left to her own devices.
She was thus in an extremely vulnerable situation. In view of the
absolute nature of the protection afforded by Article 3 of the
Convention, it is important to bear in mind that this is the decisive
factor and it takes precedence over considerations relating to the
second applicant's status as an illegal immigrant. She therefore
indisputably came within the class of highly vulnerable members of
society to whom the Belgian State owed a duty to take adequate
measures to provide care and protection as part of its positive
obligations under Article 3 of the Convention.
The
Court observes that, whereas under the general law minors came within
the jurisdiction of the youth courts, there was a legal void at the
time in respect of unaccompanied foreign minors. The respondent
Government accepted that the prospects of finding accommodation in a
more suitable centre were virtually non-existent and that such
centres as did exist did not have facilities for the child's
supervision or, therefore, protection. Furthermore, there was no
statutory basis on which the courts could review the conditions under
which minors were held or require the authorities to provide legal,
humanitarian and social assistance where necessary (see, mutatis
mutandis, Amuur v. France, judgment of 25 June 1996,
Reports 1996-III, § 53). The only available remedy was an
application to the chambre du conseil under section 71 of the
aforementioned Act. In such cases, the question before the chambre
du conseil was whether the detention was lawful, not whether it
was appropriate.
Following
an application by the second applicant's lawyer on 9 October
2002, the chambre du conseil ruled on 16 October 2002 that the
second applicant's detention was unlawful under the Convention on the
Rights of the Child and ordered her immediate release. It expressly
found that it had no jurisdiction to examine the appropriateness of
detention or the conditions in which she was held, or to modify the
regime and order alternative arrangements.
Moreover,
prior to applying to the chambre du conseil the second
applicant's lawyer had referred the matter to the Aliens Office on
26 September 2002 when, because of her isolation and the risks
of psychological damage, he requested her placement with foster
parents or, failing that, in a specialised institution. The
inescapable conclusion must therefore be that the domestic
authorities failed to take action to avoid or remedy the alleged
shortcomings, despite being expressly informed of the position.
Furthermore,
in his decision of 25 September 2002, the Commissioner-General for
Refugees and Stateless Persons had drawn the Minister of the
Interior's attention to the fact that the second applicant was a
minor and entitled to be reunited with her family by virtue of
Article 10 of the Convention on the Rights of the Child. On 13 June
2002 the Committee on the Rights of the Child had recommended that
the Belgian State should expedite efforts to establish special
reception centres and that stays in such centres should be for the
shortest time possible.
The
Court considers that the measures taken by the Belgian authorities –
informing the first applicant of the position, giving her a telephone
number where she could reach her daughter, appointing a lawyer to
assist the second applicant and liaising with the Canadian
authorities and the Belgian Embassy in Kinshasa – were far from
sufficient to fulfil the Belgian State's obligation to provide care
for the second applicant. The State had, moreover, had an array of
means at its disposal. The Court is in no doubt that the second
applicant's detention in the conditions described above caused her
considerable distress. Nor could the authorities who ordered her
detention have failed to be aware of the serious psychological
effects it would have on her. In the Court's view, the second
applicant's detention in such conditions demonstrated a lack of
humanity to such a degree that it amounted to inhuman treatment.
There
has therefore been a violation of Article 3 of the Convention.
(b) The first applicant
The
Court reiterates, firstly, that Article 3 affords absolute
protection, irrespective of any reprehensible conduct on the part of
the applicant (see, mutatis mutandis, Soering,
judgment cited above, § 88). Accordingly, it cannot accept
the Belgian Government's argument that the conduct of the first
applicant was such as to prevent the Court from finding a violation.
The
Court reiterates, secondly, that the issue whether a parent qualifies
as a “victim” of the ill-treatment of his or her child
will depend on the existence of special factors which gives the
applicant's suffering a dimension and character distinct from the
emotional distress which may be regarded as inevitably caused to
relatives of a victim of a serious human rights violation. Relevant
elements will include the proximity of the family tie – in that
context, a certain weight will attach to the parent-child bond –,
the particular circumstances of the relationship and the way in which
the authorities responded to the parent's enquiries. The essence of
such a violation lies in the authorities' reactions and attitudes to
the situation when it is brought to their attention. It is especially
in respect of this latter factor that a parent may claim directly to
be a victim of the authorities' conduct (see, mutatis mutandis,
Çakıcı v. Turkey [GC], no. 23657/94, ECHR
1999-IV, § 98; and Hamiyet Kaplan and Others v. Turkey,
no. 36749/97, § 67, 13 September 2005).
As
regards the Belgian authorities' conduct towards the first applicant,
it is apparent from the material before the Court that the only
action the Belgian authorities took was to inform her that her
daughter had been detained and to provide her with a telephone number
where she could be reached. The Court has no doubt that, as a mother,
the first applicant suffered deep distress and anxiety as a result of
her daughter's detention. In view of the circumstances of the case,
the Court concludes that the level of severity required for a
violation of Article 3 of the Convention was attained in the present
case.
There
has therefore been a violation of Article 3 of the Convention.
