In the case of Popov v. France,
The European Court of Human
Rights (Fifth Section), sitting as a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Mark Villiger,
Ann Power-Forde,
Ganna Yudkivska,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 13 December 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in two applications
(nos. 39472/07 and 39474/07) against the French Republic lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by Mr Vladimir Popov, his wife Mrs
Yekaterina Yakovenko and their children (“the applicants”) on 10 September 2007.
The applicants were represented by Mr D. Seguin,
a lawyer practising in Angers. The French Government (“the Government”) were
represented by their Agent, Ms E. Belliard, Head of Legal Department, Ministry
of Foreign Affairs.
The applicants alleged, in particular, that their
administrative detention for fifteen days at the Rouen-Oissel detention centre,
pending their removal to Kazakhstan, where they feared they would be
persecuted, had breached Articles 3, 5 and 8 of the Convention.
On 19 October 2009 the President of the Fifth
Section decided to give notice to the Government of the complaints under
Articles 3 and 8 of the Convention. It was also decided that the Chamber would
rule on the admissibility and merits of the applications at the same time (Article 29 § 1).
On 12 May 2011 the President decided to give notice to the Government of the
Article 5 complaint.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants are Mr Vladimir Popov and Mrs
Yekaterina Popov née Yakovenko, nationals of Kazakhstan, born in 1983 and 1982
respectively, and their two minor children, who were born in France
on 7 April 2004 and 17 March 2007.
A. Applicants’ arrival in France
The applicants were born in Kazakhstan.
They were married on 18 June 2002. In the applicants’ submission they were
repeatedly persecuted in their country on account of their Russian origin and
their affiliation to the Russian Orthodox Church. On 9 May 2002 the applicant’s
father was beaten up in the street and required treatment in hospital. The
family filed a complaint and on 5 June 2002 the applicants received, at
their house, a visit from unknown individuals of Kazakh origin who asked them
to withdraw their complaint and threatened them with reprisals. On 15 July 2002
an incendiary device was thrown into their home through the window, starting a
fire, and they were rescued by a neighbour. Following that incident, the
applicant’s father left Kazakhstan on 16 August 2002.
On 29 September 2002, when the second applicant
was returning home, Kazakh police officers stopped her in the street and
questioned her about her father. They took her away and she was beaten up. They
tried to shut her in a vehicle and threatened to rape and kill her. She managed
to escape. The next day, she went to the casualty department in the town of Taraz
to have her injuries recorded and treated. On 2 October 2002 her mother came
home having also been beaten up by Kazakh policemen who were looking for her
husband. After that incident they moved to the country.
On 28 November 2002 the second applicant was
again assaulted. She had gone shopping and did not return until the next day,
covered in bruises and blood. Several days later she lost the child she was
carrying. She then decided to leave the country and entered France
on 15 December 2002 on a two-week visa. After her departure, the
applicant, who had filed a complaint, was assaulted by policemen on 10 March
2003. He spent several months in hiding but the authorities found him,
confiscated his papers, and threatened to kill him if he did not withdraw his
complaint. He too decided to leave the country and joined his wife in France
on 19 June 2003.
B. Asylum applications
The applicants each filed an asylum application with
the French Office for the Protection of Refugees and Stateless Persons (OFPRA)
and obtained residence permits. Their asylum applications were rejected on 20 January
2004 on the ground that their statements were “riddled with inconsistencies”,
followed “a stereotyped pattern” and were “unconvincing”. On 31 May 2005 the
Refugee Appeals Board dismissed their appeals.
On 12 January 2006, having learnt of the murder
of the second applicant’s father, after his return to Kazakhstan,
the applicants requested a fresh examination of their case by the OFPRA. On 19 January
2006 the OFPRA refused to re-examine the case. On 13 September 2006 the Appeals
Board rejected their appeal on the ground that the new fact could not be
regarded as established.
They subsequently applied for recognition as
stateless persons, but the OFPRA rejected their request on 5 April 2007, on the
ground, first, that they had not provided evidence that the Kazakh authorities had
withdrawn their nationality and they could not lose that nationality purely of
their own volition, and, secondly, that they held passports issued by their
national authorities that were valid until 2012. On 25 April 2007 the
applicants appealed against that rejection before the Nantes Administrative
Court. They subsequently dropped their appeal, however, having obtained
refugee status in the meantime (see paragraph 27 below).
C. Refusal to grant residence permits together with an
obligation to leave France and measures of administrative detention
1. First detention measure
On 21 June 2005 the Ardennes prefecture notified
the applicants of its refusal to issue them with residence permits and directed
them to leave the country within one month.
On 22 November 2005 Mr Popov was arrested during
a vehicle check when he was found to be in the country illegally. On the next
day he was issued with a removal order and placed in administrative detention
in Charleville-Mézières. On 25 November 2005 the liberties and detention judge
of the Charleville-Mézières tribunal de grande instance ordered the
extension of his detention for fifteen days. On 9 December 2005 the
detention was extended for a further fifteen days in order to “enable the
enforcement of the removal measure”.
On 28 November 2005 the Châlons-en-Champagne
Administrative Court rejected Mr Popov’s application for the annulment of the
order for his removal to Kazakhstan. On 23 November 2006 the Nancy
Administrative Court of Appeal upheld that judgment, finding that he had not
adduced any conclusive evidence in support of his allegations that he had been
persecuted in his country of origin.
The removal order against the first applicant was
not enforced, however, and he was released from the detention centre, as no
laissez-passer had been issued.
2. Second detention measure
On 11 October 2006 it was decided to place the
applicants in administrative detention but the prefect of the Ardennes ordered
them to reside at a specific address, pursuant to Article L. 513-4 of the Entry
and Residence of Aliens and Right of Asylum Code (CESEDA). Two attempts to
remove the applicants failed as a result of the mobilisation of a support group.
The family was thus released.
On 29 January 2007 the Ardennes prefecture rejected
a new request for the issuance of a residence permit to the applicants. On the
same day, a further decision was delivered imposing on them an obligation to
leave the country. On 31 May 2007 the Châlons-en-Champagne Administrative Court
dismissed their appeal against that decision.
On 25 June 2008 they again applied for residence
permits. As the prefecture failed to respond, the applicants challenged the implicit
rejection decision before the Nantes Administrative Court. However, having
subsequently obtained refugee status, the applicants withdrew their complaint.
3. Disputed measures of administrative detention
(a) First attempt to remove the applicants
On 27 August 2007
the applicants and their children, who were then under six months and three
years, respectively, were apprehended at the home of the applicant’s mother,
who was accommodating them, and taken into police custody. After a long wait, the
Maine-et-Loire prefecture ordered their administrative detention in a hotel in Angers.
On 28 August 2007 the applicants and their children were transferred to
Charles-de-Gaulle airport pending their removal to Kazakhstan. However, the
flight scheduled for the early afternoon was cancelled, without the prefecture having
been informed, and the removal could not therefore be carried out. It was only
in the evening that the applicants and their children were transferred, in a
police van, to the administrative detention centre of Rouen‑Oissel.
That centre, even though it is mentioned on the
list of centres that cater for families, does not have any real leisure or learning
area. Whilst one wing is reserved for families and single women, the atmosphere
there is distressing and stressful, with a lack of privacy and a high level of
tension. Announcements via loud-speakers reverberate throughout the centre and
exacerbate the feeling of stress. The Oissel centre, at the time of the
applicants’ detention, was not equipped with the basic facilities for the
detention of young children (it had metal beds with pointed corners, no cots, just
a few toys in the corner of a room, etc.). The only outdoor area is a courtyard,
concreted over and with wire netting over the top, and the bedroom windows are
covered with a tight grill obscuring the view to the outside ...
