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. [1] 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. [2] 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. [3] 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. [4] 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. [5] 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.

[1] Ireland v. the United Kingdom, 18 January 1978, § 162, and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006 ‑ IX.

[2] Keenan v. the United Kingdom , no. 27229/95, § 110, ECHR 2001 ‑ III, and Jalloh , cited above, § 68.

[3] Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV, and Selmouni v. France [GC], no. 25803/94, § 96, ECHR 1999 ‑ V.

[4] Campbell and Cosans v. the United Kingdom, 25 February 1982, § 26, Series A no. 48.

[5] Muskhadzhiyeva and Others v. Belgium, no. 41442/07, 19 January 2010, and Kanagaratnam and Others v. Belgium, no. 15297/09, 13 December 2011.