ITEMID: 001-58304
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF BUSCEMI v. ITALY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 8;Violation of Art. 6-1
JUDGES: Marc Fischbach
TEXT: 8. Mr Buscemi, who is an Italian national, was born in 1949 and lives in Cuneo, where he practises as a doctor.
9. The applicant and his girlfriend, C.F., had a daughter in 1985. Relations between the mother and father had rapidly deteriorated after their daughter was born and the relevant Youth Court had already had to intervene in the past.
10. Custody of the applicant’s daughter was initially awarded to the mother, from whom the applicant had separated in the meantime.
11. On 21 January 1994 the applicant applied to the Turin Youth Court for custody of his daughter to be formally awarded to him, since his ex-girlfriend had already given him custody de facto. She had signed a statement on 30 July 1993 acknowledging the applicant’s right to custody of the child.
12. The Turin Youth Court, presided over by Judge A.M.B., ordered an investigation and on 5 May 1994 decided to place the child in a children’s home. The court applied, inter alia, Article 333 of the Civil Code. At the same time it limited the mother’s access to once a week and the father’s to once a month.
13. On the morning of 3 June 1994 social workers collected the child from school, having informed her teachers, and took her to a home.
14. Immediately afterwards the applicant asked for his daughter to be examined by a neuropsychiatrist, but his request was refused for reasons which are unknown. According to the applicant, his daughter had been ill-treated in the children’s home.
15. On 14 June 1994 the Youth Court appointed of its own motion two experts, one, E.T., a psychologist and the other, S.L., a child neuropsychiatrist, whose names had already appeared in the decision of 5 May 1994. It appears from a certificate issued by the Cuneo Chamber of Commerce that E.T. had also been a street trader in second-hand clothes and other items since 10 January 1994. Both experts were instructed to establish the state of relations between, firstly, the parents themselves and, secondly, the parents and their daughter, with a view to determining, among other things, which parent should be awarded custody of the child. To that end the court gave the experts the following directions, inter alia:
“The experts are instructed to ascertain, once they have carried out all necessary investigations, examined the documents in the proceedings, met the parents, the maternal grandmother and the child …, the parents’ personality type and the relationship between them, including how the situation is likely to develop in the future; …”
16. The two experts agreed to each meet only one of the parents.
17. The applicant first appealed against the decision of 5 May 1994 on 11 June 1994, but his appeal was dismissed by the Turin Court of Appeal (Youth Division) on 28 July 1994. The Court of Appeal upheld the Youth Court’s decision on the ground that the child needed to be placed in a calmer environment so that the psychological difficulties she was experiencing as a result of the conflict between her parents could be studied. The Court of Appeal also stated that two privately appointed experts should be allowed to observe the court-appointed experts’ work.
18. The experts commissioned by the applicant were never consulted in the proceedings conducted by the court’s experts and were unable to be present at the interview with the child. One of them did, however, take part in a meeting with the court’s experts to assess the material they had gathered during their assignment.
19. The court-appointed experts’ report was filed on 3 October 1994. It concluded, among other things, that neither parent seemed fit to give the child adequate emotional support or to have a balanced relationship with her. The experts also highlighted the fact that it had been impossible to assess the applicant’s personality fully since he had failed to take part in all the diagnostic psychological tests.
20. On 10 October 1994 one of the privately commissioned experts filed his report with the Youth Court registry. The report criticised the conclusions of the court-appointed experts’ report, particularly the finding that the applicant cared little for the welfare of his daughter or her mother. A second privately commissioned expert report expressed the same view.
21. On 15 October 1994 the applicant wrote to the court complaining that one of its experts had never met him but had nonetheless signed the report containing assessments relating directly to his personality, and that the privately commissioned experts had not been invited to attend the interview with the child by the court-appointed experts. He submitted that the best solution would be for custody of the child to be awarded to him.
22. On 3 November 1994 the Youth Court, presided over by C.L., confirmed the decision to place the child in a children’s home and ordered the social services to arrange a series of meetings between the child and her mother with a view to returning custody to the mother. The applicant, on the other hand, was authorised to visit his daughter only once a month for two hours and only inside the home.
23. On 2 December 1994 the applicant’s daughter was injured in a road accident. The applicant was informed of this on 7 December 1994 and went to visit his daughter the next day. Noting that she had some fairly serious injuries and being of the view that the local hospital was not equipped to carry out the necessary tests, he applied to the local magistrate (pretore) on 9 December 1994 to authorise him to take his daughter himself to Cuneo Hospital, which was better equipped. The magistrate considered the situation to be urgent and authorised the applicant to take his daughter to Cuneo Hospital accompanied by a member of staff from the home. However, on the same day the President of the Turin Youth Court decided that the father had no authority to intervene. He instructed the children’s home to submit the child to such tests as the home judged appropriate, in consultation with the mother. The President of the court reiterated that he had made a decision authorising the applicant to see his daughter for only two hours a month and that the magistrate was clearly unaware of that decision.
24. On 12 December 1994 the applicant appealed against the Youth Court’s decision of 3 November 1994. He submitted, inter alia, that only one of the court experts had met him despite the court’s instruction to them to prepare the expert report jointly. Furthermore, the privately commissioned expert had not been informed by the court-appointed experts of the date of their interview with the child, nor had he taken part in the court’s deliberations on 3 November 1994.
25. In the meantime the applicant had requested the court to award custody of the child to her mother and to review its ruling on access rights. His application was dismissed on 13 December 1994. On 18 January 1995 the applicant appealed against that decision, referring once again to the shortcomings of the court-appointed experts’ report and reiterating his request for custody of the child to be returned to the mother.
26. In two separate decisions of 14 February 1995 the Turin Court of Appeal declared the first appeal inadmissible on the ground that it had been lodged out of time and dismissed the second one.
