NSONA v. THE NETHERLANDS
Doc ref: 23366/94 • ECHR ID: 001-1881
Document date: July 6, 1994
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AS TO THE ADMISSIBILITY OF
Application No. 23366/94
by Francine NSONA and Bata NSONA
against the Netherlands
The European Commission of Human Rights sitting in private on
6 July 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 January 1994
by Francine NSONA and Bata NSONA against the Netherlands and
registered on under file No. 23366/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
23 March 1994 and the observations in reply submitted by the
applicant on 30 April 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are both Zaïrese nationals. The first applicant
is the niece of the second applicant. They were born in 1984 and 1960
respectively. The first applicant resides in Zaïre, and the second
applicant at Vlaardingen, the Netherlands. Before the Commission the
first applicant is represented by the second applicant. The second
applicant is represented by Mr. W.A. Venema, a lawyer practising in
Rotterdam.
The facts of the case, as submitted by the parties, may be
summarised as follows. Some of the facts are disputed between the
parties.
The second applicant resides lawfully in the Netherlands. The
first applicant, hereafter referred to as Francine, is the daughter of
the second applicant's sister, Ndombe Nsona, who died at the beginning
of 1993 in Brazzaville (Congo), where she resided with Francine. The
applicants submit that, in a handwritten document dated
24 September 1992, Francine's mother declared that she entrusted the
care of her daughter to the second applicant in case she would die.
It is alleged that the second applicant is Francine's closest relative
still alive.
The applicants allege that, after her mother's death, Francine
was initially taken in by a neighbour of her mother, but that after a
while she had to leave and from then on led a wandering existence
supporting herself by, inter alia, begging. It is further alleged that
she has no other relatives in Zaïre capable of providing for her care.
According to the Government Francine was, as from her mother's
death until she left for the Netherlands, cared for by Mr. A. Mbemba
and Mrs. C. (Mbemba) Bakangadio in Kinshasa.
On 29 December 1993 the second applicant, her son and Francine
arrived in the Netherlands at Schiphol airport. The second applicant's
passport mentioned both children. 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. As Francine did not have an entry visa or an
authorisation for temporary stay (machtiging voor voorlopig verblijf),
she was refused entry and was 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.
The second applicant was informed by the Royal Military
Constabulary that she would have to accompany her niece back to Zaïre.
A place for the latter had already been reserved on a flight on
3 January 1994 to Kinshasa via Zürich. The second applicant's request
to be allowed to submit a request for asylum on behalf of Francine was
allegedly not accepted.
On 31 December 1993 the second applicant filed an application to
the head of the local police at Vlaardingen on behalf of her niece 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 Francine. These proceedings
are currently still pending.
On the same day the second applicant returned to the airport
requesting that her niece be allowed to leave with her, since there was
nobody in Zaïre who could take care of her. She also stated she would
not accompany her niece back to Zaïre.
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 concerning Francine's expulsion. A
hearing on this request was set 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.
The responsible officer of the Ministry of Justice decided that
Francine was not allowed to remain in the Netherlands pending the
summary proceedings.
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 Francine at that time 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 Francine's 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 plane carrying
Francine in the company of Mrs. M.M., who was also being expelled to
Zaïre but whom she allegedly did not know, left for Zürich. Mrs. M.M.
continued her trip without Francine, who remained in Zürich. She was
scheduled to leave for Kinshasa on 4 January 1994 at 10.40 hrs.
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 that Francine would be
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 Francine
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.
On 4 January 1994, following a request by the applicants' lawyer
not to send Francine to Zaïre, the Swiss authorities decided to
postpone Francine's departure from Zürich. On 5 January 1994 the
applicants' lawyer was informed by the Swiss border police that
Francine's departure was planned for 6 January 1994 and that this would
only be cancelled if evidence would be submitted that Francine would
not be met upon her arrival in Zaïre, or if confirmation were received
that she was granted entry into the Netherlands.
Also on 4 January 1994 the President of the Regional Court of The
Hague declared the applicants' requests for an injunction against the
State inadmissible on the ground that Francine was still a minor who
could only be represented by a guardian, whereas the second applicant
did not have the custody over her and thus could not act on her behalf.
The President, noting that no death certificate of Francine's mother
had been submitted, further found that the document of
24 September 1992 did not contain any concrete indication that the
second applicant had been entrusted with the custody over Francine.