The eldest child refused to eat in the centre and showed signs
of anxiety and stress. The parents had to negotiate with the police to recover
their personal belongings, including the milk they had brought for the infant. They
were only able to receive one short visit during their detention, as it was not
easy to gain access to the centre.
On 29 August 2007 the liberties and detention
judge of the Rouen tribunal de grande instance ordered the extension of
the detention measure for fifteen days, after observing that the maintaining of
a family in detention was not in breach of the decree of 30 May 2005 on
administrative detention and holding areas and that their transfer to Rouen‑Oissel
was not vitiated by any defect. The decision also mentioned the loss of the
second applicant’s Kazakh nationality but it was found that this could not justify
release, as the Administrative Court alone had jurisdiction to decide if that
situation would have any consequences. On 30 August 2007 the Rouen Court of
Appeal upheld the extension decision.
(b) Second attempt to remove applicants
Having been held in the detention centre since
28 August 2007, the applicants were again transferred to Roissy
Charles-de-Gaulle airport pending their removal on 11 September 2007, the
flight being scheduled for the early afternoon. It did not go ahead, however. The
applicants were not taken back to the Rouen-Oissel centre until the evening,
without any measure of placement in a detention facility being decided at
Roissy during that period. The prefect then applied to the Rouen liberties and
detention judge to have the applicants’ detention extended for a further
fifteen days, relying solely on the argument that the non-enforcement of the
removal order could be attributed to the applicants themselves (CESEDA, Article
L. 552-7). The applicants complained about the conditions of their detention
and its length, arguing that the authorities had failed to prove that the
length of the measure was strictly necessary.
On the same day the applicants submitted to the
Court, under Rule 39 of the Rules of Court, a request for the suspension
of the removal measure. The Court declined to indicate an interim measure in
response to that request.
On 12 September 2007 the liberties and detention
judge found that there was no evidence to show that the applicants had
deliberately impeded their removal, because the documents concerning the
circumstances of the attempt expressly stated that “no refusal to board the
plane was recorded on 11 September 2007”, and he ordered their release, with
the obligation to leave France being maintained. The prefect appealed against
that decision but without seeking suspensive effect. The applicants were thus
released from the detention centre.
On 14 September 2007 the Rouen Court of Appeal set
aside the liberties and detention judge’s decision and extended the administrative
detention measure for fifteen days, finding that it could be seen from certain
documents in the file that the applicants had indeed prevented their removal (an
e-mail from one of the border police officers mentioning the need for an escort
to carry out the removal the next time, in view of Mrs Popov’s reaction). It
had been found that the next flight with an escort for the applicants’ removal
would not be available before 18 September 2007, and the prefect had not
therefore shown a lack of diligence in organising the departure and limiting
the length of the detention. He had thus been justified in seeking an extension
of the administrative detention pending the organisation of a fresh removal. That
decision was not enforced.
D. Obtaining of refugee status
Before their arrest the applicants had filed a
fresh request to be granted refugee status. In a decision of 6 September
2007 the OFPRA rejected the request on account of the very general nature of
the alleged facts, finding that this, together with the unlikely claim of
blackmail on the part of the Kazakh authorities, precluded the establishment of
their veracity. The OFPRA further stated that as the allegation that the
applicants had lost their nationality had not been corroborated, the request
for re-examination had to be rejected. The applicants appealed against that decision.
On 16 July
2009 the National Asylum Tribunal granted the applicants refugee status,
finding that the enquiries made by the Ardennes prefecture vis-à-vis the
Kazakh authorities, in breach of the confidentiality of asylum applications, had
exposed the applicants to danger in the event of their return to Kazakhstan,
and that their loss of Kazakh nationality, in August 2007 and April 2008
respectively, whilst not per se constituting persecution, did not,
however, preclude the granting of refugee status.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The detention of
aliens pending their removal is mainly governed, in French domestic law, by the
provisions of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA).
...
B. Conditions of detention
...
The practice of detaining children accompanying
their parents is governed by decree no. 2005‑617 of 30 May 2005 concerning
administrative detention and holding areas, which amended the CESEDA provision
as follows:
Article R. 553-3
“Administrative detention centres, which are not entitled to
accommodate over 140 residents, shall provide detained aliens with hotel-type
facilities and collective catering services. They shall comply with the
following standards:
1. A minimum usable surface area of 10 square metres
per detainee consisting of a bedroom and areas freely accessible during opening
hours;
2. Non-mixed shared rooms, housing a maximum of six;
3. Personal hygiene facilities, consisting of
washbasins, showers and toilets, freely accessible and in sufficient numbers,
representing one washroom for every ten detainees;
4. A telephone freely accessible for every fifty
detainees;
5. Premises and facilities necessary for catering,
in compliance with standards laid down in a joint decision of the Agriculture
Minister, the Defence Minister, the Health Minister and the Minister for SMEs,
trade and crafts;
6. For more than forty detainees, a leisure room
separate from the canteen, with a surface area of at least 50 square metres, plus
10 square metres for every fifteen additional detainees;
7. One or more rooms containing medical equipment,
reserved for medical personnel;
8. A room for visits by family members and consular
staff;
9. The room mentioned in Article R. 553-7, reserved
for lawyers;
10. A room assigned to the organisation mentioned in
Article R. 553-13;
11. A room, containing furniture and a telephone, assigned
to the association mentioned in the first paragraph of Article R. 553-14;
12. An area for open-air exercise;
13. A luggage room.
Administrative detention centres catering for families shall
also contain bedrooms that are specially adapted, in particular for childcare.”
Article L. 552-4
“By way of exception, the court may order aliens to reside at a
specific address when they can provide effective guarantees that they will not
abscond, after surrendering to the police or gendarmerie their original
passport and any identity document, in exchange for an acknowledgment of
receipt constituting proof of the person’s identity and indicating the removal
measure that is pending. Where an order to reside at a specific address is made
in respect of an alien who has previously absconded from the execution of an applicable
removal or deportation measure, or has breached a ban on re-entry that has not
been lifted, the order shall give specific reasoning.”
The Court notes that French law precludes the
placement of minors in administrative detention:
Article L. 511-4
“An obligation to leave French territory or a removal measure,
pursuant to the present chapter, cannot be decided in respect of:
1o An alien who is under eighteen years
of age; ...”
Article L. 521-4
“Deportation cannot be ordered in respect of an alien under
eighteen years of age.”
The Cimade, an ecumenical non-governmental
organisation providing assistance to immigrants, in its report “Administrative
detention centres and facilities” (“Centres et locaux de rétention
administrative”), published in 2010, pointed out that even though the law
did not permit the detention of minors, 318 children “accompanying” their parents
had been deprived of their liberty in 2009. Their average age was eight. The
Cimade emphasised that administrative measures of placement in detention could
not be taken against children, so their detention was devoid of legal basis.