27. In the second decision the Court of Appeal noted that the proceedings were still pending, including the application made by the mother in the meantime for the father’s parental rights to be forfeited. In particular, as the lower court had observed, certain factors at the root of the case subsisted, such as the mother’s opposition to taking her daughter back to live with her and the serious psychological problems affecting the girl’s relationship with the applicant. Having regard, therefore, to the temporary nature of the child’s placement in a children’s home, the Court of Appeal considered premature any decision altering the current position. The court did not rule on the applicant’s allegations regarding the conduct of the experts’ investigations.
28. On 23 May 1995, following a series of reports by the social services, the Youth Court authorised the girl’s mother to stay with her daughter on Saturdays and Sundays.
29. On 22 June 1995 the applicant applied to the Court of Appeal again, requesting that in view of his daughter’s increasing anxiety in the home, she be removed as a matter of urgency and entrusted either to his care or to her paternal grandmother’s.
30. On 3 August 1995 the Court of Appeal dismissed that application. It found, among other things, that the paternal grandmother had in the past refused to take the child into her care and that the applicant had not shown that her attitude had changed. It also noted that since being placed in the home, the child no longer suffered from the fits of hysteria which she had had when living with her mother, was seeing the applicant more often and had made no further request to leave the home. The Court of Appeal also pointed out that according to the social services’ report of 13 June 1995, the girl had, moreover, refused to spend two weeks by the sea with the applicant. Lastly, the court held that if the child were to go to her paternal grandmother, that would distance her from her mother, whereas she should be encouraged to resume a relationship with her mother despite the latter’s limitations and her inability to demonstrate real affection for her daughter. Indeed, the child had clearly expressed a desire to go back to her mother.
31. On 9 August 1995 the Youth Court revoked its decision of 5 May 1994 and ordered custody of the child to be returned to the mother. It also limited the applicant’s access to once a month in a neutral place to be agreed with the social services.
32. The applicant applied to the court on 5 September 1995, expressing his satisfaction with the decision to remove his daughter from the home, but complaining of the decision to maintain restrictions on his access rights.
33. On 23 October 1995 the Court of Appeal allowed his application in part and ordered that the applicant’s access should be increased from once to twice a month.
34. On 11 July 1996 the Youth Court authorised the child to stay with her paternal aunt for the holiday, from 19 July to 5 August 1996.
35. On 24 October 1996 the court granted the applicant the right to see his daughter one afternoon a week. The court stressed, however, that relations between the social services and the applicant were extremely problematical, because the latter kept sending them written requests but showed no real willingness to enter into a dialogue.
36. The applicant appealed, seeking increased contact with his daughter, but his appeal was dismissed by the Court of Appeal on 28 January 1997. Its decision was based on a psychiatrist’s report of 16 December 1996, according to which the child’s mental condition had greatly deteriorated and there was a risk that she would have a mental breakdown. The fact that the girl described her parents as mentally deranged and wanted to return to the home showed how precarious her mental stability was. The Court of Appeal concluded that the child was above all in need of psychological care and certainly not of more frequent contact with her father.
37. The applicant had in the meantime filed complaints against the court-appointed experts with the Principal Public Prosecutor at the Court of Cassation and the Public Prosecutor’s Office at the Turin District Court. He submitted that the court experts had performed their task negligently, that they had failed to contact the privately commissioned experts and were consequently guilty of a failure to discharge one of their obligations (omissione d’atti d’ufficio) under Article 328 of the Criminal Code. The second complaint was struck out on 22 June 1996 on the ground that, in the absence of malicious intent, it concerned problems regarding the experts’ method of conducting their investigations, which it fell to the judge ordering the expert report to assess after hearing submissions from the parties and their experts. The District Court also pointed out that it had been for the privately commissioned expert to take action and contact the court-appointed experts. No action was taken on the first complaint.
38. On 24 June 1994 the Italian daily La Stampa published an article containing statements by the President of the Turin Youth Court, C.L., about the court’s child-custody work. In that article C.L. used the following expressions, among others:
“We are not child-snatchers.”
“Our role is to release children from their suffering.”
39. On 11 July 1994 the same daily published a letter signed by the applicant which was also a reply to the first statements made by C.L. The applicant related the episode in which his daughter had been placed in a children’s home and made the following comments, among others:
“The act in itself is one of sequestration or, at the very least, violence towards children. Whether that act should not be considered as violence or sequestration on the ground that a court is involved is quite another question.”
“This little girl suffered shock and emotional stress to a cruel degree.”
“Clearly the cruelty of the exercise cannot fail to have tarnished the State’s image and lessened confidence in an institution which should guarantee the greatest respect for human beings.”
“Among other things, the inappropriateness of the method used derives from the fact that an urgent decision was not implemented until a month after it had been taken.”
“In such a case I doubt whether the President, Judge L., ... can say ‘we have released a child from its suffering’ or ‘we are not child-snatchers’.”
40. In a letter published in La Stampa on 8 August 1994 the President of the court replied. Among other things, C.L. stated:
41. In a letter published in La Stampa on 5 September 1994 the applicant responded to C.L.’s letter, complaining that the judge had not only called him a liar, but had also revealed confidential information about his case, which in a small provincial town such as Cuneo had made it easy to identify the persons involved and had left people feeling puzzled.
42. On the same date La Stampa also published a letter from a group of the applicant’s colleagues expressing their solidarity with him.
43. On 21 November 1994 the applicant asked for C.L. to be replaced by a different judge in the custody proceedings in respect of his daughter. He alleged that C.L. was biased on account of the heated exchange of views they had had in the press.
44. In an order of 1 December 1994 the Youth Court dismissed the applicant’s challenge for being out of time. The court held that, quite apart from the fact that the ground relied on by the applicant did not appear among those formally provided for in Article 51 of the Code of Civil Procedure, the application had in any event been made out of time since it should have been filed before the date set for the decision (taken on 3 November 1994 - see paragraph 22 above). Besides, the applicant could have foreseen that C.L. might preside over the court, since in the event that more than the required number of judges was available, the most senior member would act as President and the applicant had known that C.L. was a member of the division which would be trying his case. At all events, as the decision had already been taken, the applicant had a remedy in ordinary proceedings, namely lodging an appeal, for submitting that complaint.
