NSONA v. THE NETHERLANDS
Doc ref: 23366/94 • ECHR ID: 001-45773
Document date: March 2, 1995
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 23366/94
Francine Nsona and Bata Nsona
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 2 March 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-20) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-15). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 16-20) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 21-42). . . . . . . . . . . . . . . . . . . . . . . . 4
III. OPINION OF THE COMMISSION
(paras. 43-71). . . . . . . . . . . . . . . . . . . . . . . . 8
A. Complaints declared admissible
(para. 43) . . . . . . . . . . . . . . . . . . . . . . . 8
B. Points at issue
(para. 44) . . . . . . . . . . . . . . . . . . . . . . . 8
C. Article 3 of the Convention
(paras. 45-54) . . . . . . . . . . . . . . . . . . . . . 8
CONCLUSION
(para. 55) . . . . . . . . . . . . . . . . . . . . . . .10
D. Article 8 of the Convention
(paras. 56-60) . . . . . . . . . . . . . . . . . . . . .10
CONCLUSION
(para. 61) . . . . . . . . . . . . . . . . . . . . . . .10
E. Article 13 of the Convention
(paras. 62-67) . . . . . . . . . . . . . . . . . . . . .11
CONCLUSION
(para. 68) . . . . . . . . . . . . . . . . . . . . . . .11
F. Recapitulation
(para. 69-71). . . . . . . . . . . . . . . . . . . . . .12
TABLE OF CONTENTS
Page
DISSENTING OPINION OF Mrs. G.H. THUNE AND Mr. I. BÉKÉS. . . . . . .13
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .14
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .15
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants are two Zaïrese citizens, born in 1984 and 1960
respectively. It is alleged that the first applicant is the niece of
the second applicant. The first applicant resides in Zaïre and the
second applicant at Vlaardingen, the Netherlands. Before the Commission
the first applicant was represented by the second applicant. The second
applicant was represented by Mr. W.A. Venema, a lawyer practising in
Rotterdam.
3. The application is directed against the Netherlands. The
respondent Government were represented by their Agent, Mr. H.A.M. von
Hebel of the Netherlands Ministry of Foreign Affairs.
4. The case concerns the first applicant's expulsion to Zaïre and
the conditions under which it was carried out. The applicants invoke
Articles 3, 8 and 13 of the Convention.
B. The proceedings
5. The application was introduced on 25 January 1994 and registered
on 31 January 1994.
6. The applicants requested a ruling under Rule 36 of the
Commission's Rules of Procedure but the President on 31 January 1994
found no basis for such a decision.
7. The President further decided, pursuant to Rule 48 para. 2 (b)
of the Commission's Rules of Procedure, to give notice of the
application to the respondent Government and to invite the Government
to submit written observations on the admissibility and merits of the
application.
8. The Government's observations were submitted on 23 March 1994.
The applicants replied on 30 April 1994 after an extension of the time-
limit.
9. On 6 July 1994 the Commission declared admissible the applicants'
complaints under Articles 3, 8 and 13 of the Convention. It declared
inadmissible the remainder of the application.
10. The text of the Commission's decision on admissibility was sent
to the parties on 7 July 1994 and they were invited to answer certain
questions put by the Commission and, if they so wished, to submit
further written observations and evidence.
11. The Government submitted answers to the questions and further
observations on 26 September 1994.
12. On 9 December 1994 the Commission granted the applicants legal
aid under the Commission's legal aid scheme.
13. After having been granted two extensions of the time-limit until
21 October 1994 and 4 November 1994 respectively and after having been
refused a third extension, the second applicant's lawyer submitted
answers to the questions and further observations on
17 February 1995.
14. The applicants' submissions were submitted after the expiry of
the last time-limit fixed for this purpose. On 21 February 1995 the
Commission decided that these submissions should not be taken into
account.
15. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
16. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
17. The text of this Report was adopted on 2 March 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
18. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
19. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
20. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
21. On 29 December 1993 the first applicant, Francine Nsona, then
nine years old, arrived in the Netherlands at Schiphol airport in the
company of the second applicant and the latter's son. Both children
were mentioned in the second applicant's passport as being her
children. The applicants allege that the first applicant is the niece
of the second applicant.