As a result, the
administrative detention centres of Lille-Lesquin 2, Coquelles, Lyon,
Rouen-Oissel, Marseille, Metz-Queuleu, Nîmes, Saint-Jacques de la Lande
(Rennes), Perpignan, Hendaye, Le Mesnil-Amelot 2 and Toulouse-Cornebarrieu
were thus “authorised to receive families”. The Cimade observed that there were
flagrant discrepancies between the various administrative detention centres in
terms of how families were actually catered for. The total lack of guidelines
as to what was indispensable for a child precluded any harmonisation of the
conditions of detention for families in the centres. The task was left to each
centre’s director, whose responsibility it was to adapt the day-to-day
management of the centre to the particular needs of a family with children, without
having the support of staff specifically trained in education.
...
D. Case-law
The domestic courts have given a number of
rulings on the practice of placing children accompanying their parents in
administrative detention pending removal.
1. Case-law of the ordinary courts
In an order of 23 October
2007 (no. 87/2007) the President of the Rennes Court of Appeal ruled on an
appeal by the public prosecutor with a view to the annulment of an order by the
liberties and detention judge concerning the release of a family with an infant.
The public prosecutor had argued that the fact of holding them “on premises
that were specially adapted to receive families did not constitute inhuman
treatment”. The Court of Appeal upheld the first-instance order with the
following reasoning:
“even though it provides an area reserved for the ‘reception’
of families, the detention centre remains a place where aliens are detained
pending their removal from France, for a maximum period of thirty-two days; in
the present case, the fact of holding in such a place a young mother, her
husband and their three-week-old baby constitutes inhuman treatment within the
meaning of Article 3 of the European Convention on Human Rights on account,
firstly, of the abnormal living conditions imposed on this very young child,
virtually since birth, and secondly, of the great emotional and mental distress
inflicted on the mother and father by detaining them with the infant, a
distress which, by its nature and duration ..., exceeds the threshold of
seriousness required for the above-mentioned provision to be engaged, and
which, moreover, is manifestly disproportionate to the aim pursued, namely the
couple’s removal ...”
In another order, this time of 29 September 2008
(no. 271/2008), the same Court of Appeal took the view that “even though it
provides an area reserved for the reception of families, the detention centre
remains a place of seclusion [and] the fact of holding in such a place a very young
mother, her husband and their one-year-old baby constitutes inhuman treatment
within the meaning of Article 3 of the European Convention on Human Rights”. That
court further noted in particular that, for a family, such seclusion caused
“great emotional and mental suffering” which “exceeded the threshold of
seriousness for the purposes of the Convention”.
In a decision of 10 December 2009 (Bulletin 2009, I, no. 250), the
Court of Cassation quashed that order. It found that the reasons given by the
Court of Appeal did not suffice for inhuman or degrading treatment to be
established in the particular circumstances of the case.
In an order of 21 February
2008, the Toulouse Court of Appeal (no. 08/00088) ordered the immediate
release of the appellants on the following grounds:
“the fact of holding in such a place a young mother, her
husband and their two-month-old baby constitutes inhuman treatment within the
meaning of Article 3 of the European Convention on Human Rights on account,
firstly, of the abnormal living conditions imposed on this very young child,
virtually since birth, having been held in police custody with its mother, and
secondly, of the great emotional and mental distress inflicted on the mother
and father by the detention measure, a distress that is manifestly
disproportionate to the aim pursued, namely the execution of the removal order ...”
That decision was quashed by the Court of Cassation, which
decided in a judgment of 10 December 2009 (Bulletin 2009, I, no. 249)
as follows:
“inhuman or degrading treatment is not constituted by the
provisional holding in administrative detention of a family, made up of a man,
a woman and their child of a few months’ old, pending the execution of an
enforceable removal measure, where such deprivation of liberty has been
lawfully ordered by a judicial authority, under its supervision, and is carried
out in an area of the detention centre specially reserved for families, unless
it is shown that the area is not adapted to the needs of family life or of
human dignity.”
2. Administrative case-law
The GISTI and the Cimade applied to the Conseil
d’Etat seeking the annulment of the decree of 30 May 2005 “in so far as it
organised the placement in administrative detention of families, including
minors, but their applications were rejected in a judgment of 12 June 2006 (no.
282275). Concerning the detention of families, it took the view that Article 14
of the decree in question did not have the purpose or effect of permitting the
administrative authorities to decide on the deprivation of liberty of the
families of individuals placed in detention, but that it sought only to provide
for the reception of such families. The Conseil d’Etat thus concluded
that the administrative authority was competent to make such arrangements,
which were not in breach either of the CESEDA or of the New York Convention on
the Rights of the Child.
...
III. RELEVANT
INTERNATIONAL LAW
...
B. Council of Europe
...
3. Commissioner for Human Rights
56. Following his visit
from 5 to 21 September 2005, the Commissioner for Human Rights published, on 15
February 2006, a report on “the effective respect for human rights in France” (CommDH(2006)2). He observed, concerning the detention of minors, that
children should not be kept in an enclosed facility, offering little in the way
of activities and few, if any, outings, and where conditions were precarious
and their safety could not be guaranteed. He recommended that an alternative
solution be proposed to families with children (§ 196). He noted in this connection that compulsory
residence orders, which were provided for by law, were “little used” (§ 257).
The Commissioner further observed that the placement of
children in a detention centre was incompatible with the New York Convention
and French law, which precluded the use of removal orders against minors. He
found, however, that a legal vacuum made it possible to place children in
detention centres and remove them, on the grounds of concern not to separate
them from their families. In his view, the French authorities appeared to
completely underestimate the legal and humanitarian problems posed by the
presence of children in such centres (§ 255). He added, lastly, that in any
event, no children should be detained on the grounds that their parents did not
have the necessary papers to remain in France, especially “in places marked by
overcrowding, dilapidation, promiscuity (sic) and very strong tensions”
(§ 257).
In his report of 20 November 2008 (CommDH2008(34))
the Commissioner noted that “[n]otwithstanding the recommendation made in the
2006 report, an increasing number of children [were] placed in administrative
holding centres with their parents”. He added that it was regrettable that such
holding centres and waiting zones at the border were the only places in France where minors under the age of 13 were deprived of their liberty. He found, lastly,
that the French authorities continued to underestimate the problems posed by
the presence of children in holding centres and invited the authorities to
place families in administrative detention only in cases of extreme necessity,
so as to avoid causing children irreparable trauma.
4. European Committee for the Prevention of Torture
(CPT)
Following its visit to numerous
administrative detention centres in France (Palaiseau, Vincennes 1 and 2,
Marseille, Toulouse-Blagnac 2 and Cornebarrieu), in 2006, the CPT raised with
the Government the question of detaining families, and in particular any
“accompanying” children, in such centres. It noted that this type of situation
was not exceptional.
In response to concerns about the conditions of accommodation, the
French authorities acknowledged that “the current furnishings in the bedrooms
[were] not always fully adapted to small children ...”.
C. European Union
1. European
Union legislation
On 16 December 2008 the Parliament and the
Council of the European Union adopted Directive 2008/115/EC, known as the
“Return Directive”, on common standards and procedures in Member States for returning
illegally staying third-country nationals (Official Journal L. 348, 24 December
2008, pp. 0098‑0107).
The relevant provision reads as follows:
“(13) The use of coercive measures should be
expressly subject to the principles of proportionality and effectiveness with
regard to the means used and objectives pursued ...”
In Council Directive
2003/9/EC, the “Reception Directive”, adopted on 27 January 2003, the European
Union gave the following definition of vulnerable persons particularly
requiring the authorities’ attention:
Chapter IV
Provisions for persons with special needs
Article 17
“General principle
1. ... minors, unaccompanied minors, disabled
people, elderly people, pregnant women, single parents with minor children and
persons who have been subjected to torture, rape or other serious forms of
psychological, physical or sexual violence ...”