45. Following the statements made by C.L. in his letter published on 8 August 1994, the applicant had also lodged a complaint with the Public Prosecutor’s Office at the Milan District Court. Proceedings on that complaint were officially discontinued on 22 March 1995 as the preliminary investigating judge at the Milan District Court found that C.L. had confined himself to replying to the applicant’s first letter, correcting the inaccuracies in the applicant’s allegations and stressing that the conduct of all those involved in the case had been right and proper. The only offensive comments, in the judge’s view, were those the applicant had directed at C.L., whom he had called a “child-snatcher”. C.L.’s reply had been appropriate and moderate and had not disclosed any confidential information acquired in the course of his duties as it would not in any event have been possible to identify the persons involved in the case. It was rather the applicant who had disclosed the circumstances in which the child had been removed from her mother’s custody. There had thus been no injury to the reputation or honour of the applicant.
46. The applicant also applied – unsuccessfully – to the National Council of the Judiciary (Consiglio superiore della magistratura).
47. Under Article 30 of the Constitution,
“Parents have a duty to maintain, educate and bring up their children, including children born out of wedlock.
Where the parents are incapable of performing those duties, the legislature shall make appropriate provision.
...”
48. Under Article 333 of the Civil Code,
“If the conduct of one or both parents is not such as to justify forfeiting parental authority ..., but is harmful to the child, the court may, if appropriate, take any necessary measure and may also order the child to be removed from the family home. Such measures may be rescinded at any time.”
49. Mr Buscemi applied to the Commission on 23 June 1995. He alleged, among other things, an infringement of his right to respect for his family life on account of his daughter’s having been placed in a children’s home, bias on the part of the President of the Turin Youth Court and injury to his reputation and to his family life as a result of the statements made by him to the press (Articles 8 and 6 § 1 of the Convention).
50. The Commission declared the application (no. 29569/95) admissible on 16 April 1998. In its report of 27 October 1998 (former Article 31 of the Convention), it expressed the unanimous opinion that there had been a violation of Article 8 on account of the manner in which the experts had conducted their investigations and of Article 6 § 1 on account of the President of the Youth Court’s statements to the press.
51. The applicant said that the measures taken by the Turin Youth Court had contributed to the almost irretrievable breakdown of his relationship with his daughter. He alleged in particular that the court had based its decision on an expert report which was unfounded and procedurally flawed. He submitted that there had been a violation of Article 8 of the Convention, which provides:
“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.”
52. The Government disputed that submission. The Commission found that although the restrictive measures taken by the Italian authorities against the parents, including the applicant, had been based on relevant and sufficient grounds, there had been a violation of Article 8 on account of the manner in which the expert report ordered by the court had been prepared.
53. The Court points out that the enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see the Bronda v. Italy judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1489, § 51). In the instant case the restrictive measures taken by the Italian authorities against the applicant amounted to an interference with his right to respect for his family life. Such interference will constitute a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”.
54. The Court is of the view that the interference was in accordance with the law, in particular with Article 333 of the Civil Code, and pursued the legitimate aim of protecting the rights of others. The question remains as to whether that interference was also “necessary in a democratic society”.
55Reports 1998-VII, pp. 3095-96, §§ 30-34) and did not exceed the margin of appreciation afforded to them under paragraph 2 of Article 8.
56. Accordingly, there has not been a violation of Article 8 arising from the measures taken to remove the child from the applicant.
57. The Court does not agree with the applicant’s submission, which was accepted by the Commission, that he has been the victim of a violation of Article 8 on account of the court-appointed experts’ conduct of their investigations.
58
59. In that connection the Government submitted that, while it was true that in custody proceedings the parties had more limited powers of intervention than in ordinary proceedings (owing to the non-contentious nature of the proceedings, which were pursued exclusively with the aim of protecting children’s interests), it should not be overlooked that the applicant had always been given a hearing, that he had always been informed of all matters concerning the case and had been able to comment on them. As regards, in particular, the allegation that one of the court-appointed experts also carried on business as a street trader, the Government disputed the veracity of that allegation and pointed out that an assessment of the professional competence of an expert could only be based on work done in that capacity. The Government submitted, moreover, that a violation could not be found merely on the basis of the manner in which the experts had conducted their investigations when, as the Commission had found in its report, the interference with the applicant’s family life was in itself justified.
60. The Court considers as the Government did, that the foregoing principles regarding the parents’ role in the decision-making process (see paragraph 58) were not breached in the instant case. The applicant cannot be said to have played no role in the decision-making process. On the contrary, he took an active part in it; he was always able to submit his arguments in the national courts and to study all the documents. Furthermore, one of the privately commissioned experts had been able to discuss with the court-appointed experts the results of the tests conducted in the course of their investigations. The decision-making process as a whole does not appear to have been unfair, and excessive weight should not be attached to the fact that one of the two experts was also a street trader (see paragraph 15 above). In that connection the Court notes that the applicant did not expressly question that expert’s professional competence as a psychologist. The Court considers that the fact that the expert was also a street trader does not detract from his expertise as a psychologist.
61. As regards the complaint that one of the court-appointed experts did not interview the applicant, the Court considers that the court decision setting out the purpose of the expert opinion was worded in terms sufficiently general to allow the experts some discretion as to the precise manner in which their report would be prepared. In any event, the results of the experts’ work were examined by both experts jointly. In this context account should also be taken of the fact that the applicant failed to participate in all the diagnostic psychological tests (see paragraph 19 above).
62. In the Court’s view, it might perhaps have been desirable for the privately commissioned experts to be more fully involved in the various stages of the court-appointed experts’ assignment and not only at the meeting to assess the results, although there is nothing in the case file to suggest that the privately commissioned experts actually asked to be involved further. Nevertheless, the circumstances of which the applicant complains do not suffice in themselves to have adversely affected the fairness of the proceedings, which were based not only on the expert report in question but also on a series of social-services reports (see, inter alia, paragraph 28 above).
