Court/Judicial body:European Court of Human Rights
Date:12 October 2006 CRC
Provisions: Article 3: Best interests of the child Article 10: Family reunification Article 22: Refugee children Article 37: Torture and deprivation of liberty
Other international provisions:European Convention on Human Rights (“ECHR”), Articles 3, 5, 8, 34, and 41
Domestic provisions:Aliens (Entry, Residence, Settlement and Expulsion) Act
Background:In August 2002, the Belgian authorities apprehended a five-year-old girl, a Congolese national, at Brussels airport who was travelling from the Democratic Republic of Congo with her uncle without the necessary travel papers. The purpose of the journey was for the child, whose father had disappeared, to rejoin her mother who had obtained refugee status in Canada. The child was detained in a transit centre for adults for two months, and a decision was taken refusing her entry into Belgium and ordering her removal. In October 2002, the chambre de conseil of the Brussels Court of First Instance held that the child’s detention was incompatible with the Convention on the Rights of the Child and ordered her immediate release. The following day the child was deported to the Democratic Republic of Congo. She was accompanied to the airport by a social worker and looked after in the plane by an in-flight attendant. No members of her family were waiting for her when she arrived. At the end of October 2002, the child joined her mother in Canada following the intervention of the Belgian and Canadian Prime Ministers. In their application against Belgium lodged with the European Court of Human Rights (“Court”), the applicants, the mother and her child respectively, alleged in particular that the child’s detention and deportation had violated Articles 3, 8, 5 and 13 of the European Convention on Human Rights (“Convention”).
Issue and resolution:Detention and deportation of an unaccompanied minor asylum seeker; best interests of the child; inhuman treatment; right to family life. In relation to both the child and her mother, the Court held, unanimously, that the child’s detention and deportation amounted to violations of Articles 3 (prohibition of inhuman treatment) and 8 (right to private and family life) of the Convention. The Court also held, unanimously, that there had been a violation of Article 5(1) and (4) (right to liberty and security) in relation to the child. Under Article 41 (just satisfaction), the Court awarded the applicants EUR 35,000 for non-pecuniary damage and EUR 14,036 for costs and expenses.
Court reasoning: Article 3 (prohibition of inhuman treatment):The Court noted that the child, unaccompanied by her parents, had been detained for two months in a centre intended for adults, with no counselling or educational assistance from a qualified person specially assigned to her. The care provided to her had been insufficient to meet her needs. Due to her very young age, the fact that she was an illegal alien in a foreign land and the fact that she was unaccompanied by her family, the child was in an extremely vulnerable situation. However, no specific legal framework existed governing the situation of unaccompanied alien minors. Although the authorities were in a position to prevent or remedy the situation, they had failed to take adequate measures to fulfil their duty to take care of the child. Her detention demonstrated a lack of humanity and amounted to inhuman treatment, in violation of Article 3. Regarding the mother’s rights, the evidence before the Court indicated that the only action which the Belgian authorities had taken with respect to the mother was to inform her that her daughter had been detained and to provide her with a telephone number where she could be reached. The Court had no doubt that the mother had suffered deep distress and anxiety due to her daughter’s detention. Therefore, the mother’s rights under Article 3 had been violated on account of her daughter’s detention. When they deported the child, the Belgian authorities had not sought to ensure that the child would be properly looked after or had regard to the real situation she was likely to encounter when she returned to her country of origin. In view of the conditions of its implementation, her removal was bound to have caused her extreme anxiety, and demonstrated a total lack of humanity towards a very young, unaccompanied minor as to amount to inhuman treatment. The Court further found that, by deporting the child, Belgium had violated its positive obligations to take requisite measures and precautions. The Belgian authorities did not advise the mother of her daughter’s deportation, and she learned of it only after the event. The Court had no doubt that this caused the mother deep anxiety. It therefore held that there had been a violation of both applicants’ rights under Article 3 on account of the child’s deportation. Article 8 (right to private and family life):One of the consequences of the child’s detention was to separate her from her uncle, with the result that the she had become an unaccompanied alien minor, a category in respect of which there was a legal void at the time. The detention had significantly delayed her reunion with her mother. The Court further noted that, far from assisting her reunion with her mother, the authorities’ actions had hindered it. Having been informed from the outset that the mother was in Canada, the Belgian authorities should have made detailed inquiries of the Canadian authorities in order to clarify the position and bring about an early reunion of mother and daughter. Since there was no risk of the child seeking to evade the supervision of the Belgian authorities, her detention in a closed centre for adults served no purpose and other measures more conducive to the higher interest of the child guaranteed by Article 3 of the Convention on the Rights of the Child, could have been taken. Since the child was an unaccompanied alien minor, Belgium was under an obligation to facilitate the reunion of the family. In these circumstances, the Court held that both applicants’ rights under Article 8 had been violated. When they deported the child, the Belgian authorities not only failed to facilitate her reunion with her mother, they also failed to ensure that she would be cared for on her arrival in Kinshasa. Accordingly, Belgium had failed to comply with its positive obligations and had disproportionately interfered with the applicants’ rights to respect for their family life. The Court therefore held that both applicants’ rights under Article 8 had been violated. Article 5 (right to liberty and security):The child was detained in a closed centre intended for illegal foreign aliens in the same conditions as adults. Those conditions were not adapted to the position of extreme vulnerability in which she found herself as a result of her status as an unaccompanied alien minor. In those circumstances, the Court considered that the Belgian legal system at the time and as it functioned in the case before it had not sufficiently protected her right to liberty. The Court therefore held that there had been a violation of the child’s rights under Article 5. The Court noted that the Belgian authorities had decided on the date of the child’s departure the day after she lodged her application to the chambre de conseil for release from detention, that is to say, even before the Belgian court had ruled on it. They had not sought to reconsider the position at any stage. Moreover, the deportation had proceeded despite the fact that the 24 hour-period for an appeal by the public prosecutor had not expired and that a stay applied during that period. The child’s successful appeal against detention was thus rendered futile. The Court therefore held that child’s rights under Article 5 § 4 had been violated and that no separate examination of the complaint under Article 13 was necessary.
Excerpt citing CRC and other relevant human rights See paragraph 39 of the judgment for full citations of Articles 3, 10, 22 and 37 of the CRC. 81. The [European Convention on Human Rights] 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… 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 European Convention on Human Rights and the Convention on the Rights of the Child (ratified 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. 83. … 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…
CRIN Comments:CRIN believes this decision is consistent with the CRC. In addition to Articles 3, 10, 22 and 37 cited in the decision, Article 9 provides that state parties must ensure that a child is not separated from their parents against their will, and where such separation results from a state’s action, such as detention or deportation of the child, the state shall provide the parents with essential information concerning the whereabouts of the child. Moreover, any child temporarily deprived of their family environment shall be entitled to special protection and assistance provided by the State under Article 20.
Citation:Application no. 13178/03
Link to Full Judgment:http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-77447