B. The second applicant's deportation
1. The applicants' submissions
The
applicants also alleged that the Belgian authorities had engaged in
treatment proscribed by Article 3 of the Convention in that they had
deported the second applicant without awaiting the Canadian
authorities' decision on their application for family reunification
and had failed to ensure that she would be met by a member of the
family or, at least, a Belgian official. They said that the second
applicant, who was only five years old at the time, had travelled
without anyone being assigned to accompany her and had been forced to
wait at Kinshasa Airport from 5 p.m. until approximately 11 p.m.,
when Ms T. arrived to collect her. In their submission, deporting the
child of a person with recognised refugee status was contrary to the
fundamental rule that asylum seekers should not be expelled. There
was, furthermore, a danger in such cases that the authorities in the
country of origin would use the child's presence there to compel the
refugee to return or even that they would seek to exact revenge on
the child. The applicants added that the Belgian Government had been
aware that neither B., who was a student, nor any other member of the
family was in a position to look after the second applicant. In their
submission, their case had to be distinguished from the case of Nsona
v. the Netherlands (judgment of 28 November 1996, Reports
1996 V), in which a nine-year-old girl had been deported in
an aircraft belonging to one of her father's acquaintances and had
been accompanied by a (sufficiently) close relative. The present case
was different in that the second applicant had travelled alone. It
was not enough to say that an air hostess had been assigned to look
after her by the airline. Furthermore, the complications in Nsona
had come about following the intervention of counsel for the
applicant in that case, which was not the position in the present
case. The fact that the Belgian authorities had been aware of the
first applicant's refugee status in Canada and that the second
applicant had ultimately returned to Europe after five days indicated
that the decision to deport her was disproportionate. Lastly, as the
applicants had already stated with regard to the second applicant's
detention, the Government had had other means at their disposal.
2. The Government's submissions
The
Government submitted that in the absence of papers authorising the
second applicant to travel and to enter the country, the Belgian
authorities had had no reason not to deport her. In addition, the
first applicant had at no stage established that she was the child's
mother and the Belgian authorities had managed to establish contact
with other members of her family. In those circumstances, they had
acted properly in sending the child back to the family. The
Government said that removal had been necessary and that there had
been a legal basis for it, so that the arguments had to be confined
to the conditions in which the deportation had taken place.
They
observed that the applicants had not alleged that the second
applicant was at risk of treatment proscribed by Article 3 if she
returned to Kinshasa; the applicants' argument was that, on account
of her age, deportation itself constituted proscribed treatment. In
the Government's submission, the arrangements made for the second
applicant's removal were comparable to those in the Nsona v. the
Netherlands case and, indeed, in certain respects were more
favourable than in that case. Although the trauma suffered by the
child and the lack of anyone to meet her at Kinshasa Airport were
regrettable, there had been no problems with the conditions in which
the second applicant travelled as she had been accompanied all the
way to the airport by a social worker and there placed in the care of
an air hostess who had been assigned to accompany her by the airline,
as its report dated 25 October 2002 indicated. The Belgian
authorities had, moreover, received assurances that members of the
second applicant's family would collect her at the airport. Nor were
the authorities responsible for the fact that her uncle, B., had
reneged on his promise at the last minute; in any event, his failure
to turn up had been of no consequence because the child was met by a
representative of the Congolese authorities, who put her up for the
night. The Government considered that primary responsibility for the
additional inconvenience that was caused to the child lay with B.
Nevertheless, they acknowledged that the deportation was not executed
with proper vigilance. In particular, they admitted that they should
have anticipated the possibility that B. might not turn up and
regretted not having done so. The Government nonetheless considered
that the child's family had no grounds for complaint in that respect,
as it was the family, and in particular the first applicant, who were
responsible for the situation.
3. The Court's assessment
The
Court will begin by examining the complaint concerning the second
applicant's rights and would state at the outset that it is struck by
the failure to provide adequate preparation, supervision and
safeguards for her deportation.
For
example, the Belgian authorities stood by their decision to proceed
with the second applicant's deportation on 17 October 2002 despite
two new factual developments, these being the chambre du conseil's
decision of the previous day to order her immediate release on the
grounds that her detention was unlawful and the fact that the HCR had
informed the authorities that the first applicant had acquired
refugee status in Canada.
As
regards the conditions in which the second applicants travelled, the
Court notes that although an assistant from the centre accompanied
her as far as customs, the second applicant had to travel alone as
the Belgian authorities had not assigned an adult to accompany her.
As to
the arrangements in her country of origin, the Belgian authorities
merely informed her uncle B., who was the only relative they had
managed to trace in Kinshasa, of her arrival, but did not expressly
require his presence or make sure that he would be at the airport.
The Court cannot, therefore, accept the Government's submission that
they were not responsible for the situation or for the fact that B.
did not to turn up. The Belgian authorities had not considered or
made alternative arrangements for the second applicant's arrival and
it was only after several hours' wait at the airport that a solution
– and a wholly improvised one at that – was found by the
Congolese authorities.