63. In sum, the manner in which the expert report was prepared did not breach Article 8.
64. The applicant complained of bias on the part of the President of the Turin Youth Court, C.L., and submitted that his case should not have been heard by a court presided over by a person with whom he had had an argument in the press. He alleged that this had given rise to a violation of Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”
65. The Government considered that there could be no doubt as to the President of the court’s impartiality. The decisions adopted by the court presided over by C.L. had not subsequently been varied and the proceedings on the complaints which the applicant had filed against the President had been discontinued. Furthermore, it was the applicant who had started the controversy with his letter in La Stampa portraying the court’s work in an unfavourable light and he had been supported in that action by the journalist responsible for the column. The President of the court had therefore simply considered it his duty to clarify matters, having regard in particular to the risk of misinformation on account of the relative importance given by the daily in question to the applicant’s story.
66. The applicant disputed that argument.
67. The Court stresses, above all, that the judicial authorities are required to exercise maximum discretion with regard to the cases with which they deal in order to preserve their image as impartial judges. That discretion should dissuade them from making use of the press, even when provoked. It is the higher demands of justice and the elevated nature of judicial office which impose that duty.
68. The Court considers, as the Commission did, that the fact that the President of the court publicly used expressions which implied that he had already formed an unfavourable view of the applicant’s case before presiding over the court that had to decide it clearly appears incompatible with the impartiality required of any court, as laid down in Article 6 § 1 of the Convention. The statements made by the President of the court were such as to objectively justify the applicant’s fears as to his impartiality (see, mutatis mutandis, the Ferrantelli and Santangelo v. Italy judgment of 7 August 1996, Reports 1996-III, p. 952, §§ 59 and 60).
69. There has accordingly been a breach of Article 6 § 1 of the Convention.
70. The applicant also complained of a violation of Article 8 of the Convention arising from C.L.’s statements published by La Stampa and alleged that injury had been caused to his reputation and his family life.
71. The Government disputed that submission.
72. The Court considers that no injury to the applicant’s right to respect for his private and family life can be established under this head, having regard to the fact that in his letter of 11 July 1994 the applicant had himself disclosed his identity.
73. Accordingly, there has not been a violation of Article 8 of the Convention in this regard.
74. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
75. The applicant sought, firstly, 500,000,000 Italian lire (ITL) in compensation for pecuniary damage, relying in particular on the damage done to his professional image as a surgeon. He also claimed ITL 2,000,000,000 in compensation for non-pecuniary damage.
76. The Government did not make any submissions on the issue.
77. The Court notes that it has no evidence on which to find that the applicant sustained pecuniary damage. As to non-pecuniary damage, it considers that the finding of a violation of Article 6 § 1 of the Convention constitutes sufficient compensation. In that connection, it takes account, inter alia, of the fact that the applicant significantly contributed to fuelling the controversy concerning him in the press.
78. The applicant sought primarily reimbursement of the expenses incurred in the proceedings in the domestic courts in the sum of ITL 3,105,000 (the applicant produced fee notes for the custody proceedings and a breakdown of the amounts paid for the privately commissioned expert reports).
79. The Court notes that the documents supplied by the applicant relate only to the expenses incurred in connection with the placement of his daughter – the applicant did not claim reimbursement of any amounts incurred to prevent or have redressed a violation of Article 6 § 1 of the Convention – and considers, in the light of its conclusions regarding Article 8 of the Convention, that it is not necessary to award the applicant reimbursement under this head.
80. As regards the expenses incurred before the Convention institutions, the Court, making its assessment on an equitable basis as required by Article 41 of the Convention and having regard to the fact that the applicant presented his own case, awards him ITL 1,000,000 for costs and expenses.
81. According to the information available to the Court, the statutory rate of interest applicable in Italy at the date of adoption of the present judgment is 2.5% per annum.
Done in French, and notified in writing on 16 September 1999, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Mr Bonello is annexed to this judgment.
M.F.
E.F.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-107735
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF ZAHID MAMMADOV AND OTHERS v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Julia Laffranque;Khanlar Hajiyev;Peer Lorenzen
TEXT: 5. All of the applicants have either tenancy rights to their flats on the basis of occupancy vouchers (yaşayış sahəsi orderi) issued by the relevant executive authorities or ownership rights to them on the basis of an ownership certificate issued by the competent domestic authority (see Appendix – Table I).
6. In all five cases, the applicants’ flats were unlawfully occupied by internally displaced persons (“IDPs”) from different regions of Azerbaijan under occupation by Armenian military forces following the ArmenianAzerbaijani conflict over Nagorno-Karabakh.
7. The applicants lodged separate civil actions before the domestic courts seeking the eviction of the IDPs from their flats.
8. On the dates indicated in the Appendix (Table I), the applicants’ claims were granted by different domestic courts, which ordered the eviction of the IDPs from their flats.
9. The respective judgments became final and enforceable. However, the IDP families refused to comply with those judgments and despite the applicants’ complaints to various authorities, the judgments were not enforced.
10. The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57858
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF POITRIMOL v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1+6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;John Freeland;R. Pekkanen
TEXT: 7. Mr Bernard Poitrimol married Miss Catherine Bisserier in February 1973. There were two children of this marriage, born on 23 January 1974 and 18 February 1975.
8. On a petition by the applicant’s wife, the Paris tribunal de grande instance granted a divorce on 5 January 1982 on the grounds of fault by her husband, awarded her custody of the children and allowed Mr Poitrimol the right to have them visit him or stay with him.
9. On 20 February 1984 the Paris Court of Appeal varied that decision. It pronounced divorce on the grounds of fault by both spouses and upheld the other provisions after studying a social inquiry report on the children’s living conditions with their mother.
10. The applicant did not appeal on points of law against the Court of Appeal’s judgment but lodged a complaint against his former wife alleging that she had committed forgery and uttering during the divorce proceedings. On 7 July 1988 the Paris Court of Appeal sentenced Mrs Poitrimol to a fine of 10,000 French francs (FRF) for having produced four false certificates supposedly from her employers.
11. In September 1984, when exercising his right of access to the children, the applicant had left French territory and taken his two children to Turkey.