The President, noting that the second applicant could have requested
the District Court earlier than 31 December 1993 to be appointed as
temporary guardian, also held that there were no exceptional
circumstances on the basis of which the applicants' requests should not
be declared inadmissible. Finally, noting that Francine 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 Francine's 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. 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.
On 6 January 1994, Francine, 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 Francine at the Kinshasa airport. This
request was later withdrawn, since the authorities were informed that
Francine 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
do not know.
On 7 January 1994 the head of the local police at Vlaardingen
rejected the second applicant's request on behalf of her niece for a
residence permit on formal grounds, inter alia, in that the request had
not been signed by Francine herself or by her legal representative, the
question of custody over Francine being 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.
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.
On 13 January 1994 the applicants' lawyer requested the
Netherlands Embassy in Kinshasa to be informed whether or not Francine
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.
By letter of 31 January 1994 the Minister of Foreign Affairs
informed the Minister of Justice that on 28 January 1994 a meeting with
Francine, who was accompanied by her uncle Mr. A. Mbemba and her aunt
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 timely about Francine'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 Francine's family, 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 bring Francine to the address she had given, as no member of
Francine's family had contacted the immigration authorities. After
having spent the night at the home of this immigration officer,
Francine had been brought to the address of Mr. Mbemba and
Mrs. Bakangadio, where she now lived. The Minister added that Francine
also stayed sometimes with her grandmother.
According to the Government, Mr. A. Mbemba and Mrs. C. (Mbemba)
Bakangadio are an uncle and an aunt of Francine. The second applicant
submits that Mr. Mbemba and Mrs. Bakangadio are not related to
Francine, but does not exclude the possibility that they are friends
of Francine's mother. As regards Francine's grandmother, the
applicants submit that she no longer lived in Zaïre, having left with
Francine's mother for Brazzaville.
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 her provisional access to
the Netherlands. On 25 March 1994 the Acting President of the Regional
Court found the applicants' request admissible, but held that Francine
or her legal representative should apply for an authorisation for
temporary stay, whereas he did not find it established that Francine
could not await the decision on this application in Zaïre.
On 8 March 1994 the second applicant's lawyer was informed that,
on 5 March 1994, Francine had left the home of Mr. Mbemba and
Mrs. (Mbemba) Bakangadio and had moved to the home of a Mr. Mnenge,
where she stayed until 19 March 1994. At present Francine appears to
be residing in a refugee camp for Zaïrese near Brazzaville in Congo.
On 31 March 1994 the second applicant requested the Dutch
authorities to grant Francine an authorisation for temporary stay.
COMPLAINTS
1. The applicants complain that Francine's expulsion from the
Netherlands, and the conditions under which the expulsion order was
carried out, violated their rights under Articles 3, 8 and 13 of the
Convention.
2. The applicants further complain that they were denied the access
to a court guaranteed by Article 6 of the Convention in that in his
decision of 4 January 1994 the President of the Regional Court declared
their requests inadmissible.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 January 1994 and registered
on 31 January 1994. The applicants requested the Commission to apply
Rule 36 of the Commission's Rules of Procedure by requesting the
Netherlands Government to take certain measures.
The President of the Commission decided on 31 January 1994 not
to indicate to the Netherlands Government the measures pursuant to Rule
36 of the Rules of Procedure suggested by the applicants.
The President further decided that notice of the application
should be given to the respondent Government, in accordance with Rule
48 para. 2 (b) of the Rules of Procedure, and that they should be
invited to submit written observations on the admissibility and merits
of the application. Precedence was also given to the application,
pursuant to Rule 33 of the Rules of Procedure.
The Government's observations were submitted on 23 March 1994 and
the applicants' observations in reply were submitted on 30 April 1994.
THE LAW
The applicants complain that Francine's expulsion from the
Netherlands violated their rights under Articles 3, 6, 8 and 13
(Art. 3, 6, 8, 13) of the Convention.
1. The Government, referring to Application No. 16586/90
(McCallister and Lorance v. the Netherlands, Dec. 1.12.93,
unpublished), submit in the first place that Francine's complaints are
inadmissible, since the application has been introduced on her behalf
by her aunt, whilst it does not appear that her aunt may act on her
behalf and it has not been established that Francine authorised her
aunt to do so.
The applicants submit that the Government wrongly considers that
Francine must authorise her aunt to act on her behalf. According to
the applicants Francine is a very young person, who is not capable of
undertaking the necessary steps herself and that, therefore, it should
be possible that a near relative represents such a person before the
Commission.