In
the Court's view, this shows that the Belgian authorities did not
seek to ensure that the second applicant would be properly looked
after or have regard to the real situation she was likely to
encounter on her return to her country of origin. This view is not
altered by the fact that the airline decided to assign an air hostess
– an ordinary member of the flight crew – to look after
her for the duration of the flight or that the second applicant was
ultimately taken into the home of a representative of the Congolese
authorities after an almost six-hour wait at the airport.
The
Court considers that the second applicant's deportation in such
conditions was bound to cause her extreme anxiety and demonstrated
such a total lack of humanity towards someone of her age and in her
situation as an unaccompanied minor as to amount to inhuman
treatment. The Court also finds that by deporting the second
applicant, the Belgian State violated its positive obligations to
take requisite measures and precautions.
As
regards the first applicant and in the light of the case-law it has
cited in relation to the previous complaint (see paragraph 61 above),
the Court notes in particular that the Belgian authorities did not
trouble to advise her of her daughter's deportation so that she only
became aware of it when she tried to reach her at the closed centre
on the telephone after the deportation had already taken place. The
Court has no doubt that this caused the first applicant deep anxiety.
The disregard such conduct showed for her feelings and the evidence
in the case file lead the Court to find that the requisite threshold
of severity has been attained in the present case.
It
follows from the foregoing that there has been a violation of both
applicants' rights under Article 3 of the Convention on account of
the second applicant's deportation.
II. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION
The
applicants complained that the second applicant's detention and
deportation also violated Article 8 of the Convention, which reads:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The second applicant's detention
1. The applicants' submissions
The
applicants submitted that the second applicant's detention also
violated Article 8 of the Convention as it constituted
disproportionate interference with their right to respect for their
private and family life. The Belgian State was or should have been
aware of the first applicant's refugee status in Canada because of
the letters it had received from Mr Ma. and the HCR's intervention.
The applicants argued that family reunification was a fundamental
right of refugees and cited, among other authorities, “Recommendation
no. 1327 (1997) on the protection and reinforcement of the human
rights of refugees and asylum-seekers in Europe”. In their
submission, the obligations incumbent on States that were parties to
the Convention on the Rights of the Child signed in New York on 20
November 1989 (and in particular, Articles 3 and 10 thereof) could be
used as a guide when assessing whether the interference with the
child's family life had been necessary. The reasons given by the
Government in no way justified the interference, which had consisted
of the second applicant's detention notwithstanding a proposal by her
lawyer for her to be placed with foster parents. Her illegal entry
was not a reason for denying her fundamental rights; nor did her
inability to travel to the Netherlands prevent her placement with
foster parents. Furthermore, although family reunification in Canada
would have taken some time, there had been no need to keep the child
in a closed centre. Nor could the fact that members of her family had
been located in Kinshasa serve to justify her detention since she was
the daughter of a person with recognised refugee status and her
return to her country of origin placed her safety and even her life
at risk. The fact that the first applicant had been granted refugee
status in Canada should, furthermore, have alerted the Belgian
authorities to the need to act with great caution. Lastly, while the
applicants accepted that the first applicant had been wrong to ask
her brother to bring her daughter to Europe, they said that she had
done so in the belief that it was in her daughter's best interests.
2. The Government's submissions
The
Government pointed out that, while Article 8 did in principle apply
to cases concerning aliens, an alien's family life had to be
reconciled with the State's prerogatives in immigration cases. The
Court had consistently affirmed in its case-law the principle that
the State Parties to the Convention were entitled to control the
entry of non-nationals into their territory and that that
prerogative, which could result in interference with the alien's
family life, had to be exercised in conformity with the second
paragraph of Article 8. In the Government's submission, keeping an
alien in detention after he or she had attempted to enter the
national territory without complying with the relevant conditions and
had asked to be given refugee status while the application for asylum
was considered, could not in itself be considered to constitute a
violation of his or her family life. Detention enabled the State to
issue a deportation order that would be enforceable in practice in
the event of the request for asylum being turned down. The Government
accepted that it was legitimate to enquire whether these principles
ought to be moderated when the immigrant concerned was a young child.
However, they nevertheless considered that in the instant case there
had been no infringement of the second applicant's family life for
several reasons:
(i) on
her arrival at the airport, her uncle had fraudulently tried to pass
her off as his daughter;
(ii) no
members of the family lived in Belgium;
(iii) according
to the information that had been provided to the authorities, it
would not have been legally possible for the second applicant to
continue her journey to the Netherlands with her uncle;
(iv) the
first applicant had not made any application for family reunification
at the material time;
(v) certain
members of the family whom it had been possible to locate in Kinshasa
had been contacted personally and duly informed of the second
applicant's arrival in her country of origin; moreover, there was no
doubt that she would be permitted to enter the country;
(vi) the
Belgian authorities were not informed that the first applicant had
been granted refugee status until 18 October 2002, that is to say
until after the deportation order had been executed
The
Government further questioned why between July 2001 and August 2002
the first applicant had not made an application to the Canadian
authorities and/or to the Canadian Embassy in Kinshasa with a view to
arranging for her daughter's lawful immigration, preferring instead
to use an illegal route with her brother's assistance. They said in
conclusion that the second applicant's detention in a closed centre
during the period necessary for the examination of her request for
asylum and her appeal under the expedited procedure and from then
till 17 October 2002 did not amount to interference that was contrary
to the Convention.