12. Mr Poitrimol applied to the matrimonial causes judge at the tribunal de grande instance in Marseilles, where the applicant’s former wife now lived, for custody of the children. On 24 October 1985 the judge awarded custody to both parents jointly and made an order that the father should return at least temporarily to France, within three months at most, in order that the children should be interviewed. If, for reasons other than circumstances beyond his control, the applicant did not comply with the time-limit, the mother would continue to have sole custody.
13. On 8 October 1984 Mrs Poitrimol lodged a complaint alleging failure to return children.
14. On 19 December 1985 the investigating judge committed the applicant for trial at the Marseilles Criminal Court.
15. Mr Poitrimol did not return to France but sought leave to avail himself of Article 411 of the Code of Criminal Procedure (see paragraph 23 below). The court gave leave and he was represented at the trial on 3 March 1986 by two counsel, who filed pleadings in which they asked for their client and his children to be examined on commission and, in the alternative, for him to be acquitted. They submitted that the defendant had acted under irresistible mental duress owing to the risk of harm to the physical health and psychological balance of his children, having regard to the behaviour of their mother and her lovers.
16. In a judgment delivered after proceedings deemed to be inter partes the court sentenced him on the same day to a year’s imprisonment and issued a warrant for his arrest.
17. On 5 March 1986 counsel for Mr Poitrimol lodged an appeal and the prosecution immediately did likewise.
18. Although he had been summoned to the hearing on 10 September 1986, the applicant did not appear in person. His lawyer, Mr Schmerber, said that his client wished to be tried in absentia and defended in court by his counsel; he proceeded to make submissions similar to those he had filed at the trial. In an interlocutory judgment the Aix-en-Provence Court of Appeal adjourned the case to 4 February 1987 and, under the third paragraph of Article 411 of the Code of Criminal Procedure, ordered that Mr Poitrimol should be summoned again as it considered his presence in court to be necessary.
19. The applicant did not attend the new hearing, but Mr Schmerber did and made supplementary submissions asking the court to uphold his pleadings of 10 September and authorise him to represent his client.
20. On 25 February 1987, pursuant to Article 410 of the Code of Criminal Procedure (see paragraph 23 below), the Court of Appeal, taking its decision after proceedings deemed to be inter partes, delivered a judgment in which it refused the latter request on the following grounds:
"While a defendant summoned for an offence punishable, as in the instant case, by a term of imprisonment of less than two years may, by letter to the presiding judge, apply to be tried inter partes in his absence but represented by counsel, pursuant to the first and second paragraphs of Article 411 of the Code of Criminal Procedure, it is a principle, and is apparent from the general scheme of the Code of Criminal Procedure, that this is a right which does not apply where, as in Mr Poitrimol’s case, a warrant has been issued for the defendant’s arrest and the defendant has absconded and is accordingly not entitled to instruct counsel to represent and defend him ...;
That being so, the Court will try the case on the merits without the defendant, Bernard Poitrimol, being able to be represented by Mr Schmerber."
It also ruled that the pleadings of 10 September 1986 were inadmissible and upheld the impugned judgment in its entirety.
21. Through a member of the Conseil d’Etat and Court of Cassation Bar the applicant appealed on points of law against the Court of Appeal’s judgment. In substance he argued that Article 411 previously cited was incompatible with the Convention.
On 21 December 1987 the Court of Cassation declared the appeal inadmissible on the grounds that a convicted person who had not surrendered to a warrant issued for his arrest was not entitled to instruct counsel to represent him and lodge an appeal on points of law on his behalf against his conviction.
22. Mr Poitrimol submitted a petition for pardon, which was rejected by the French President on 21 November 1989.
23. The main provisions of the Code of Criminal Procedure mentioned in the case are the following:
"An accused on whom a summons has been served personally in the proper manner must appear unless he provides an excuse that is accepted as valid by the court before which he has been summoned. An accused shall be under the same obligation where it is established that, even though the summons was not served on him personally, he was made aware by the means provided for in Articles 557, 558 and 560 that he had been properly summoned.
If these conditions are satisfied, an accused who fails to appear and has not been excused from doing so shall be tried as if he were present."
The Court of Cassation has held this provision to be compatible with the Convention (Beltikhine, 16 December 1985) but sometimes quashes judgments in which no ruling has been made on whether there was a valid excuse as argued by the defendant (Grenier, 9 June 1993) or no finding made as to whether the defendant had been made personally aware of the date of the hearing (Tourtchaninoff, 10 June 1992).
"An accused summoned in connection with an offence punishable by a fine or a term of imprisonment of less than two years may, by letter to the presiding judge which shall be placed in the file on the proceedings, apply to be tried in absentia.
In that case his counsel shall be heard.
However, if the court considers it necessary for the accused to appear in person, he shall be summoned again, at the instance of the prosecution, to a hearing on a date which shall be fixed by the court.
An accused who fails to comply with this summons shall be tried as if he were present.
He shall likewise be tried as if he were present in the eventuality provided for in the first paragraph of this Article."
According to the case-law of the Court of Cassation, where an accused who fails to appear and has not been excused from doing so is tried as if he were present, his counsel can neither be heard nor file pleadings (Criminal Division, 29 October 1970, Bulletin criminel (Bull.) no. 284; 5 May 1970, Bull. no. 153).
It is not possible to apply to a court to set aside a judgment it has given in the accused’s absence and rehear the case (opposition) (see Articles 489 and 512 below) where the judgment was given after proceedings deemed to have been inter partes.
"An accused who appears may instruct counsel to assist him.
If he has not done so before the hearing and nevertheless asks to be assisted, the presiding judge shall assign counsel officially.
Counsel may be chosen or appointed only from among the members of a Bar ...
The assistance of counsel is compulsory where an accused suffers from an infirmity of a kind likely to jeopardise his defence."
"A judgment in absentia shall be null and void in all its provisions if the accused applies to the court which gave it to set it aside and rehear the case.
..."
"The rules laid down in respect of the Criminal Court shall apply in the Court of Appeal ..."
"Notice of an appeal on points of law must be given to the registrar of the court which has delivered the decision being challenged.