Article 18
“Minors
1. The best interests of the child shall be a
primary consideration for Member States when implementing the provisions of
this Directive that involve minors. ...”
The European Union Charter of Fundamental Rights
became binding with the entry into force of the Lisbon Treaty on 1 December
2009. Article 24 reads as follows:
Article 24: The rights of the child
“... 2. In all actions relating to children, whether
taken by public authorities or private institutions, the child’s best interests
must be a primary consideration. ...”
2. Report commissioned by the European Parliament
Committee on Civil Liberties, Justice and Home Affairs (LIBE)
62. In December
2007 the LIBE Committee published a study entitled: “The conditions in
centres for third country national (detention camps, open centres as well as
transit centres and transit zones) with a particular focus on provisions and
facilities for persons with special needs in the 25 EU member states” (PE 393.275) analysing the implementation of the
“reception” directive.
The report’s authors found that minors were detained in the
vast majority of EU States (France, Germany, Belgium, the United
Kingdom, the Czech Republic, Slovakia, Portugal, Luxembourg, Spain,
Latvia, Estonia, Ireland, Greece, Malta and Cyprus). The report presents an
exhaustive study of the conditions of reception of vulnerable persons in EU
member States. Austria appears to be the only State that never has recourse to
detention for minors and Sweden limits it to seventy-two hours. Countries such
as Belgium, France and the United Kingdom, however, have recourse to detention
almost systematically for accompanied children.
The report further shows that in spite of the existence of
separate sections reserved for families with children and improved conditions
(game rooms, toys, etc.), the fact remains that the lack of privacy, stressful
living conditions, food, daily routine, negation of intimacy and the human and
material environment are not adapted to children. The
detention centre staff interviewed all felt that children should not be
imprisoned in detention centres for the short or long term, because of the negative
impact this traumatic experience could have on the children’s psychological
balance, on their relations with their parents and on the image the children had
of their parents whilst in detention.
In the part concerning France,
the report noted a deterioration in the atmosphere in these secure centres and
in particular a rise in the number of desperate acts committed, including
physical assaults. It was also suggested that the improvement in physical
conditions for families had the perverse effect of making this type of detention
seem banal when the very principle of detaining them in this position could be
questioned. The report’s authors added: “The presence of children in these
places where they are deprived of their freedom, even if these are ‘family
zones’ and they are kept here in order to keep families together, was
particularly shocking for the study team”.
IV. ALTERNATIVES
TO DETENTION
According
to the non-governmental organisation “International Detention Coalition”, the alternative
of compulsory residence orders is used in France in only 5% of cases (see the
report: “Survey on Alternatives to Detention of Asylum Seekers in EU Member
States”). Many organisations, both governmental and non-governmental, advocate alternatives
to detention.
...
THE LAW
...
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicants complained of a violation of Article
3 of the Convention. ... Secondly, they alleged that their placement in
administrative detention, from 27 August to 12 September 2007, in view of the
conditions and duration of the detention, had been incompatible with the
provisions of Article 3 of the Convention. That provision reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Court
begins by finding that the two applications should be joined.
...
B. The second aspect of the complaint alleging a
violation of Article 3, on account of the conditions of administrative
detention
...
2. Merits
(a) The parties’ arguments
The applicants observed that foreign minors were
accorded particular protection under the specific texts applicable to them, in
particular the New York Convention on the Rights of the Child of 26 January
1990.
The applicants added that the Rouen-Oissel detention
centre was overcrowded and dilapidated, with a lack of privacy and a high level
of tension, especially for children, who could not comprehend the reasons for
the detention. They explained that the centre reverberated with noise, as
announcements were constantly being made via loud-speakers, thus exacerbating
the feeling of stress and confinement. Despite the possibility of using some
childcare facilities, a detention centre remained totally unsuitable for very
small children. They added that in the accommodation block the bedroom windows were
covered with a tight grill that completely obscured the view of the courtyard
outside.
On their arrival, the applicants’ personal
belongings had been taken by the police officers, including the baby’s milk. The
bottle was returned to them only after they had negotiated with the officers.
The applicants had only been able to receive one
visit from a family member, for ten minutes and without the children being
present. The eldest daughter had refused to eat while in the centre and showed
signs of anxiety and stress. The second applicant’s requests concerning her
daughter’s dietary preferences had been denied and no exemption had been
authorised in order to adapt the proposed meals to the child’s needs. On
several occasions the police officers had threatened the child with “placement
by a judge” and the second applicant had been told that she was a “bad mother”.
The applicants added that, as they had no spare
clothing, they had been obliged to put on damp clothes after washing them.
They further argued that, in addition to the
unsuitability of the conditions on the premises, the duration of their
detention had been totally incompatible with their children’s best interests
and their eldest daughter had found it particularly traumatic, resulting in
eating disorders and considerable anxiety and stress during and after her stay
in the centre.
The Government observed that the administrative detention
of illegal immigrants awaiting removal did not suffice in itself to establish
the existence of inhuman and degrading treatment. They explained that in principle
it was not prohibited to detain children accompanied by their parents. They
recognised that it was necessary to preserve the child’s interest when families
were detained and consequently, once the legitimacy of the parents’ detention
had been established, there could be no question of separating them from their
children.
In this connection they explained that the
placement of minors in detention centres with their parents was not systematic
and that other solutions existed. Moreover, the applicants had been placed in administrative
detention in a hotel in Angers before being transferred to the airport. It was
only because their flight had been cancelled that they had then been placed in
the Rouen-Oissel centre.
The Government wished to distinguish the present
case, firstly, from that of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium
(no. 13178/03, ECHR 2006‑XI), where the applicant had been an
unaccompanied minor detained on her own; and, secondly, from the case of Muskhadzhiyeva
and Others v. Belgium (no. 41442/07, 19
January 2010), where the
Court had taken the view that the two eldest siblings were more vulnerable to
the environment of the detention centre. Whilst in Muskhadzhiyeva and Others
the children were aged seven months, three and a half, five and seven, in the
present case the children were three years’ old and six months’ old. Applying
the Court’s case-law, the Government argued that the age of the applicant
children was such that they would have a limited perception of their
environment. The Government noted that in Muskhadzhiyeva and Others the
children’s psychological problems had been certified by doctors, one of them
being diagnosed with “post-traumatic stress and showing an excess of anxiety far
greater than that of children of her age”. They pointed out that it had been
the combination of the children’s age and health, the length of the detention
and the ill-adapted accommodation facilities that had led the Court to find the
violation of Article 3 in that case.
The Government indicated that the authorities
had deployed significant resources to improve the reception of families in
detention. Rouen-Oissel was one of eleven centres that specifically catered for
parents accompanied by their minor children. The Government explained that part
of the centre was reserved for families, with family bedrooms containing facilities
for children (childcare material and games). They did not dispute the fact that
the windows were covered but pointed out that free access to the entire
accommodation area, including indoor and outdoor yards, was possible between 7.30
a.m. and 10.30 p.m.
The Government observed that visits were in
principle authorised from 10 a.m. to 11.30 a.m. and 2 p.m. to 5 p.m. and that
these times could be extended for visitors travelling from afar. They were
surprised by the applicants’ allegation that they had not enjoyed the right to
receive visits.