3. The Court's assessment
The
Court considers that, by its very essence, the tie between the second
applicant, a minor child, and her mother – the first applicant
– comes within the definition of family life within the meaning
of Article 8 of the Convention (see, among other authorities, Keegan
v. Ireland, judgment of 26 May 1994, Series A no. 290, pp. 17-18,
§ 44; and Hokkanen v. Finland, judgment of 23 September
1994, Series A no. 299-A, pp. 19-20, § 54), especially
considering that in the instant case the first applicant had been
granted refugee status, so that the interruption of family life was
solely a result of her decision to flee her country of origin out of
a genuine fear of persecution within the meaning of the Geneva
Convention of 28 July 1951 on the Status of Refugees. The respondent
Government did not dispute the fact that the relationship between the
applicants constituted family life and, in this connection, the Court
reiterates that the mutual enjoyment by parent and child of each
other's company constitutes a fundamental element of family life
(see, mutatis mutandis, the following judgments: Olsson v.
Sweden (no. 1), 24 March 1988, Series A no. 130, p. 29, §
59; Eriksson v. Sweden, 22 June 1989, Series A no. 156,
p. 24, § 58; and Gnahoré v. France, 19 September
2000, Reports 2000-IX, § 50).
In
the Court's view, the second applicant's detention amounted to
interference with both applicants' rights under Article 8 of the
Convention. Indeed, this was not disputed by the respondent
Government.
The
Court reiterates that an infringement of an individual's right to
respect for his or her private and family life will violate Article 8
unless it is “in accordance with the law”, pursues one or
more of the legitimate aims set out in paragraph 2 and is “necessary
in a democratic society”, in other words, proportionate to the
pursued objectives. The question before the Court is whether the
interference was justified under paragraph 2 of Article 8 of the
Convention.
The
Court observes that the detention was based on section 74-5 of the
Aliens (Entry, Residence, Settlement and Expulsion) Act of
15 December 1980 and was therefore in accordance with the law.
The
second defendant was detained under the authorities' powers to
control the entry and residence of aliens on the territory of the
Belgian State. The decision to detain could have been in the
interests of national security or the economic well-being of the
country or, just as equally, for the prevention of disorder or crime.
The Court therefore concludes that the interference pursued a
legitimate aim for the purposes of the second paragraph of Article 8
of the Convention.
In
order to determine whether the impugned measures were “necessary
in a democratic society”, the Court will examine, in the light
of the case as a whole, whether the detention was necessary in a
democratic society, that is to say whether it was justified by a
pressing social need and, in particular, proportionate to the
legitimate aim pursued (see Amrollahi v. Denmark, no.
56811/00, 11 July 2002, § 33, Boultif v. Switzerland,
no. 54273/00, § 46, ECHR 2001 IX; Adam v. Germany
(dec.), no. 43359/98, 4 October 2001, Mokrani v. France,
no. 52206/00, 15 July 2003, § 26). The Court's task here is
to determine whether the second applicant's detention struck a fair
balance between the competing interests in the case.
The
Convention does not guarantee, as such, any right for an alien to
enter or stay on the territory of the State of which he or she is not
a national (see Moustaquim v. Belgium, judgment of 18 February
1991, Series A no. 193, p. 19, § 43, and Beldjoudi
v. France, judgment of 26 March 1992, Series A no. 234-A, p. 27,
§ 74). Furthermore, the Contracting States are under a duty to
maintain public order, in particular by exercising their right, as a
matter of well-established international law, to control the entry
and residence of aliens. In this connection, detention in centres
used for aliens awaiting deportation will be acceptable only where it
is intended to enable the States to combat illegal immigration while
at the same time complying with their international obligations,
including those arising under the Convention for the Rights of the
Child signed in New York in 1989 (and by
Belgium in 1991).
Furthermore,
the States' interest in foiling attempts to circumvent immigration
rules must not deprive aliens of the protection afforded by these
conventions or deprive foreign minors, especially if unaccompanied,
of the protection their status warrants. The protection of
fundamental rights and the constraints imposed by a State's
immigration policy must therefore be reconciled.
The
Court observes that the effect of the second applicant's detention
was to separate her from the member of her family in whose care she
had been placed and who was responsible for her welfare, with the
result that she became an unaccompanied foreign minor, a category in
respect of which there was a legal void at the time. Her detention
significantly delayed the applicants' reunification. The Court
further notes that, far from assisting her reunification with her
mother, the authorities' actions in fact hindered it. Having been
informed at the outset that the first applicant was in Canada, the
Belgian authorities should have made detailed enquiries of their
Canadian counterparts in order to clarify the position and bring
about the reunification of mother and daughter. The Court considers
that that duty became more pressing from 16 October 2002 onwards,
that being the date when the Belgian authorities received the fax
from the HCR contradicting the information they had previously held.