It must be signed by the registrar and by the applicant himself or by an attorney (avoué) of the court that has given judgment or by a specially authorised agent: in the last-mentioned case, the authority to act shall be annexed to the document drawn up by the registrar ...
..."
"If a person sentenced to a term of imprisonment of more than six months has not surrendered to custody and has not obtained from the court which convicted him exemption, on or without payment of a surety, from the obligation to surrender to custody, his right to appeal on points of law shall be forfeit.
The memorandum of imprisonment or the judgment granting exemption shall be produced before the Court of Cassation not later than the time when the case is called for hearing.
For his appeal to be admissible, it is sufficient for the applicant to establish that he has surrendered to custody at a prison, either in the place where the Court of Cassation sits or in the place where sentence was passed; the chief warder of that prison shall take him into custody there on the order of the Principal Public Prosecutor at the Court of Cassation or of the head of the public prosecutor’s office at the court of trial or appeal."
The Court of Cassation has already decided on several occasions that it follows from the general principles underlying the Code of Criminal Procedure that a convicted person who has not surrendered to a judicial warrant for his arrest and has evaded execution of it is not entitled to appeal on points of law against the decision whereby he was convicted (Criminal Division, 30 November 1976 and 26 June 1978, Juris- Classeur périodique 1980, II, 19437; 24 April 1985, Bull. no. 157; 10 December 1986, Recueil Dalloz-Sirey 1987, p. 165). It has pointed out, however, that the situation may be different where a convicted person can show that circumstances made it impossible for him to surrender to custody in good time (Criminal Division, 21 May 1981, Bull. no. 168).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-95784
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PETROIU AND OTHERS v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicants were born in 1932, 1944, 1957, 1955, 1968, 1928, 1925, 1932, 1955, 1945, 1942 and 1944 respectively. They lived in Bucharest and Ploieşti.
5. On an unknown date in the 1960s a property situated in Bucharest at 6 Theodor Aman Street, belonging to H.P., was seized by the State under Decree no. 409/1955 and Council of Ministers Decision (HCM) no. 8/1960. The applicants together with E.P. are H.P.'s heirs of different degrees. According to them, the property consisted of an 824 sq. m plot of land with a building on it.
6. By three letters of 22 and 28 July 1996 the heirs of H.P. sought from the H. company, a State-owned company responsible for the management of property belonging to the State, recovery of the immovable property situated in Bucharest at 6 Theodor Aman Street.
7. On 9 December 1996 the H. company sold Apartment no. 1+2 of that building and 59.79 sq. m of appurtenant land to the then tenants under Law no. 112/1995.
8. On 5 June 2001 the applicants Florica-Maria Petroiu, Maria-Alexandra Sterian, Ena Rizescu (Georgescu), Constantin Petroiu, Florin-Constantin Stăncescu, Mircea-Constantin Sterian and Doru Dănuţ Dumitru Popescu claimed restitution under Law no. 10/2001 for Apartments 1+2 and 3, with the appurtenant land, situated at 6 Theodor Aman Street. On 7 February 2002 the applicants Lidia Peicev and Maria Peicev claimed restitution of the same apartments, with 796 sq. m of appurtenant land. It appears from the file that they did not receive any answer.
9. On 7 August 2002 all the applicants except Mrs Mihaela-Iuliana Vintilescu, Mrs Ana-Maria Apetrei and Mrs Paraschiva Vintilescu, together with M.C.V. and E.P., brought court proceedings to have the sale declared null and void. The plaintiffs, as heirs of H.P., considered that the State had no title to that property and invoked the provisions of section 46 § 2 of Law no. 10/2001.
The applicants Mihaela-Iuliana Vintilescu, Ana-Maria Apetrei and Paraschiva Vintilescu are the heirs (wife and daughters) of M.C.V. who, according to a certificate of inheritance, died on 15 April 2002.
10. On 15 May 2003 the Bucharest Court of First Instance, in the operative part of its judgment, dismissed as groundless the action introduced by the applicants Florica-Maria Petroiu, Constantin Petroiu, Florin-Constantin Stăncescu, Maria Peicev, Lidia Peicev, MirceaConstantin Sterian, Maria-Alexandra Sterian and Doru Dănuţ Dumitru Popescu. The court acknowledged that the plaintiffs were the heirs of H.P., but considered that they had not proved that the State had no title to the seizure. Therefore it held that since the State had a valid title, the case came under the provisions of section 46 § 4 of Law no. 10/2001, and considered that the sale had been lawfully performed. The court also declared null and void the action introduced by the applicant Ena Rizescu (Georgescu) and by E.P., for lack of signature.
The judgment made no reference to the plaintiff M.C.V., except to mention him among the plaintiffs who had lodged the action.
11. All the applicants appealed. However, the only reasoned appeal was that of the first applicant, who had lodged it in the name of all the plaintiffs, alleging that the seizure had been unlawful, that the sale had been performed in bad faith and that they had claimed that property before the sale.
12. On 28 June 2004 the Bucharest County Court, in the operative part of its judgment, allowed the appeal by all the applicants and varied the first-instance judgment in part by upholding the action lodged by the applicants Florica-Maria Petroiu, Constantin Petroiu, Florin-Constantin Stăncescu, Maria Peicev, Lidia Peicev, Mircea-Constantin Sterian, MariaAlexandra Sterian and Doru Dănuţ Dumitru Popescu and by declaring the sale null and void. The court found that the two normative acts (see paragraph 5 above) concerned the granting of orders and medals and the reorganisation of transportation of goods and passengers, therefore the State had no valid title to that seizure. It also considered that the then tenants had been in bad faith when they bought that apartment.
It is not mentioned in that judgment whether the applicants MihaelaIuliana Vintilescu, Ana-Maria Apetrei, Paraschiva Vintilescu and Ena Rizescu (Georgescu) had made any reference in their appeal to the fact that the previous judgment had not mentioned M.C.V. either in its operative part or in its reasoning, or that it had declared their action null and void.
13. The defendants lodged a further appeal on points of law, alleging that the parties to the sale had been in good faith, as provided by section 46 of Law no. 10/2001.