22. Following an investigation by the Royal Military Constabulary
(Koninklijke Marechaussee), entrusted with the control of entry of
persons on Dutch territory, the second applicant and her son were
allowed to enter the Netherlands on 30 December 1993 since they held
valid residence permits. As the first applicant did not have an entry
visa or an authorisation for temporary stay (machtiging tot voorlopig
verblijf), she was refused entry and taken to the airport hotel at
Schiphol, where she stayed under supervision of the Royal Military
Constabulary. Another Zaïrese national, Mrs. M.M., who had arrived on
the same flight, was also refused entry into the Netherlands.
23. The second applicant was informed by the Royal Military
Constabulary that she would have to accompany the first applicant back
to Zaïre. A seat for the first applicant had already been reserved on
a flight on 3 January 1994 to Kinshasa via Zürich.
24. On 31 December 1993 the second applicant filed an application to
the head of the local police at Vlaardingen on behalf of the first
applicant for a residence permit as a foster child and for compelling
humanitarian reasons. She also started proceedings before the District
Court (Kantongerecht) of Schiedam requesting the Court to appoint her
as the temporary guardian (tijdelijk voogdes) of the first applicant.
The latter proceedings are currently still pending.
25. On the same day the second applicant returned to Schiphol airport
requesting that the first applicant be allowed to accompany her to her
residence, since there was nobody in Zaïre who could take care of her.
She also stated she would not accompany the first applicant back to
Zaïre.
26. Also on 31 December 1993, at about 12.30 hrs., the applicants'
lawyer, in summary proceedings (kort geding), requested the President
of the Regional Court (Arrondissementsrechtbank) of The Hague to issue
an injunction against the State as regards the first applicant's
expulsion. A hearing on this request was planned for 11 January 1994.
At about 13.00 hrs. this date was communicated by the applicants'
lawyer to the lawyer of the Dutch State (landsadvocaat), who in turn
informed the Ministry of Justice of this date.
27. The responsible officer of the Ministry of Justice decided that
the first applicant was not allowed to remain in the Netherlands
pending the summary proceedings.
28. On 31 December 1993, at about 14.30 hrs. the applicants' lawyer
was informed by telephone by an officer of the Royal Military
Constabulary that at that time the first applicant was boarding a plane
for Zürich. The lawyer informed this officer of the date for the
hearing in summary proceedings before the President of the Regional
Court. The officer, however, replied he could only stop her expulsion
on the basis of instructions from the Ministry of Justice. On the same
day, i.e. on 31 December 1993, at about 14.45 hrs., the Swissair plane
carrying the first applicant, in the company of Mrs. M.M. who was also
being expelled to Zaïre, left for Zürich. They were both booked on a
flight from Zürich to Kinshasa on 4 January 1994.
29. On 3 January 1994 the applicants' lawyer requested the President
of the Regional Court of The Hague to advance the date of the hearing
planned for 11 January 1994 in order to prevent the first applicant
from being sent from Zürich to Kinshasa on 4 January 1994. The hearing
took place the same day at 14.30 hrs. The applicants' lawyer changed
the initial request into a request to order the Netherlands State to
allow the first applicant to return to the Netherlands and subsequently
to allow her to remain in the Netherlands pending the proceedings on
her request for a residence permit.
30. On 4 January 1994, following a request by the applicants' lawyer
not to send the first applicant to Zaïre, the Swiss authorities decided
to postpone her departure from Zürich. On 5 January 1994 the
applicants' lawyer was informed by the Swiss border police that her
departure was planned for 6 January 1994 and that this would only be
cancelled if evidence were submitted that she would not be met upon her
arrival in Zaïre, or if confirmation were received that she would be
granted entry into the Netherlands.
31. Also on 4 January 1994 the President of the Regional Court of The
Hague declared the applicants' requests for an injunction inadmissible
on the ground that the first applicant was still a minor who could only
be represented by a guardian, whereas the second applicant did not have
custody over her and thus could not act on her behalf.
