117 3rd meeting – 11-12 June 2013

Appendix 3

( Item H46-1 )

Resolution CM/ResDH(2013) 117

Nunez against Norway

Execution of the judgment of the European Court of Human Rights

(Application No. 55597/09, judgment of 28 June 2011, final on 28 September 2011)

(Adopted by the Committee of Ministers on 1 1 June 2013 at the 1173rd meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State’s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment and noting that no award of just satisfaction was made by the Court in the present (see document DH-DD(2013)433 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Application Nunez against Norway (No. 55597/09)

Consolidated a ction r eport on the e xecution of the j udgment of the European Court of Human Rights d elivered on 28 June 2011

Reference is made to Norway's a ction r eport of 28 February 2012, and subsequent update of 10 August 2012. The Committee of Ministers has requested a consolidated report.

1. Violation of the Convention determined by the Court

The European Court of Human Rights found that there would be a violation of Article 8 of the Convention in the event of the applicant’s expulsion from Norway. The applicant had been expelled with a two year re-entry band, on the grounds of serious breaches of the Norwegian Immigration Act. She had two daughters, born in 2002 and 2003 respectively. In paragraph 84 of the judgment, the Court stated that

Having regard to all of the above considerations, notably the children's long lasting and close bonds to their mother, the decision in the custody proceedings, the disruption and stress that the children had already experienced and the long period that elapsed before the immigration authorities took their decision to order the applicant's expulsion with a re-entry ban, the Court is not convinced in the concrete and exceptional circumstances of the case that sufficient weight was attached to the best interests of the children for the purposes of Article 8 of the Convention.

The applicant was not awarded just satisfaction under A rticle 41 of the Convention.

2. Individual m easures

Following the Court’s Rule 39 decision, the Norwegian Immigration Appeals Board suspen d ed the applicant's obligation to leave Norway. This interim measure was introduced on 30 Oct o ber 2009.

Following the Court's final decision, the Immigration Appeals Board reversed its expulsion decision on 17 November 2011.

An application for family reunification with the applicant's children was lodged on 4 October 2011. The application was denied by the Immi gration Directorate on 1 January 2012, on the grounds that the applicant had not documented her identity. The applicant was requested, in case of appeal, to present identification documents issued to her stated identity.

The decision was appealed on 7 February 2012. The applicant presented a passport as r e quested.

On 16 June 2012, the Immigration Directorate reversed its former decision. Though the r e quirements for family reunification were not met, the Directorate granted the applicant a res i dence permit on humanitarian grounds (Section 38 of the Immigration Act).

The permit is valid for three years. It may be renewed if the requirements are met at the time of application for renewal. In their assessment the Norwegian authorities will take due a c count of their obligations under Article 8 of the Convention and of the considerations that led the Court to the finding of a violation in the instant case.

3. General measures

A summary of the judgment in Norwegian, with a link to the original judgment from the E u ropean Court of Human Rights, was published on the Internet site Lovdata 28 June 2011 . [1]

The Norwegian summaries are written by the Norwegian Centre for Human Rights at the University of Oslo. The Lovdata web site is the principal Internet source for legal information in Norway, and is widely used by all who practice the law profession, including lawyers, civil servants and judges.

On 4 November 2011, t he Ministry of Justice issued instructions [2] to the Immigration Dire c torate regarding expulsion cases affecting children. The instructions address the issues hig h lighted in the Nunez judgment, as well as other developments in legislation and jurisprudence, and are meant to ensure that Norwegian practices are in accordance with the Court’s jurispr u dence.

The Directorate is instructed, specifically, that unreasonably prolonged case processing shall be attached due weight in disfavour of expulsion, as shall a child's particularly strong ties to the parent being considered expelled. Furthermore, the instructions state that earlier disruption and hardship in a child's family life may be a relevant factor in the assessment.

In addition, the Ministry outlines more general principles and considerations to be taken into account in expulsion cases affecting children. Emphasis is given to, e.g. the importance of a thorough assessment of the particular circumstances of each case, and the established princ i ple that the State enjoys a certain margin of appreciation. The Ministry has stated that the i n structions are not expected to result in major changes in Norwegian expulsion practices.

In the light of the above, The Norwegian Government considers Norway's obligations under Art i cle 46 paragraph 1 of the Convention, fulfilled.

Yours sincerely,

Nina E. D. Mørk (p.p.)

Acting Deputy Director General

Sigurd Bordvik

Adviser

[1] http://websir.lovdata.no/cgi-lex/wiftzsok?bas=emdn&emne1=nunez&sok=fast

[2] GI-2011-014, http://www.udiregelverk.no/default.aspx?path=%7BCB4641E6-1F13-4B54-9E39-0893AF2F6CB9%7D . The instructions have not been translated into English.