14. On 4 April 2005 the Bucharest Court of Appeal, in the operative part of a final decision, allowed the appeal by the opposing parties, varied the previous judgment in part and consequently dismissed the appeal introduced by the applicants against the first-instance judgment. In the reasoning part of the judgment the court relied on section 46 § 2 of Law no. 10/2001 to find groundless the request to have the sale declared null and void, considering that at the time of the sale the then tenants had been in good faith and had not been aware of the “invalidity of the [State's] property title” (nevalabilitatea titlului de proprietate).
15. The relevant legal provisions and jurisprudence are described in the judgments Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, 1 December 2005); and Tudor v. Romania (no. 29035/05, §§ 15-20, 17 January 2008).
16. In particular, section 46 § 2 of Law no. 10/2001 provides that the sale or donation of immovable property unlawfully seized by the State shall be declared null and void, save where these transactions have been concluded in good faith. Section 46 § 4 of the same law provides that a sale or donation of immovable property lawfully seized by the State shall be declared null and void if it has been performed in violation of the imperative provisions of the laws in force at that moment.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-77447
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MUBILANZILA MAYEKA AND KANIKI MITUNGA v. BELGIUM
IMPORTANCE: 1
CONCLUSION: Violations of Art. 3;Violations of Art. 8;Violation of Art. 5-1;No violation of Art. 5-1 (first applicant);Violation of Art. 5-4;No violation of Art. 5-4 (first applicant);Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides;Paul Martens;Sverre Erik Jebens
TEXT: 8. The first applicant was born in 1970 and the second applicant in 1997. They live in Montreal (Canada).
9. The applicants are a mother (“the first applicant”) and her daughter (“the second applicant”). They explained that the first applicant had arrived in Canada on 25 September 2000, where she was granted refugee status on 23 July 2001 and obtained indefinite leave to remain on 11 March 2003.
10. After being granted refugee status, the first applicant asked her brother, K., a Dutch national living in the Netherlands, to collect the second applicant, then five years old, from the Democratic Republic of Congo (“the DRC”), where she was living with her grandmother, and to look after her until she was able to join her.
11. At 7.51 p.m. on 17 August 2002 K. arrived at Brussels National Airport with the second applicant. He did not have the necessary travel and immigration papers for his niece or documents to show that he had parental authority and so he tried, unsuccessfully, to persuade the immigration authorities that the second applicant was his daughter.
He explained to the Belgian authorities that he had been on a trip to Kinshasa to visit his father’s grave and that the first applicant had asked him to bring the second applicant to Europe in order to join her in Canada. The child had been living with a grandmother who was now too old to look after her and the first applicant’s attempts to bring her to Canada lawfully had failed.
12. On the night of 17 to 18 August 2002 the federal police telephoned the first applicant to inform her of the situation and to give her a telephone number where she could ring her daughter. The first applicant explained that she had made an application to the Canadian authorities on behalf of her daughter.
13. On 18 August 2002 the second applicant was refused leave to enter Belgium and directions were made for her removal on the ground that she did not have the documents required by the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980.
On the same day directions were issued for her to be held in a designated place at the border in accordance with section 74/5 of that Act.
Pursuant to that decision the second applicant was detained in Transit Centre no. 127. Her uncle returned to the Netherlands.
On the same day a lawyer was appointed by the Belgian authorities to assist the applicant and he applied for her to be granted refugee status.
14. On 19 August 2002 the Belgian authorities contacted the immigration department at the Canadian embassy in The Hague to request information on the first applicant’s immigration status in Canada. The immigration department informed them that the first applicant had applied for asylum and indefinite leave to remain in Canada. However, the application for asylum made no mention of the second applicant and so did not extend to her.
In the interim, the first applicant lodged an application in Canada for a visa for her daughter.
15. On 20 August 2002 a lawyer, Mr Ma., informed the authorities that he had been instructed to replace the lawyer initially assigned to the second applicant and that he was taking steps to secure leave for the first applicant to bring her daughter to Canada.
16. On 22 August 2002 the Aliens Office enquired informally of the Dutch authorities whether they would be willing to take over the second applicant’s request for asylum under the Dublin Convention, but they refused.
It also asked K. to furnish the addresses of the members of the family in Kinshasa.
17. In a letter to Transit Centre no. 127 dated 23 August 2002, the lawyer thanked the staff at the centre for the friendly welcome they had given to the second applicant and the care with which they had attended to her needs.
18. On 26 August 2002 the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office by e-mail of the first applicant’s former address in Kinshasa and her parents’ address there.
19. On 27 August 2002 the second applicant’s request for asylum was declared inadmissible by the Aliens Office, which refused her leave to enter and gave directions for her removal. The decision stated that she had a right of appeal against the refusal to the Commissioner-General for Refugees and Stateless Persons under the expedited procedure and could apply within thirty days to the Conseil d’Etat for an order setting aside the removal directions.
The second applicant lodged an appeal under the expedited procedure with the Commissioner-General for Refugees and Stateless Persons.
20. On 4 September 2002, in reply to an enquiry from the Aliens Office, the Belgian embassy in the DRC advised that the addresses of the members of the applicant’s family in Kinshasa it had obtained on the basis of information provided by the first applicant were incorrect. The applicants denied that K. had given false addresses.
21. In an e-mail of 23 September 2002, the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office that the first applicant had not yet been granted refugee status in Canada.
22. On 25 September 2002 at the hearing of the appeal under the expedited procedure, the Commissioner-General for Refugees and Stateless Persons upheld the refusal of leave to enter after finding that the second applicant’s sole aim had been to join her mother in Canada and clearly could not form a basis for an application for refugee status. He drew the Minister of the Interior’s attention to the fact that, as a minor, the second applicant was entitled to join her family by virtue of Article 10 of the Convention on the Rights of the Child dated 20 November 1989.