The
Court considers that the complaint can also be analysed from the
perspective of the second applicant's private life. It has often said
that the expression “private life” is broad and does not
lend itself to exhaustive definition. Thus, private life, in the
Court's view, includes a person's physical and mental integrity. The
guarantee afforded by Article 8 of the Convention is primarily
intended to ensure the development, without outside interference, of
the personality of each individual in his relations with other human
beings (see, mutatis mutandis, Niemietz v. Germany,
judgment of 16 December 1992, Series A no. 251-B, p. 33, §
29; Botta v. Italy, judgment of 24 February 1998, Reports
1998-I, p. 422, § 32; Von Hannover v. Germany,
judgment of 24 June 2004, no. 59320/00, § 50, ECHR
2004-VI).
In
this connection, in the absence of any risk of the second applicant's
seeking to evade the supervision of the Belgian authorities, her
detention in a closed centre for adults was unnecessary. Other
measures could have been taken that would have been more conducive to
the higher interest of the child guaranteed by Article 3 of the
Convention on the Rights of the Child. These included her placement
in a specialised centre or with foster parents. Indeed, these
alternatives had in fact been proposed by the second applicant's
counsel.
The
Court considers that, in view of her young age, the second applicant
cannot bear any responsibility for her uncle's attempts to deceive
the Belgian authorities by passing her off as his daughter. The same
applies to the conduct of her mother and family. Further, although
the first applicant's conduct was questionable and does not appear to
have been entirely fault-free, it was not such as to deprive her of
victim status in the instant case.
Ultimately,
since the second applicant was an unaccompanied foreign minor, the
Belgian State was under an obligation to facilitate the family's
reunification (mutatis mutandis, see the following judgments:
Johansen v. Norway, 7 August 1996, Reports 1996 III,
§ 78; Eriksson v. Sweden, 22 June 1989, Series A no. 156,
§ 71; Ignaccolo-Zenide v. Romania,
no. 31679/96, § 94, Reports 2000-I; and Nuutinen v.
Finland, 27 June 2000, no. 32842/96, § 127, ECHR
2000 VIII).
In
the light of all the foregoing considerations, the Court finds that
there has been disproportionate interference with the applicants'
right to respect for their family life.
There
has therefore been a violation of Article 8 of the Convention.
B. The second applicant's deportation
1. The applicants' submissions
The
applicants relied on the arguments they had used with respect to the
complaint under Article 3 of the Convention.
2. The Government's submissions
The
Government argued that it had to be remembered that the first
applicant had sought to deceive the Belgian authorities with her
brother's help. Her brother had clearly stated to the Belgian
authorities that it was not his intention to look after his niece, as
he did not wish to have problems with the Dutch authorities. The
first applicant could have used her refugee papers or her Congolese
passport, which had been issued on 27 September 2002, to travel.
Moreover, her request to the Canadian authorities for asylum did not
extend to the second applicant and between July 2001 and August 2002
she had not taken any action with a view to family reunification. The
inquiries that had been made had revealed that she had members of her
family living in Kinshasa. Lastly, the second applicant's return to
her country of origin had been organised in such a way that a
Congolese official representative had been there to put her up when
her family failed to meet her at Kinshasa.
3. The Court's assessment
The
Court does not consider it necessary to recapitulate the
circumstances in which the deportation took place, as these have
already been described above (see paragraphs 66 et seq.). It
reiterates that the Belgian State had positive obligations in the
instant case, including an obligation to take care of the second
applicant and to facilitate the applicants' reunification (see
paragraph 85 above). By deporting the second applicant, the
authorities did not assist their reunification (see paragraph 82
above). Nor did they ensure that the second applicant would in fact
be looked after in Kinshasa (see paragraph 67 above). In these
circumstances, the Court considers that the Belgian State failed to
comply with its positive obligations and interfered with the
applicants' rights to respect for their family life to a
disproportionate degree.
There
has therefore been a violation of both applicants' rights under
Article 8 of the Convention as a result of the second applicant's
deportation.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION AS A
RESULT OF THE SECOND APPLICANT'S DETENTION
The
applicants also argued that the second applicant's detention violated
Article 5 § 1 (d) of the Convention, which provides:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law: ...
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
...”
A. The applicants' submissions
In
the applicants' submission, the second applicant's detention did not
serve the purpose set out in paragraph (d) of Article 5, which was
the only provision that permitted the detention of a minor. The sole
aim of the detention in the present case had been to prevent the
second applicant from entering Belgium and to facilitate her
subsequent deportation to her country of origin. The applicants
argued in the alternative that, were the Court to consider that the
word “person” referred to in Article 5 § 1 (f) of
the Convention included minors, the child's age and minority would
nevertheless remain an important factor in assessing the lawfulness
of the detention. In other words, when a minor was detained, a
stricter review would be required, in accordance with the Convention
on the Rights of the Child of 20 November 1989. In such cases, the
Government would have to be able to prove that the detention was in
the child's interest. In the second applicant's case, there had been
no need for the detention. Alternatives had been available such as
permitting her to enter the country and stay with foster parents
under the supervision of the Aid to Younger People in the French
Community Department. Furthermore, the second applicant's deportation
could not be regarded as release from detention and so was in breach
of the chambre du conseil's order of 16 October 2002. The
applicants added that Crown counsel had, in fact, had only one aim
when he decided to defer his appeal against the order for the second
applicant's release and that was to facilitate her removal by the
Belgian Government. They said that proof of this was to be found in
the letter from the Aliens Office dated 15 October 2002. It followed
that the second applicant's detention subsequent to the order of 16
October 2002 was unlawful, its sole purpose being to allow her
deportation before the order for her release became final.