32. The President, however, also had regard to the substance of the
case. Noting that no death certificate of the first applicant's mother
had been submitted, he found that a document of 24 September 1992,
submitted by the applicants and allegedly containing the last will of
the first applicant's mother in respect of the care of the first
applicant, did not contain any concrete indication that the second
applicant had in fact been entrusted with the custody over the first
applicant. Furthermore the President, noting that the second applicant
could have requested the District Court earlier than 31 December 1993
to be appointed temporary guardian, found no exceptional circumstances
on the basis of which the applicants' requests should be declared
admissible. Insofar as the applicants had invoked Article 3 of the
Convention, the President found no substantial grounds on the basis of
which the existence of a genuine and personal risk of inhuman treatment
in Zaïre had to be assumed. As regards the complaint under Article 3
of the Convention in respect of the manner of the first applicant's
expulsion, the President did not find it established that she travelled
unaccompanied. Finally, noting that the first applicant apparently had
been able to support herself either in Congo or in Zaïre after the
death of her mother until her departure for the Netherlands and finding
it not established that in these countries her care was not assured,
the President found no compelling humanitarian reasons on the basis of
which she should be allowed to reside in the Netherlands.
33. On 18 January 1994 the applicants filed an appeal against this
decision with the Court of Appeal (Gerechtshof) of The Hague, which
proceedings are currently still pending.
34. On 6 January 1994, the first applicant, who until that moment had
stayed in a Swissair nursery, left Zürich unaccompanied on a Swissair
flight to Kinshasa, where she arrived on 7 January 1994. On the same
day the Netherlands Embassy at Kinshasa requested the International
Committee of the Red Cross to meet her at Kinshasa airport. This
request was later withdrawn, since the Dutch authorities had been
informed that the first applicant would be met there by a Mr. Monga,
the Director External Relations of the Banque du Zaïre and a business
relation of Swissair, who had been contacted by Swissair, but whom the
applicants allegedly did not know.
35. On 7 January 1994 the head of the local police at Vlaardingen
rejected the second applicant's request on behalf of the first
applicant for a residence permit on formal grounds, inter alia, in that
the request had not been signed by the first applicant herself or by
her legal representative, the question of custody over the first
applicant still pending before the District Court. The second
applicant's appeal of 13 January 1994 to the Deputy Minister of Justice
is currently still pending.
36. In a telefax of 11 January 1994, which was transmitted on
12 January 1994 by the Netherlands Red Cross Society to the applicants'
lawyer, the International Committee of the Red Cross stated that the
Embassy had informed the International Committee on 10 January 1994
that they were following the case and that a report had been sent to
the Ministry of Justice.
37. On 13 January 1994 the applicants' lawyer requested the
Netherlands Embassy in Kinshasa to be informed whether or not the first
applicant had in fact been met by Mr. Monga, as stated by the Red Cross
Committee, and where and under which circumstances she was living. The
Embassy replied that he should address himself to the Information
Department of the Ministry of Justice.
38. By letter of 31 January 1994 the Minister of Foreign Affairs
informed the Minister of Justice that on 28 January 1994 a meeting with
the first applicant, who was accompanied by Mr. A. Mbemba and Mrs. C.
Bakangadio with whom she had lived before she went to the Netherlands,
had taken place at the Netherlands Embassy at Kinshasa. The Minister
of Foreign Affairs stated that due to communication problems with the
Embassy in Kinshasa it had not been possible to inform the Embassy in
time about the first applicant's arrival in Kinshasa and that therefore
no employee of the Embassy had been present at her arrival, but that
she had been met by Mr. Monga. Since Mr. Monga could not reach the
first applicant's family or acquaintances, he had entrusted her to the
Zaïrese immigration authorities. In the afternoon of 7 January 1994 the
Director of the Immigration Department requested a member of his staff
to take the first applicant to the address she had given, as no member
of her family had contacted the immigration authorities. After having
spent the night at the home of this immigration officer, the first
applicant had been taken to the address of Mr. Mbemba and
Mrs. Bakangadio, where she now lived. The Minister added that the first
applicant also sometimes stayed with her grandmother.
39. On 3 March 1994 the applicants and the association "Francine
Back" (Stichting Francine terug) requested the President of the
Regional Court of The Hague under Section 8:21 para. 3 of the General
Administrative Law Act (Algemene Wet Bestuursrecht) to take certain
interim measures, i.e., inter alia, to grant the first applicant
immediate provisional access to the Netherlands. On 25 March 1994 the
Acting President of the Regional Court found the applicants' request
admissible and the association's request inadmissible, but rejected the
applicants' request for interim measures as ill-founded. The Acting
President held that the first applicant or her legal representative
should apply for an authorisation for temporary stay, whereas he did
not find it established that she could not be expected to await the
decision on this application in Zaïre.