The Government were also surprised by the allegation
that police officers had proffered threats against the eldest child and noted
that the accusations remained unsubstantiated. They further called into
question the disorders from which the eldest child had allegedly suffered
(refusal to eat, stress, anxiety) and wondered why the parents had not
consulted the doctor on duty in the centre or used the infirmary. Moreover,
they cast doubt on the alleged denial of the request for an exemption to adapt
meals to the child’s needs. Article 13 of the internal rules provided for
special menus, especially for reasons of age or health, thus applicable to very
small children. In addition, the Government pointed out that families did not
take their meals with the other individuals in the centre.
As regards the length of the detention, the
Government observed that it was strictly governed by law and that the
lawfulness of any placement in detention was reviewed by a judge. In addition,
the length of the detention in the present case had been relatively short
compared to that observed in the cases of Mubilanzila Mayeka and Kaniki
Mitunga and Muskhadzhiyeva and Others, cited above.
(b) The Court’s assessment
(i) General principles
Concerning the general principles that are
applicable in the area of administrative detention, the Court would refer to
paragraph 48 of the Mubilanzila Mayeka and Kaniki Mitunga judgment,
cited above.
As regards minors, more specifically, the Court observes
that the international Convention on the Rights of the Child provides in
Article 37 that “[e]very 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”.
Concerning the confinement of foreign minors, the Court has already had occasion to rule on the detention of children in
custodial facilities pending their removal. In the case of Rahimi v.
Greece (no. 8687/08, §§ 85-86, 5 April 2011), the Court found, in respect of an
unaccompanied minor in such a facility, that the conditions of his detention
were so poor that they undermined the very essence of human dignity and that
they could be regarded in themselves, without taking into consideration the
length of the detention, as degrading treatment in breach of Article 3 of the
Convention.
The Court also found a violation of Article 3 in the Muskhadzhiyeva
and Others judgment (cited above, §
63) concerning four young children who were
held, accompanied by their mother, for one month pending their removal.
(ii) Application to the present case
(α) In respect of the children
. The Court observes that in the
present case, as in Muskhadzhiyeva and Others, the
applicant children were accompanied by their parents throughout the period of
detention. It finds, however, that this fact is not capable of exempting the authorities from their duty to protect children and take appropriate measures as part
of their positive obligations under Article 3
of the Convention (ibid., § 58) and that it is
important to bear in mind that the child’s extreme vulnerability is the
decisive factor and takes precedence over considerations relating to the status
of illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga,
cited above, § 55). The European Union directive concerning the reception of
aliens thus treats minors, whether or not they are accompanied, as a category
of vulnerable persons particularly requiring the authorities’ attention (see
paragraph 42 above). To be sure, children have specific needs that are related
in particular to their age and lack of independence, but also to their
asylum-seeker status. The Court would, moreover, observe that the Convention on
the Rights of the Child encourages States to take the appropriate measures to
ensure that a child who is seeking to obtain refugee status enjoys protection
and humanitarian assistance, whether the child is alone or accompanied by his
or her parents (see, mutatis mutandis, Muskhadzhiyeva and Others,
§ 62).
The Court notes that during the period of detention
in question, the applicant children were aged five months and three years,
respectively. They were held for fifteen days at the Rouen-Oissel detention
centre.
As
regards the conditions of detention, the Court found that the Rouen-Oissel
detention centre was among those “authorised” to receive families by the decree
of 30 May 2005 (see paragraph 32 above). However, the Court observes that
this text merely mentions the need to provide “bedrooms that are specially
adapted, in particular for childcare” but does not expressly list the
facilities required for the accommodation of families. Thus there are major
discrepancies between the various centres in terms of the facilities provided, each
centre’s director being responsible for such matters and free to take decisions,
without having the support of staff specifically trained in education (see
paragraph 32 above).
. The applicants described the
Rouen-Oissel centre as overcrowded and dilapidated, with a lack of privacy. The
detainees lived in constant fear of being deported, thus exacerbating tension
that was already acute ...
. It can be seen from the
reports of visits to the Rouen-Oissel centre ... that whilst the authorities
had been careful to separate families from other detainees, the facilities
available in the “families” area of the centre were nevertheless ill-adapted to
the presence of children: no children’s beds and adult beds with pointed metal
corners, no activities for children, a very basic play area on a small piece of
carpet, a concreted courtyard of 20 sq.m. with a view of the sky through wire
netting, a tight grill over the bedroom windows obscuring the view outside, and
automatically closing bedroom doors with consequent danger for children.
The Commissioner for Human Rights and the CPT
also raised the question of administrative detention centres being unsuited to
the accommodation of families and to the needs of children, taking the view
that, in addition to the ill-adapted material conditions, the lack of privacy, stress,
insecurity and hostile environment in such centres also had harmful
consequences for minors, at odds with the international principles on the
protection of children. In response to this criticism, the French authorities
acknowledged, in 2006, that the furnishings in family rooms were not always
adapted to infants (see paragraphs 38 to 40 above).
The Court
notes that such findings have also been made by certain appellate courts, which
in various rulings have observed that confinement in conditions such as those
in the present case caused “great emotional and mental suffering” to minors,
and that the “abnormal living conditions” imposed on very small children
“exceeded the threshold of seriousness for the purposes of Article 3 of the Convention”
(see paragraphs 34 to 36 above).
Having regard to the foregoing, the Court is of the opinion
that the conditions in which the applicant children were held were not adapted
to their age.
The Court reiterates that the detention of an
alien must be carried out in good faith and the length of
the detention should not exceed that reasonably required for the purpose
pursued (see, mutatis mutandis, Saadi v. the United
Kingdom [GC], no. 13229/03, § 74, ECHR 2008).
The Court observes that the various international texts recommend
that the authorities should be required to implement all necessary means to
limit, as far as possible, the duration of the detention of minors ...
Domestic law stipulates that the length of
detention for aliens pending removal should be limited to the time strictly
necessary to organise their departure ...
In the present case, the Court finds that the
length of detention of the children, over a period of fifteen days, whilst not excessive
per se, could be perceived by them as never-ending, bearing in mind that
the facilities were ill-adapted to their accommodation and age.
In addition, the applicants maintained that
detention in this ill-adapted centre had subjected the children, especially the
eldest, to a situation of stress that had entailed mental distress.
The Court would observe, like the Government, that these
allegations by the applicants have not been corroborated by any evidence. However,
in view of its findings as to the unsuitability of the premises for the
detention of children, the Court does not doubt that this situation created
anxiety, psychological disturbance and degradation of the parental image in the
eyes of the children.
It can be seen from the foregoing that the
conditions in which the children were held, for fifteen days, in an adult
environment, faced with a strong police presence, without any activities to
keep them occupied, added to the parents’ distress, were manifestly ill-adapted
to their age. The two children, a small girl of three and a baby, found
themselves in a situation of particular vulnerability, accentuated by the confinement.
Those living conditions inevitably created for them a situation of stress and
anxiety, with particularly traumatic consequences.
Accordingly, in view of the children’s young
age, the length of their detention and the conditions of their confinement in a
detention centre, the Court is of the view that the authorities failed to take into
account the inevitably harmful consequences for the children. It finds that the
authorities’ treatment of the children was not compatible with the provisions
of the Convention and exceeded the threshold of seriousness for Article 3 of
the Convention to be engaged. There has therefore been a violation of that
Article in respect of the children.
(β) In respect of the parents
The Court would reiterate
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 give 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 Mubilanzila Mayeka and Kaniki Mitunga, cited
above, § 61, and Muskhadzhiyeva and Others, cited above, § 64).