B. The Government's submissions
The
basis for the detention of a foreign minor in Belgian law was to be
found in section 74-5 of the Act of 15 December 1980, which made no
distinction between aliens who had reached their majority and those
who were still minors. There could be no one single answer to the
question whether the detention of a foreign minor was lawful: the
minor's age and the particular difficulties with which the Belgian
authorities were confronted were essential criteria for deciding on
the best solution for the child. In any event, it would be hazardous
to work on the premise that if a child was very young, it could “as
it were serve as a safe conduct for third parties”, which was
the situation that was in danger of arising if a rule was established
prohibiting the detention of minors. The detention of a minor was,
furthermore, consistent with the provisions of Article 5 § 1 (f)
of the Convention. As regards more specifically the detention
subsequent to the chambre du conseil's order of 16 October
2002, while it was true that that court had ruled that the second
applicant's continued detention in Transit Centre no. 127 was
unlawful and had ordered her release, Crown counsel had a right under
section 72 of the Act of 15 December 1980 to appeal within
twenty-four hours of the date of the decision. It was only on the
expiration of that period that the order became final (in accordance
with section 73 of the Act) and the alien had to be released. In the
present case, the order of 16 October 2002 had not become final until
midnight on 17 October 2002 and it was only at that point, once
the time-limit for appealing had expired, that the second applicant
had to be released. The Government said that it followed from this
that the second applicant's continued detention until 17 October 2002
– when she was taken to the airport to be put on the plane to
Kinshasa – complied with the provisions of domestic law. The
second applicant could not have been released because Crown counsel
had the right to reserve his decision whether or not to appeal. While
it would have been possible to find someone to look after the child
for twenty-four hours, this would not have been without difficulty.
In the Government's submission, it was not possible to say that the
Belgian authorities' conduct was dictated by the success of the
application for release as the flight had been booked a week
previously. Lastly, it was quite clear that the detention ended when
the deportation order was executed.
C. The Court's assessment
The
Court notes at the outset that the first applicant has not been
detained and accordingly cannot claim personally to have been a
victim of a violation of Article 5 of the Convention.
In
so far as this complaint concerns the second applicant, the Court
reiterates that the Contracting States are entitled to control the
entry and residence of non-nationals on their territory at their
discretion, but stresses that this right must be exercised in
conformity with the provisions of the Convention, including Article
5. In proclaiming the right to liberty, paragraph 1 of Article 5
contemplates the physical liberty of the person and its aim is to
ensure that no one should be dispossessed of this liberty in an
arbitrary fashion (see, mutatis mutandis, Amuur v.
France, judgment of 25 June 1996, Reports 1996 III,
§ 42). The list of exceptions to the right to liberty secured in
Article 5 § 1 is an exhaustive one and only a narrow
interpretation of those exceptions is consistent with the aim of that
provision (see, mutatis mutandis, K. F. v.
Germany, judgment of 27 November 1997, Reports 1997 VII,
p. 2975, § 70; Čonka v. Belgium, judgment of 5
February 2000, ECHR 2002-I, § 42; D.G. v. Ireland,
judgment of 16 May 2002, ECHR 2002-III, § 74). Detention must be
lawful both in domestic and Convention terms: the Convention lays
down an obligation to comply with the substantive and procedural
rules of national law and requires that any deprivation of liberty
should be in keeping with the purpose of Article 5 which is to
protect an individual from arbitrariness (see the following
judgments: Winterwerp v. the Netherlands, 24 October 1979,
Series A no. 33, pp. 17-19, §§ 39 and 45; Bozano v.
France, 18 December 1986, Series A no. 111, p. 23, §
54; and Weeks v. the United Kingdom, 2 March 1987, Series
A no. 114, p. 23, § 42).
In
order to ascertain whether a deprivation of liberty has complied with
the principle of compatibility with domestic law, the Court must
assess not only the legislation in force in the field under
consideration, but also the quality of the other legal rules
applicable to the persons concerned. Quality in this sense implies
that a national law authorising deprivation of liberty must be
sufficiently accessible and precise, in order to avoid all risk of
arbitrariness.
As
regards the compatibility of the detention with domestic law in the
instant case, the Court considers that two periods can be
distinguished, these being the period prior to the order of 16
October 2002 in which the chambre du conseil declared the
second applicant's detention unlawful and the period after that date.
It observes that the Government have not sought to argue that the
chambre du conseil's ruling that the detention was illegal
affected the second applicant's victim status. In any event, it notes
that the ruling did not bring the detention to an end. In the Court's
view, the finding by the domestic court that the first period of
detention was unlawful raises serious doubts as to the lawfulness of
the second period.
The
second applicant was placed in detention pursuant to section 74-5 of
the Aliens (Entry, Residence, Settlement and Expulsion) Act of
15 December 1980, initially pending a decision on her
application for asylum and subsequently pending her deportation. At
that time, the Act did not contain any provisions specific to minors.