40. On 31 March 1994 the second applicant requested the Dutch
authorities to grant the first applicant an authorisation for temporary
stay. This request was rejected on 29 September 1994 by the Minister
of Foreign Affairs.
41. On 30 August 1994 a second meeting between a representative of
the Netherlands Embassy in Zaïre, the first applicant, Mr. A. Mbemba
and Mrs. C. Bakangadio took place at the home of Mr. Mbemba and Mrs.
Bakangadio with whom the first applicant had lived before she had left
for the Netherlands with the second applicant, and with whom she still
resided.
42. According to the Government, an investigation into the first
applicant's family is currently being conducted. So far no family link
has been established between the applicants, nor with any other living
person. Mrs. Bakangadio is a sister of a business friend of the first
applicant's father, who appears to have entrusted the care of the first
applicant to this business friend in case of his and his wife's death.
This friend in turn entrusted her care to Mrs. Bakangadio and her
family who accepted this responsibility. Mr. Mbemba and Mrs. Bakangadio
do not know any living relatives of the first applicant, they did not
know the second applicant, and are not acquainted with the document of
24 September 1992 allegedly containing the last will of the first
applicant's mother.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
43. The Commission has declared admissible the first applicant's
complaint that her expulsion, and the conditions under which the
expulsion order was carried out, constituted inhuman treatment contrary
to Article 3 (Art. 3) of the Convention. The Commission has also
declared admissible the applicants' complaints that the first
applicant's expulsion violated their right to respect for family life
as guaranteed by Article 8 (Art. 8) of the Convention and that they had
no effective remedy before a national authority available to them
within the meaning of Article 13 (Art. 13) of the Convention.
B. Points at issue
44. The following are the points at issue in the present application:
- whether there has been a violation of Article 3 (Art. 3) of the
Convention, as regards the first applicant;
- whether there has been a violation of Article 8 (Art. 8) of the
Convention, as regards both applicants;
- whether there has been a violation of Article 13 (Art. 13) of the
Convention, as regards both applicants.
C. Article 3 (Art. 3) of the Convention
45. Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
46. The applicants complain that the first applicant's unaccompanied
return to Zaïre, the Dutch authorities' failure to make adequate
arrangements for her to be met upon her arrival there and the failure
to guarantee her care and welfare in Zaïre amount to treatment contrary
to Article 3 (Art. 3) of the Convention.
47. The Government contend that the decision to refuse the first
applicant entry to the Netherlands did not violate her rights under
Article 3 (Art. 3) of the Convention, neither because of the general
situation in Zaïre nor in view of the way she was returned to her
country of origin.
48. The Government submit that it has not been argued either in the
domestic proceedings or in the proceedings before the Commission that
the first applicant would risk treatment contrary to Article 3 (Art. 3)
of the Convention when returned to Zaïre. She is in the same position
as any Zaïrese national who has not been involved in any activities
against the Zaïrese Government. Moreover on the basis of her personal
circumstances no indications can be found that she would face a real
risk of ill-treatment there.
49. As to the way in which she returned to Zaïre the Government
submit that the first applicant was accompanied until Zürich, where the
continuation of her return was delayed as a consequence of an
intervention by her lawyer. Furthermore, although upon her arrival in
Zaïre she was not met by an employee of the Netherlands Embassy, she
was not left unattended and was brought the next day to Mr. Mbemba and
Mrs. Bakangadio with whom she had already stayed before she left for
the Netherlands.
50. The Commission recalls that Contracting States have the right,
as a matter of well-established international law and subject to their
treaty obligations, including those based on Article 3 (Art. 3) of the
Convention, to control the entry, residence and expulsion of aliens.
The expulsion of an alien by a Contracting State may give rise to an
issue under Article 3 (Art. 3) of the Convention, and hence engage the
responsibility of that State under the Convention, where substantial
grounds have been shown that the person concerned faced a real risk of
being subjected to treatment contrary to Article 3 (Art. 3) of the
Convention in the country to which this person was returned (cf. Eur.
Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series
A no. 215, p. 34, paras. 102-103).
51. The Commission further recalls that a treatment has to reach a
certain level of severity before it can be considered to be contrary
to Article 3 (Art. 3) of the Convention. The assessment of this level
depends on all circumstances of the case, such as the nature and
context of the treatment, the manner and method of its execution, its
duration, its physical or mental effects and, in some instances, the
age of the victim (cf. Eur. Court H.R., Cruz Varas and Others judgment
of 20 March 1991, Series A no. 201, p. 31, para. 83).
52. The Commission accepts that the first applicant's return to Zaïre
may have involved a certain hardship, but it does not find it
established that her expulsion to Zaïre exposed her to the risk of
treatment there which could be considered as being contrary to
Article 3 (Art. 3) of the Convention.
53. As regards the manner in which the first applicant's expulsion
has been carried out, the Commission notes that, at the time of her
expulsion, the first applicant was nine years old and, allegedly,
without any relatives or other persons in Zaïre who could provide her
with the required care. The Commission further notes that she was
expelled from the Netherlands after two days and, after having spent
a number of days in a Swissair nursery in Zürich, arrived in Kinshasa
on 7 January 1994. The Commission finds it established that the
Netherlands authorities, prior to the first applicant's expulsion, had
failed to investigate her personal situation in Zaïre and had failed
to take adequate measures in respect of her arrival there.
54. The Commission considers that, in these circumstances, the first
applicant's expulsion must have involved a certain hardship and cannot
be considered as having been carried out with due concern to the
relevant factors, but it did not reach the level of severity necessary
for Article 3 (Art. 3) to be applicable.
CONCLUSION
55. The Commission concludes, by 20 votes to 4, that there has been
no violation of Article 3 (Art. 3) of the Convention, as regards the
first applicant.
D. Article 8 (Art. 8) of the Convention
56. Article 8 para. 1 (Art. 8-1) of the Convention provides:
"Everyone has the right to respect for his private and
family life, his home and his correspondence."
57. The applicants submit that the first applicant has no family life
with anyone in her country of origin and, as a consequence of her
expulsion, was barred from developing a family life with her aunt who
is the only remaining member of her family. They argue that an
interference with a new family life may also be contrary to Article 8
(Art. 8) of the Convention, and that the restrictive Dutch immigration
policy is an insufficient basis for the conclusion that the first
applicant's expulsion was a compelling social necessity.
58. The Government submit that there has been no interference with
the applicants' family life, since there has never been any family life
between them. Both before and after her stay in the Netherlands, the
first applicant has been taken into the family of Mr. Mbemba and
Mrs. Bakangadio, who provide for her care. They have stated to the
Dutch authorities that they do not know whether or not the first
applicant has any living relatives, that they did not know the second
applicant and they were unaware of the document alleged to be the first
applicant's mother's last will as regards the care of the first
applicant. They have further stated that they have accepted the request
of Mrs. Bakangadio's brother to provide for the first applicant, whose
care had initially been entrusted to him by the first applicant's
father.
59. The Commission notes that, when the first applicant entered the
Netherlands with the second applicant, she was incorrectly mentioned
in the second applicant's passport as being her daughter. The
Commission further notes that the applicants' alleged family
relationship has remained unsubstantiated.
60. In these circumstances the Commission is of the opinion that the
first applicant's expulsion to Zaïre cannot be regarded as constituting
an interference with the applicants' right to respect for their family
life within the meaning of Article 8 (Art. 8) of the Convention.
CONCLUSION
61. The Commission concludes, by 22 votes to 2, that there has been
no violation of Article 8 (Art. 8) of the Convention.
E. As regards Article 13 (Art. 13) of the Convention
62. Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
63. The applicants submit that the President of the Regional Court
only marginally examined the merits of the applicants' request to order
the first applicant's return to the Netherlands before he rejected it
as inadmissible on the ground that the first applicant was a minor and
that her aunt had not been entrusted with the custody over her. They
further submit that, as the Netherlands authorities, contrary to their
normal practice, did not allow the first applicant to await the outcome
of the summary proceedings in the Netherlands, she was deprived of an
effective remedy.
