DISSENTING OPINION OF JUDGE DE MEYER

(Translation)

The risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which a person is returned [4] is not the only circumstance in which removal of a foreign national may give rise to an issue under Article 3 of the Convention (art. 3).

What gives rise to such an issue in the present case is the Netherlands authorities ’ "haste" [5] to remove a 9-year-old girl, without taking sufficient care in examining her rather uncertain personal and family circumstances [6] and handing over "all responsibility for her welfare as soon as she had left Netherlands territory to others" [7] .

This was not merely an "attitude" which was "open to criticism" [8] , but was above all, in my opinion, treatment that it is difficult to consider human.

Admittedly, no serious harm seems to have befallen the child so summarily removed, and she was allowed to join the other applicant one year later. So much the better. But that does not retrospectively excuse what happened.

I also consider, for the same reasons, that there was an infringement of both applicants ’ right to respect for their private and family life.

The authorities ’ doubts about the nature of the ties between Francine and Bata Nsona were serious [9] . But because of the girl ’ s age they should have considered the applicants ’ case rather more thoroughly, even though the latter, for reasons known only to themselves, had "resorted to deceit" on arrival [10] .

[1] The case is numbered 63/1995/569/655. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-V), but a copy of the Commission's report is obtainable from the registry.

[4] See paragraph 92 of the judgment.

[5] See paragraph 103 of the judgment.

[6] See paragraphs 10 to 13, 15 and 28 of the judgment.

[7] See Ibid.paragraph 103 of the judgment.

[8] Ibid.

[9] See the paragraphs of the judgment cited in note 3.

[10] See paragraphs 112 and 113 of the judgment.