Thus, the fact that the alien concerned was a minor was of no
relevance to the application of the provisions governing his or her
detention.
The
Court does not agree with the second applicant's submission that
paragraph (d) of Article 5 § 1 of the Convention is the only
provision which permits the detention of a minor. It in fact contains
a specific, but not exhaustive, example of circumstances in which
minors might be detained, namely for the purpose of their educational
supervision or for the purpose of bringing them before the competent
legal authority to decide.
In
the instant case, the ground for the second applicant's detention was
that she had entered the country illegally as she did not have the
necessary documents. Her detention therefore came within paragraph
(f) of Article 5 § 1 of the Convention which permits “the
lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom
action is being taken with a view to deportation or extradition”.
However,
the fact that the second applicant's detention came within paragraph
(f) of Article 5 § 1 does not necessarily mean that it was
lawful within the meaning of this provision, as the Court's case-law
requires that there must be some relationship between the ground of
permitted deprivation of liberty relied on and the place and
conditions of detention (see, mutatis mutandis, Aerts v.
Belgium, judgment of 30 July 1998, Reports 1998-V,
pp. 1961-1962, § 46, and other references referred to therein).
The
Court notes that the second applicant was detained in a closed centre
intended for illegal immigrants in the same conditions as adults;
these conditions were consequently not adapted to the position of
extreme vulnerability in which she found herself as a result of her
position as an unaccompanied foreign minor.
In
these circumstances, the Court considers that the Belgian legal
system at the time and as it functioned in this instance did not
sufficiently protect the second applicant's right to liberty.
There
has therefore been a violation of the second applicant's rights under
Article 5 § 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 AND ARTICLE 13
OF THE CONVENTION
Relying
on Articles 5 § 4 and 13 of the Convention, the applicants
maintained that the Belgian State had rendered the second applicant's
appeal futile and ineffective by proceeding to deport her the day
after her release was ordered, in defiance of that order. Article 5 §
4 provides:
Article 5 § 4
“4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful.”
Article
13 reads as follows:
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The applicants' submissions
The
applicants alleged that prolonging the second applicant's detention
and then proceeding to deport her following an order by the chambre
du conseil for her immediate release was contrary to the
Convention and rendered the remedy ineffective. In their submission,
even assuming that detention could be prolonged in order to enable
Crown counsel to appeal against the order within twenty-four hours,
detention could only be used for that purpose and not to deport her
within that period. Furthermore, once the alien had been deported,
the powers of review of the chambre du conseil and the
indictments division became redundant, even though deportation did
not amount to release. They concluded from the above that they had
not had an effective remedy in respect of the second applicant's
detention.
B. The Government's submissions
The
Government maintained that the right of appeal to the chambre du
conseil was an effective remedy within the meaning of the
Convention. The chambre du conseil's review concerned both the
detention and the deportation order on which it was based. Referring
specifically to the detention subsequent to the chambre du
conseil's order of 16 October 2002, the Government argued that
their observations on the issue of the lawfulness of the second
applicant's detention showed that its extension until 17 October
2002 was lawful. The second applicant could not have been released
because Crown counsel had the right to reserve his decision whether
or not to appeal. While it would have been possible to find someone
to look after the child for twenty-four hours, this would not have
been without difficulty. In the Government's submission, it was not
possible to say that the Belgian authorities' conduct was dictated by
the success of the application for release as the flight had been
booked a week previously. Lastly, it was quite clear that the
detention ended when the deportation order was executed.
C. The Court's assessment
The
Court has already found that since the first applicant was not
detained, she could not personally claim to have been a victim of a
violation of Article 5 of the Convention (see paragraph 95 above).
In
so far as this complaint is also made by the second applicant, the
Court refers firstly to its case-law holding that a complaint under
Article 13 will be absorbed by a complaint under Article 5 § 4
since the requirements of Article 13 are less strict than those of
Article 5 § 4, which must be regarded as the lex specialis
for Article 5 grievances (Chahal v. the United Kingdom [GC],
judgment of 15 November 1996, Reports 1996-V, § 126).
The
Court will therefore examine the complaint solely under Article 5 §
4 of the Convention.
The
purpose of Article 5 § 4 is to assure to persons who are
arrested and detained the right to a judicial supervision of the
lawfulness of the measure to which they are thereby subjected (De
Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971,
Series A no. 12, § 76). The remedies must be made available
during a person's detention with a view to that person obtaining
speedy judicial review of the lawfulness of the detention capable of
leading, where appropriate, to his or her release (see, mutatis
mutandis, Slivenko v. Latvia [GC], no. 48321/99, §
158, ECHR 2003 X).
The
Court notes that the Belgian authorities made arrangements for the
second applicant's deportation on the day after she lodged an
application to the chambre du conseil for release, that is to
say even before it had delivered its decision. Furthermore, the
authorities did not at any stage reconsider the decision to deport
her. The Court also notes that the second applicant was deported on
the scheduled date, notwithstanding the fact that the
twenty-four-hour period for an appeal by Crown counsel, during which
a stay applied, had not expired. Crown counsel deliberately chose to
reserve his decision after receiving a letter from the Belgian
authorities informing him of their view that the second applicant
should remain in detention so that she could be deported to Kinshasa.