The Commission recalls that in the proceedings before the
Commission it is normally required that a representative submits a
proper authority from the applicant authorising the latter to submit
an application to the Commission and that, insofar as an application
is introduced by a minor, it would normally be for the parent or
guardian of that minor to introduce an application on his or her
behalf, at least where the child has not attempted to introduce an
application personally (cf. No. 5076/71, Dec. 23.3.72, Collection 40
p. 64; No. 9580/81, Dec. 13.3.84, D.R. 36 p. 100; and No. 10031/82,
Dec. 3.10.84, D.R. 39 p. 158).
The Commission, in view of Francine's tender age, the absence of
a parent or legal guardian of Francine, the swiftness of her expulsion
and her apparent wandering existence since her return to Zaïre, accepts
however, in the particular circumstances of the present case, that she
may be represented by her aunt in the proceedings before the
Commission.
2. Insofar as the applicants invoke Article 6 (Art. 6) of the
Convention, which provision guarantees to everyone, in the
determination of his civil rights and obligations or of any criminal
charge against him, a fair and public hearing within a reasonable time
before an independent and impartial tribunal established by law, the
Commission recalls its constant case-law according to which this
provision does not apply to proceedings concerning entry or residence
permits for aliens (cf. No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205).
It follows that this part of the application must be rejected
under Article 27 para. 2 (Art. 27-2) as being incompatible ratione
materiae with the provisions of the Convention.
3. The applicants complain that Francine's expulsion constituted a
violation of Article 3 and Article 8 (Art. 3, 8) of the Convention both
separately and in conjunction with Article 13 (Art. 3+8+13) of the
Convention.
4. Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government submit that the decision to refuse Francine entry
to the Netherlands did not violate her rights under Article 3 (Art. 3)
of the Convention, neither on the basis of the general situation in
Zaïre nor on the basis of the way she was returned to her country of
origin.
The Government submit that it has not been argued that Francine
would risk a 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.
As to the way in which she returned to Zaïre the Government
submit that Francine 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 her uncle and
her aunt.
The applicants submit that Francine's unaccompanied return to
Zaïre, the failure to make adequate arrangements that she would be met
upon her arrival there and the failure to guarantee her care and
welfare in Zaïre amount to a treatment contrary to Article 3 (Art. 3)
of the Convention.
Having regard to the parties' submissions and the case-law of the
Convention organs, the Commission finds that this part of the
application raises issues of fact and law which can only be resolved
by an examination of the merits. The application cannot therefore be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention. No other grounds for
inadmissibility have been established.
5. Article 8 (Art. 8) of the Convention provides 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."
The Government submit that there has been no interference with
the applicants' family life, since there has never been any family life
between them. In case the Commission would find that Francine's
expulsion interfered with the applicants' family life, the Government
argue that this interference, which is based on the Dutch restrictive
immigration policy, was justified under para. 2 of Article 8 (Art. 8-2)
as being in accordance with the law and necessary in a democratic
society in the interests of the economic well-being of the country.
The applicants submit that Francine 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 also an interference
with a new family life may be contrary to Article 8 (Art. 8) of the
Convention, and that in their case the Government's general reference
to the restrictive Dutch immigration policy is an insufficient basis
for the conclusion that Francine's expulsion was a compelling social
necessity.
Having regard to the parties' submissions and the case-law of the
Convention organs, the Commission finds that this part of the
application raises issues of fact and law which can only be resolved
by an examination of the merits. The application cannot therefore be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention. No other grounds for
inadmissibility have been established.
6. Article 13 (Art. 13) of the Convention reads:
"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."
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 it was and still is open to them
to apply for an authorisation for temporary stay. Moreover, the
applicants disposed of 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.
The applicants submit that the President of the Regional Court
only marginally examined the merits of applicants' request to order
Francine's return to the Netherlands before he rejected it as
inadmissible on the ground that Francine was a minor whereas 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 Francine to await the outcome of the summary
proceedings in the Netherlands, she was deprived of an effective
remedy.
Having regard to the parties' submissions and the case-law of the
Convention organs, the Commission finds that this part of the
application raises issues of fact and law which can only be resolved
by an examination of the merits. The application cannot therefore be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention. No other grounds for
inadmissibility have been established.
For these reasons, the Commission, by a majority,
DECLARES INADMISSIBLE the applicants' complaint that they were
denied access to a court; and,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)