EHRM, 12-10-2006, nr. 13178/03

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.

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.

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.

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.

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.

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.

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.

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:

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.

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.

The applicants relied on the arguments they had used with respect to the complaint under Article 3 of the Convention.

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.

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.