. As in the case of Muskhadzhiyeva
and Others, the Court finds that, whilst the administrative detention of
the applicants with their children in a centre could have created a feeling of
powerlessness, together with anxiety and frustration, the fact that they were
not separated from their children during the detention must have provided some
degree of relief from those feelings, such that the threshold required for a
violation of Article 3 has not been reached. Accordingly, there has been no
violation of Article 3 of the Convention in respect of the parents.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 (f) AND
5 § 4 OF THE CONVENTION
The applicants argued that their administrative
detention from 27 August to 12 September 2007 had taken place in conditions
and for a duration that entailed a breach of Article 5 § 1 (f). The present
case also raises an issue under Article 5 § 4. Those provisions read as follows:
“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: ...
(f) 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.
...
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.”
...
2. Merits
(a) The parties’ submissions
The applicants noted that a measure of removal
or placement in detention could not, in principle, be taken against minors. As
the measure concerned the parents and not the children themselves, the
detention of children therefore had no legal basis or safeguards.
They added that the alternative of entrusting
children to the care of a third party, as mentioned by the Government, was only
a theoretical possibility as it would inevitably entail the separation of
families for an indefinite duration. The applicants inferred that, for this
reason, detention was not reasonably necessary.
The Government did not dispute the fact that
the administrative detention of illegal immigrants constituted a restriction on
their freedom of movement. They observed, however, that in the present case the
detention had been imposed in a context of deportation, a situation that was
provided for in Article 5 § 1 (f) of the Convention. The Government argued that
administrative detention was prescribed by law and strictly supervised in
domestic law. They were of the opinion that the French law on administrative detention
had the “necessary qualities” and sufficient safeguards to preclude any risk of
arbitrariness.
. As
regards the status of minors accompanying their parents, the Government pointed
out that in the cases of Mubilanzila Mayeka and Kaniki Mitunga and
Muskhadzhivyeva and Others, cited above, the Court took the view that
the detention of minors in the context of Article 5 § 1 (f) was not unlawful per se provided there was some
relationship between the ground of permitted deprivation of liberty relied on and
the place and conditions of detention. They recognised, however, that in
the present case, the minor applicants had not been placed in detention on a
personal basis and that minors were usually protected against any removal
measure. The Government explained that this restriction did not, however,
prevent a minor from accompanying his or her parents in the detention centre when
they were affected by a measure of removal.
The Government added that parents placed in
detention could always opt for the alternative of entrusting their children to
the care of third parties. They insisted that, in any event, the Rouen-Oissel centre
was specifically adapted to the children’s situation of vulnerability on
account of their status and that their detention was thus compliant with the
provisions of the Convention.
As to whether the applicants had a remedy, in
accordance with Article 5 § 4 of the Convention, through which they could
challenge the lawfulness of their detention, the Government observed that any
individual who was placed in administrative detention by order of the prefect was
entitled to challenge that decision before the administrative courts. During
the detention, the liberties and detention judge reviewed its lawfulness after
forty-eight hours and again after fifteen days. As regards the particular case
of children who were not entitled to challenge a measure of detention that was
not directed against them personally, the Government explained that parents
could use such remedies on behalf of their minor children.
The Government observed that the liberties and
detention judge of the Rouen tribunal de grande instance had ordered, on
29 August 2007, an extension of the detention for fifteen days, a decision that
was upheld by the Rouen Court of Appeal on 30 August 2007. The ordinary courts
had thus found that the applicants’ detention for the period in question was
not excessive within the meaning of Article 5 of the Convention.
(b) The Court’s assessment
The Court observes that the period under
consideration, during which the applicants were placed in an administrative
detention centre, lasted from 28 August to 12 September 2007.
(i) Article 5 § 1 (f) of the Convention
The Court reiterates that all that is required for detention to be compatible with Article
5 § 1 (f) is that action is being taken with a view to deportation and that the
detention is carried out for the purposes of enforcing the measure. It is
therefore immaterial whether the underlying decision to expel can be justified
under national or Convention law, or whether the
detention was reasonably considered necessary, for example to prevent the
person concerned from committing an offence or fleeing. Deprivation of liberty
under Article 5 § 1 (f) will be justified only for as long as deportation proceedings
are in progress (see Chahal v. the United Kingdom, 15 November
1996, §§ 112-113, Reports of Judgments and Decisions 1996‑V).
Whilst the general rule
set out in Article 5 § 1 is that everyone has the right to liberty, Article 5 §
1 (f) provides an exception to that general rule, permitting States to control
the liberty of aliens in an immigration context. As the Court has remarked
before, subject to their obligations under the Convention, States enjoy an
“undeniable sovereign right to control aliens’ entry into and residence in
their territory” (see Chahal, cited above, § 73, and Saadi,
cited above, § 64).
It is well established in
the Court’s case-law under the sub-paragraphs of Article 5 § 1 that any
deprivation of liberty must, in addition to falling within one of the
exceptions set out in sub-paragraphs (a)-(f), be “lawful” (see, among
other authorities, Winterwerp v. the Netherlands, 24 October 1979,
§ 37, Series A no. 33; Amuur, cited above, § 50; and Witold Litwa v.
Poland, no. 26629/95, § 78, ECHR 2000‑III). The Court has
already stated, in two cases concerning similar facts, that
there must be some relationship between the ground of permitted deprivation of
liberty relied on and the place and conditions of detention (see Mubilanzila
Mayeka and Kaniki Mitunga, cited above, § 102, and Muskhadzhivyeva and
Others, cited above, § 73); lastly, the length of the
detention should not exceed that reasonably required for the purpose pursued (see
Saadi, cited above, § 74, and Rahimi, cited above, § 106).
In the present case, the members of the family
were held in administrative detention on account of the illegality of their
presence in France, on premises that were not adapted to the children’s extreme
vulnerability (see paragraphs 66
et seq. above). The Court finds, as in the above-cited case of Muskhadzhivyeva
and Others, that, in spite of the fact that they were accompanied by their
parents, and even though the detention centre had a special wing for the
accommodation of families, the children’s particular situation was not examined
and the authorities did not verify that the placement in administrative detention
was a measure of last resort for which no alternative was available. The Court
thus finds that the French system did not sufficiently protect their right to
liberty.
As regards the parents, however, the Court
observes that Article 5 § 1 (f) does not
demand that the detention of a person against whom action is being taken with a
view to deportation be reasonably considered necessary (see Chahal,
cited above, § 112).
Consequently, the Court finds that there has
been a violation of Article 5 § 1 (f) of the Convention in respect of
the children.
(ii) Article 5 § 4 of the Convention
The Court reiterates that the notion of
“lawfulness” under paragraph 4 of Article 5 has the same meaning as in
paragraph 1, such that the detained person is entitled to a review of his
detention in the light not only of the requirements of domestic law but also of
the text of the Convention, the general principles embodied therein and the aim
of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not
guarantee a right to judicial review of such breadth as to empower the court,
on all aspects of the case including questions of pure expediency, to
substitute its own discretion for that of the decision-making authority. The
review should, however, be wide enough to bear on those conditions which are
essential for the lawful detention of a person according to Article 5 § 1 (see Chahal,
cited above, § 127; S.D.
v. Greece, no. 53541/07, § 72, 11 June 2009; and Rahimi, cited
above, § 113).