64. The Government, referring to the Leander case (Eur. Court H.R.,
judgment of 26 March 1987, Series A no. 116), submit that the
applicants had an effective remedy within the meaning of Article 13
(Art. 13) of the Convention, in that they could apply for an
authorisation for temporary stay. Moreover, the applicants had
available an effective remedy before the President of the Regional
Court of The Hague, who, on 4 January 1994, did not reject the
applicants' request for lack of competence but rejected it after having
examined all aspects of the case. The fact that the request was
unsuccessful does not affect the effectiveness of these proceedings.
65. As regards the fact that the first applicant was not allowed to
stay in the Netherlands pending the summary proceedings before the
President of the Regional Court of The Hague, the Government submit
that, according to Dutch policy in respect of aliens, only persons, who
have already entered the Netherlands, are allowed to await the outcome
of such summary proceedings in the Netherlands. This rule does not
apply to persons who have been refused entry.
66. The Commission notes that the applicants had access to the
President of the Regional Court of The Hague. It is true that the
President declared the applicants' request for an injunction
inadmissible because the second applicant did not have custody over the
first applicant and thus could not act on the latter's behalf. However,
the President also had regard to the substance of the case (see para.
32 above).
67. In these circumstances the Commission is of the opinion that the
applicants had an effective remedy available to them within the meaning
of Article 13 (Art. 13) of the Convention.
CONCLUSION
68. The Commission concludes, unanimously, that there has been no
violation of Article 13 (Art. 13) of the Convention.
F. Recapitulation
69. The Commission concludes, by 20 votes to 4, that there has been
no violation of Article 3 (Art. 3) of the Convention, as regards the
first applicant (para. 55).
70. The Commission concludes, by 22 votes to 2, that there has been
no violation of Article 8 (Art. 8) of the Convention (para. 61).
71. The Commission concludes, unanimously, that there has been no
violation of Article 13 (Art. 13) of the Convention (para. 68).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
DISSENTING OPINION OF Mrs. G.H. THUNE AND Mr. I. BÉKÉS
Unfortunately we are unable to agree with the majority as regards
Article 8 of the Convention as we consider that there has been lack of
respect for the private and family life of the first applicant.
We do recognise the right of each state to regulate and limit
immigration as well as the difficulties national authorities can be
faced with when children arrive at the border, unaccompanied or
accompanied by adults without parental responsibility.
However, it also follows from Commission's and Court's case-law
that even if the person concerned would not face any serious risk of
torture or ill-treatment upon arrival in the country to which he or she
is being expelled, the expulsion may entail serious problems which may
raise an issue under the Convention and thereby create an obstacle to
the expulsion as such or require particular protective measures.
For example we would mention persons with serious health problems
as well as persons dependant on help from other people due to their
young age or particular physical or psychological needs.
We recall that the present case concerns a young girl, 9 years'
old, whose parents had died. She was left with strangers upon arrival
in the Netherlands and refused a temporary residence permit pending the
outcome of the summary proceedings in which the merits of her case were
to be considered.
As established by the majority of the Commission, the Dutch
authorities had failed to investigate Francine's personal situation in
Zaïre as well as to take adequate measures in respect of her arrival
there (para. 53 of the Commission's report).
Having regard to these particular circumstances, we find that the
Dutch authorities have not shown sufficient respect for the private and
family life of the applicant and thus acted contrary to Article 8 of
the Convention.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
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25.01.94 Introduction of application
31.01.94 Registration of application
Examination of admissibility
31.01.94 President's decision to communicate the
case to the respondent Government and to
invite the parties to submit observations
on admissibility and merits
23.03.94 Government's observations
30.04.94 Applicant's observations in reply
06.07.94 Commission's decision to declare
application in part admissible and in part
inadmissible
Examination of the merits
07.07.94 Decision on admissibility transmitted to
parties. Invitation to parties to answer
questions put by Commission and to submit
further observations on the merits
26.09.94 Government's answers to questions put by
Commission and further observations
03.12.94 Commission's consideration of state of
proceedings
09.12.94 Commission's grant of legal aid
21.02.95 Commission's deliberations on the merits,
final vote and consideration of text of
the Report
02.03.95 Adoption of Report