Lastly, the respondent Government have acknowledged that the Belgian
authorities' conduct was not dictated by the chambre du conseil's
decision to grant the application for release as her deportation had
been arranged in advance.
Even
assuming that the second applicant's deportation can be equated to
“release” for the purposes of Article 5 § 4 of the
Convention, it follows from the foregoing considerations that there
was no link between her deportation and the exercise of the remedy or
the fact that it was granted.
In
these circumstances, the Court finds that the second applicant's
appeal to the chambre du conseil appears, in the circumstances
of the case, to have been ineffective.
There
has therefore been a violation of Article 5 § 4 of the
Convention. The Court does not consider that any separate examination
of the complaint under Article 13 of the Convention is necessary.
V APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants said that they had sustained non-pecuniary damage which
they put at 10,000 euros (EUR) for the first applicant and EUR 25,000
for the second.
The
Government observed that the first applicant had only requested
family reunification after her daughter's deportation and arrival in
Canada (on 29 October 2002) and said that the first applicant's role
in the case had not been clearly established. Either she had been
unaware that her daughter had left Kinshasa, in which case it had
been on her brother's initiative and it was to him and not the
Government that she should address her grievances, or she herself had
been the instigator, in which case she ought not to be awarded
anything because she had knowingly broken the law. In the light of
these considerations, the Government submitted that a finding of a
violation would afford adequate compensation for the non-pecuniary
damage sustained by the first applicant. They left the issue of the
non-pecuniary damage sustained by the second applicant to the Court's
discretion whilst pointing out that they had had sought to defend her
interests as best they could in what, to say the least, had been a
complex situation.
In
the light of the various violations it has found, including the
violation of both the first and second applicant's rights under
Article 3, which, as has been noted, confers absolute protection
(Soering v. the United Kingdom, judgment of 7 July 1989,
Series A no. 161, § 88), the Court considers the sums claimed by
each of the applicants reasonable and awards them the amounts by way
of just satisfaction.
B. Costs and expenses
The
applicants, who have produced detailed fee notes, claimed EUR
14,177.04 for costs and expenses. This amount was broken down into
EUR 10,500 for the fees and expenses of Mr Vanheule, EUR 3,042 for
the fees and expenses of Mr Ma., EUR 141 for the fees of a Canadian
lawyer, Mr A., in connection with family reunification in Canada in
2002, EUR 35 for the costs of a visa to enable the first applicant to
attend the hearing before the Court and EUR 459.04 in travel
expenses.
The
Government referred to the principles established by the Court and
submitted that it should disallow the fees and expenses of Mr A., and
at least part of the fees and expenses of Mr Ma. It left the
remainder of the claim to the Court's discretion.
According
to the Court's established case-law, costs and expenses will not be
awarded under Article 41 unless it is established that they were
actually and necessarily incurred and were also reasonable as to
quantum. Furthermore, legal costs are only recoverable in so far as
they relate to the violation found (Beyeler v. Italy (just
satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).
The
Court notes that the Government have not contested Mr Vanheule's fees
or the first applicant's claim in respect of the cost of her visa and
travel expenses. It considers that the action taken by Mr Ma. was
intended to prevent the violation it has found to have occurred and
that the amount claimed in respect thereof is reasonable.
Consequently, it awards the applicants the sum of EUR 14,036 for
costs and expenses, less the amount which the Court has granted in
legal aid.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of the
second applicant's rights under Article 3 of the Convention as a
result of her detention;
Holds that there has been a violation of the
first applicant's rights under Article 3 of the Convention as a
result of the second applicant's detention;
Holds that there has been a violation of the
second applicant's rights under Article 3 of the Convention as a
result of her deportation;
Holds that there has been a violation of the
first applicant's rights under Article 3 of the Convention as a
result of the second applicant's deportation;
Holds that there has been a violation of both
applicants' rights under Article 8 of the Convention as a result
of the second applicant's detention;
Holds that there has been a violation of both
applicants' rights under Article 8 of the Convention as a result
of the second applicant's deportation;
Holds that the first applicant cannot claim to
be a “victim” for the purposes of Article 34 of the
Convention of a violation of Article 5 § 1 of the Convention;
Holds that there has been a violation of the
second applicant's rights under Article 5 § 1 of the Convention;
Holds that the first applicant cannot claim to
be a “victim” for the purposes of Article 34 of the
Convention of a violation of Article 5 § 4 of the Convention;
Holds that there has been a violation of the
second applicant's rights under Article 5 § 4 of the Convention;
Holds that no separate examination of the
complaint under Article 13 of the Convention is necessary;
Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 35,000 (thirty-five
thousand euros) in respect of non-pecuniary damage (comprising EUR
10,000 for the first applicant and EUR 25,000 for the second
applicant) and EUR 14,036 (fourteen thousand and thirty-six euros)
for costs and expenses, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants'
claim for just satisfaction.
Done in French, and notified in writing on 12 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