The Court observes that the applicant parents
were able to challenge their detention before the domestic courts: they applied
to the administrative court for the annulment of the decision imposing on them
an obligation to leave the country and then, during the period of administrative
detention, the liberties and detention judge and the Court of Appeal ruled on
the lawfulness of the detention. In this connection, the Court notes that on 12 September
2007 the liberties and detention judge decided that the failure to enforce the
applicants’ removal could not be attributed to them and annulled the detention.
The Court cannot but infer from this that the parents had the possibility of
using a remedy by which to obtain a decision on the lawfulness of their
detention. There has not therefore been a violation of Article 5 § 4 in respect
of the parents.
However, the Court notes that the law does not
provide for the possibility of placing minors in administrative detention. As a
result, children “accompanying” their parents find themselves in a legal
vacuum, preventing them from using any remedies available to their parents. In
the present case, there had been no order of the prefect for their removal that
they could have challenged before the courts. Similarly, there had been no
decision ordering their placement in administrative detention and the liberties
and detention judge was therefore unable to review the lawfulness of their presence
in the administrative detention centre. The Court thus finds that they were not
guaranteed the protection required by the Convention.
Accordingly, there has been a violation of Article
5 § 4 of the Convention in respect of the children.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicants complained, firstly, that the
order for their removal to Kazakhstan had constituted a disproportionate
interference with their right to a private and family life. They argued,
secondly, that their placement in detention had not been a necessary measure in
relation to the aim pursued and that the conditions and duration of their
detention had constituted a disproportionate interference with their right to a
private and family life. They relied on Article 8 of the Convention, which
reads as follows:
“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.”
...
B. The second head of the complaint
...
2. Merits
(a) The parties’ submissions
The applicants argued that no aim could justify
their placement in detention and that the measure had been disproportionate. They
pointed out that they had provided sufficient guarantees that they would not
abscond and could have been ordered to reside at a specific address; and whilst
there was no question of separating parents from their children in the case of
placement in detention, a compulsory residence order would nevertheless, in the
present case, have been better suited to their situation.
The Government observed that the applicants had
enjoyed material conditions of reception adapted to families and had been
accommodated on premises that catered specially for that purpose. They further
noted that the present case did not raise any issue of family reunification.
(b) The Court’s assessment
The Court finds that there is no doubt as to
the existence of “family life”, within the meaning of the Marckx v. Belgium case-law
(13 June 1979, Series A no. 31), in the present case, and this has not in fact
been disputed by the Government. Article 8 is thus applicable to the situation
complained of by the applicants.
The Court reiterates that the essential object of Article 8 is to protect the individual
against arbitrary action by public authorities and this creates positive
obligations inherent in effective “respect” for family life (see Maire v. Portugal, no.
48206/99, § 69, ECHR 2003‑VII). States
are under an obligation to “act in a manner
calculated to allow those concerned to lead a normal family life” (see Marckx,
cited above, § 31).
. The Court is of the opinion that whilst
mutual enjoyment by parent and child of each other’s
company constitutes a fundamental element of family life (see Olsson v. Sweden (no. 1), 24 March
1988, § 59, Series A no. 130), it
cannot be inferred from this that the sole fact that the family unit is
maintained necessarily guarantees respect for the right to a family life,
particularly where the family is detained. It finds that the fact of confining
the applicants to a detention centre, for fifteen days, thereby subjecting them
to custodial living conditions typical of that kind of institution, can be
regarded as an interference with the effective exercise of their family life.
Such an interference
entails a violation of Article 8 of the Convention
unless it can be justified under paragraph 2 of that Article, that is, if it is
“in accordance with the law”, pursues one or more of the aims enumerated in
that provision, and is “necessary in a democratic society” for the fulfilment
of the said aim or aims.
The Court observes that the legal basis for the
detention of the parents was Article L. 554‑1 of the Entry and Residence
of Aliens and Right of Asylum Code (CESEDA).
As regards the aim pursued by the measure in
question, the Court observes that it was taken in the context of the prevention
of illegal immigration and the control of the entry and
residence of aliens. The decision could have been
in the interests of national security or the economic well-being of the country
or, just as equally, intended to prevent disorder or crime. The Court therefore
concludes that the interference pursued a legitimate aim for the purposes of
Article 8 § 2 of the Convention.
The Court must further
determine whether the family’s placement in detention, for a duration such as
that in the present case, was necessary within the meaning of Article 8 § 2 of
the Convention, that is to say, whether it was
justified by a pressing social need and, in particular, proportionate to the
legitimate aim pursued (see Mubilanzila Mayeka and Kaniki Mitunga,
cited above, § 80).
The Court would observe in this connection that
the authorities have a duty to strike a fair balance between the competing
interests of the individual and of society as a whole (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290).
It emphasises that this balance should be guaranteed taking account of
international conventions, in particular the Convention on the Rights of the
Child (see, mutatis mutandis, Wagner and J.M.W.L. v.
Luxembourg, no. 76240/01, § 120, 28 June 2007). The
protection of fundamental rights and the constraints imposed by a State’s
immigration policy must therefore be reconciled.
A measure of confinement must therefore be proportionate to the aim pursued by the
authorities, namely the enforcement of a removal decision in the present case. It
can be seen from the Court’s case-law that, where families are concerned, the
authorities must, in assessing proportionality, take account of the child’s
best interests. In this connection the Court would point out that there is currently a broad consensus – including in
international law – in support of the idea that in all decisions concerning
children, their best interests must be paramount (see Rahimi, cited above, § 108, and, mutatis mutandis,
Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR
2010).
Under the international Convention on the Rights of the Child (Article 3) the best
interests of the child must be a primary consideration in all actions
concerning children. Similarly, the “reception” directive (see paragraph 42
above), as transposed in the CESEDA legislation, provides expressly that member
States must ensure that the child’s best interest is a primary consideration. It
can also be seen from international reports (see above, under relevant
international law) that the protection of the child’s best interests involves
both keeping the family together, as far as possible, and considering
alternatives so that the detention of minors is only a measure of last resort ...
The Court notes that the French practice of
keeping families pending their deportation in detention centres has been
criticised and that France is one of only three European countries which
systematically have recourse to the detention of accompanied immigrant minors (see
the report of the LIBE Committee, paragraph 44
above).
The Court further observes that since 1999 the
UNHCR has invited States to study all alternatives to detention in the case of
children accompanying their parents and to have recourse to detention only
where there is no other means of keeping the family together ...
The Court notes, lastly, that the CNDS (National
Commission for Ethics and Security) and the Défenseur des enfants (Children’s
Defender) have, on various occasions, criticised the detention of children who
have not committed any criminal offence, whether or not they are accompanied,
calling for their best interests to be upheld. In their view, when the parents of
minors are awaiting removal, a compulsory residence measure, or failing that,
rented hotel accommodation, should be considered as a priority ...
In the present case, the applicants did not
present any risk of absconding that required their detention. Their confinement
in a secure centre did not therefore appear justified by a pressing social
need, especially as their compulsory residence in a hotel during the first
phase of their administrative detention does not seem to have caused any
problems.
The Court finds that there is no indication in
the material transmitted by the Government that any alternative to detention was
envisaged, whether a compulsory residence measure or, as decided by the
Maine-et-Loire prefecture, confinement in hotel accommodation (see paragraph 19
above). Neither does it appear that the authorities ever re-examined the
possibility of confinement outside a detention centre during the period in
question.
Lastly, it does not appear from the facts of the case that the
authorities took all the necessary steps to enforce the removal measure as
quickly as possible and thus limit the time spent in detention. The applicants
were held for fifteen days without any flight being arranged for them.
The Court is aware that a similar complaint was
previously declared inadmissible, concerning the detention of four children
with their mother for a period of one month, with no alternative to detention
having been envisaged (see Muskhadzhivyeva and Others, cited above). However,
in view of the foregoing and the recent developments in the case-law concerning
the “child’s best interests” in the context of the detention of immigrant
minors (see Rahimi, cited above), the Court cannot agree with the
arguments of the Government claiming that the children’s best interests were
upheld in the present case. The Court is of the view that the child’s best
interests cannot be confined to keeping the family together and that the
authorities have to take all the necessary steps to limit, as far as possible,
the detention of families accompanied by children and effectively preserve the
right to family life. In the absence of any indication to suggest that the
family was going to abscond, the measure of detention for fifteen days in a
secure centre appears disproportionate to the aim pursued.
Accordingly, the Court finds that the
applicants sustained a disproportionate interference with their right to
respect for their family life and that there has been a violation of Article 8 of
the Convention.
...
FOR THESE REASONS, THE COURT
...
3. Holds, unanimously, that there has been a violation of Article 3 of the Convention
in respect of the children, on account of their administrative detention;
4. Holds, by six votes to one, that there has been no violation of Article 3 of
the Convention in respect of the parents, on account of their administrative
detention;
5. Holds, unanimously, that there has been a violation of Article 5 §§ 1 and 4 of the
Convention in respect of the children, on account of their administrative
detention;
6. Holds, unanimously, that there has been a violation of Article 8 of the Convention
in respect of all the applicants, on account of their administrative detention;
...
Done in French, and notified in writing on 19 January 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules
of Court, the separate opinion of Judge Power-Forde is annexed to this
judgment.
D.S.
C.W.
PARTLY DISSENTING OPINION OF JUDGE POWER-FORDE
This case raises an important question concerning the
requisite threshold of suffering which an individual must endure before a
violation of Article 3 will be found. The majority accept that in view of
their young age, the duration of their stay in a camp wholly unsuited to their
needs and the conditions of their detention therein, the minor applicants were
victims of a violation under Article 3. However, when it came to their
parents, no such violation was found.
The question arises as to whether the subjection of parents to
the helpless role of onlooker while their children are treated in a degrading
and inhumane manner constitutes, in itself, a violation of Article 3. I
take the view that, depending on the relevant circumstances, it could - and
that, in this particular case, that factor, when combined with the general
conditions in which the entire family was detained, resulted in a violation of
the parents’ rights under Article 3 of the Convention.
It is well established that for impugned behaviour to fall
within the scope of Article 3 it must attain a minimum level of severity.
The assessment of this minimum, of course, 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.
The Court has considered treatment to be “degrading” when it arouses in its
victims feelings of fear, anguish and inferiority capable of humiliating and
debasing them and, possibly, of breaking their physical or moral resistance.
Treatment has been held to be “inhuman” because, inter alia, it was
premeditated, was applied for hours at a stretch and caused either actual
bodily or intense physical and mental suffering.
The threat of conduct prohibited by Article 3, provided it is sufficiently
real and immediate, may be in conflict with that provision and may constitute,
at the very least, inhuman treatment.
To my mind, the facts of this case are sufficient to establish that the
threshold for the ‘minimum level of severity’ required under Article 3 has
been crossed.
The first and second applicants were detained with their young
infant and toddler in a detention centre at Rouen-Oissel. Their living quarters
consisted of small room in which they “lived” for 15 days. They were fearful
and distressed at the danger they faced upon being returned to Kazakhstan (a danger which the authorities ultimately accepted in granting their request
for asylum). In this stressful state, they were shipped, back and forth, some
considerable distance between Rouen-Oissel and Charles de Gaulle airport, as
their deportations were arranged and then suddenly cancelled and then
subsequently rearranged. This uncertainty coupled with the circumstances of
their incarceration cannot but have compounded their anguish and fear and
instilled within them feelings of inferiority capable of humiliating and
debasing them.
The applicants were frightened young parents - 23 and 24 years
old - and the second applicant’s state of health was, at least, vulnerable
having regard to her post-natal condition. Upon arrival at the centre, their
personal belongings - including their infant baby’s milk - were taken from
them. They were obliged to stay in a tension-filled and promiscuous environment
(see paragraph 77) or remain ‘cooped up’ in a small room with two young
children. There was nothing for them to do for days on end but to wait,
deprived as they were of the basic necessity of fresh air (paragraph 20) and
the benefit of outdoor facilities where their toddler could play.
The alleged behaviour of the guards at this detention centre
(which has not been denied by the Government) was, on any assessment,
reprehensible. Verbally abusive to the second applicant, they humiliated her
with accusations of being ‘a bad mother’ and they intimidated her by issuing
threats to her little girl that she would be taken away from her parents and
placed in care. This three-year-old child, understandably, suffered anguish,
trauma and distress under such circumstances and she refused to eat. This, in
itself, must have been a source of great concern for her young parents - who
were powerless to do anything to relieve their child’s distress.
In Muskhadzhiyeva and Others v. Belgium and Kanagaratnam
and Others v. Belgium the Court did not find violations of Article 3 in
respect of parents who were held in detention centres with their children.
However, these cases are distinguishable. The humiliating taunts that were
levied against the young mother in this case, the menacing threats that were
directed against her child and the overall treatment of these applicants in the
conditions described at the Rouen-Oissel centre lead me to conclude that the
parents’ rights under Article 3 were also violated.
The majority find no violation in this regard. Their rationale
is that the parents’ anguish and frustration must have been appeased by the
fact that they were not separated from their children (paragraph 105). With due
respect, I cannot endorse this reasoning. The fact that their situation could
have been worse does not, in itself, bring what transpired in this case below
the threshold required. Furthermore, when it comes to treatment that is
prohibited, absolutely, by Article 3, it can never be a question of
“either/or”. Parents should not have to choose between either enduring the
immense psychological suffering of having their children taken away from them
so as to ensure that they will not be kept in conditions that violate
Article 3 or enduring the immense psychological suffering involved in
having to watch their children being treated in an inhumane and degrading
manner whilst being powerless to do anything about it.
Persons in the position of the first and second applicants are
entitled to be treated with dignity and respect. They have committed no crime.
They have exercised their right to seek asylum in a country governed by the
rule of law. At every stage in the asylum process they retain the dignity that
inheres in every human being. States may be entitled, in accordance with law,
to detain illegal immigrants pending deportation but they are not entitled to
forget that they are detaining human beings who have the absolute right not to
be subjected to inhuman or degrading treatment.
As is clear from the judgment, the Court of Appeal of Rennes
(paragraphs 43 and 44) and the Court of Appeal of Toulouse (paragraph 45)
recognise that, detaining a young mother and her husband with young children in
the conditions described at the detention centre in Rouen-Oissel:
“... constitutes inhuman treatment within the meaning of
Article 3 of the European Convention on Human Rights on account, firstly, of
the abnormal living conditions imposed on this very young child, virtually
since birth, and secondly, of the great emotional and mental distress inflicted
on the mother and father by detaining them with the infant, a distress which,
by its nature and duration ..., exceeds the threshold of seriousness required
for the above-mentioned provision to be engaged, and which, moreover, is
manifestly disproportionate to the aim pursued ...”
In my view, this Court should have
done likewise.