23. On 26 September 2002 Mr Ma. sent a letter to the Aliens Office advising it that the first applicant had obtained refugee status in Canada and had applied to the Canadian authorities for a visa for her daughter. He asked the Aliens Office to place the second applicant in the care of foster parents on humanitarian grounds in view of her age and position until such time as the Canadian authorities had granted her leave to enter. He added that Ms M., an 18-year-old Belgian national, would make a suitable foster parent. He explained that although the child was being well treated, she was very isolated at the centre and at risk of psychological damage as a result of being detained with adult foreign nationals whom she did not know.
The Aid to Young People in the French Community Department, from whom Mr Ma. had sought assistance, supported the proposal.
No reply was received to the request. From information in the case file it would appear that the Aliens Office dismissed the idea on the grounds that it would place the second applicant at risk, as a warrant had been issued in 1998 for the arrest of Ms M.’s father on suspicion of sexual offences against minors and he lived in the same town as Ms M., albeit at a different address. The Aliens Office also considered that there was a very real danger that the child would be taken away by her uncle.
24. In October 2002 the Aliens Office contacted the Office of the United Nations High Commissioner for Refugees (UNHCR), the Red Cross and the Belgian embassy in Kinshasa.
With the embassy’s help it was able, on the basis of K.’s statements, to identify and subsequently locate a member of the second applicant’s family, namely her maternal uncle, B. (a student living on a university campus with five other people in what the embassy described as suitable accommodation and who, according to the applicants, was the sole member of the family still living in the DRC). An official from the Belgian embassy in Kinshasa went to B.’s home and explained the situation to him, but B. told him that he did not have the means to look after the child.
25. On 9 October 2002 the second applicant’s lawyer lodged an application for her release with the chambre du conseil of the Brussels Court of First Instance under section 74/5, paragraph 1, of the Law of 15 December 1980. In the application, he sought an order setting aside the removal directions of 27 August 2002 and an order for the second applicant’s release and placement with Ms M. acting as a foster parent or, failing that, with an institute for young children.
In the interim, he also contacted the UNHCR, which made enquiries of the family in Kinshasa from which it emerged that no one was prepared to look after the child.
26. On 10 October 2002 the Belgian authorities booked a seat on a flight on 17 October 2002 with the same airline as the second applicant had flown with on the outward journey (they cited its obligation under section 74/4 of the Law of 15 December 1980 to transport at its own cost anyone not in possession of the requisite travel papers or who had been removed on lawful grounds to the country from which he had come or any other country prepared to accept him). The UNHCR, Aid to Young People in the French Community Department and the Belgian embassy in Kinshasa were informed.
27. On 11 October 2002 Brussels Crown Counsel informed the Aliens Office of the second applicant’s application and requested the case file, which the Aliens Office supplied on 14 October 2002.
28. According to the Government, B. was informed on 12 October 2002 that his niece would be arriving at 5.45 p.m. on 17 October.
29. In a letter of 15 October 2002, the Aliens Office advised Crown Counsel of its views on the application for the second applicant’s release:
“... the enquiries have enabled the person concerned’s family to be located in Kinshasa. In view of the positive results of the enquiries as a whole, a flight has already been arranged for Thursday 17 October 2002. The child will be met at Kinshasa by her family. A representative from our embassy will also be present. Lastly, we would note that the sole responsibility for the length of the applicant’s detention lies with her uncle, who has been uncooperative and has studiously avoided giving the Aliens Office the family’s address. Accordingly, in the child’s own interest, she should remain in detention until Thursday 17 October 2002, when she can be returned to her own family in Kinshasa.”
On the same day, after receiving confirmation from the Aliens Office that the child was to be removed, the Belgian embassy official in Kinshasa informed B. in the following letter, which was sent by recorded delivery:
“Dear Sir,
I wish to confirm the message which the embassy has received from the Department in Brussels, namely, the return of your niece Mubilanzila Tabitha to Kinshasa (N’Djili) arriving on the Hewa Bora flight at 5.45 p.m. on Thursday 17 October 2002.
Yours faithfully,
...”
30. On 16 October 2002 the chambre du conseil of the Brussels Court of First Instance held that the second applicant’s detention was incompatible with Article 3 §§ 1 and 2 of the Convention on the Rights of the Child and ordered her immediate release. Noting that it had no jurisdiction to authorise her placement in a foster home or an institution, it held that the application was well-founded in part. Its decision was served on the director of Transit Centre no. 127 that same day.
Crown Counsel, who had the right to appeal against that decision within twenty-four hours, informed the director of the Centre by fax the same day that he was reserving his decision whether or not to appeal.
On the same day the UNHCR’s representative in Brussels sent a fax to the Aliens Office requesting permission for the second applicant to remain in Belgium while her application for a Canadian visa was being processed. It drew the Office’s attention to the fact that there did not appear to be an adult in Kinshasa who was able and willing to look after the second applicant, since, according to the information in its possession, B. was still a student. It added that the first applicant had had refugee status in Canada since 23 July 2001, that the second applicant’s father had disappeared in August 2000 and that her twin sister had been taken to Congo-Brazzaville four months earlier.
31. On 17 October 2002 the second applicant was deported to the DRC. She was accompanied by a social worker from Transit Centre no. 127 who placed her in the care of the police at the airport. On board the aircraft she was looked after by an air hostess who had been specifically assigned to accompany her by the chief executive of the airline. The second applicant travelled with three Congolese adults who were also being deported.
There were no members of her family waiting for her when she arrived. The Government explained that after considerable efforts the embassy official had obtained B.’s agreement to come to the airport to meet his niece. However, he had reneged on his promise at the last minute.
32. The parties have not formally established whether or not a member of the Belgian embassy was at the airport, as stated in the Alien Office’s letter of 15 October 2002. The second applicant stayed at the airport until 5.23 p.m. before eventually being collected by Ms T., a secretary at the National Information Agency of the DRC, who offered her accommodation.
On the same day the first applicant rang Transit Centre no. 127 and asked to speak to her daughter. She was informed that she was no longer staying at the Centre and advised to contact the Aliens Office for further details, which she did. The Aliens Office did not provide her with any explanation but suggested she speak to the UNHCR, from whom she learnt of her daughter’s deportation to Kinshasa.
33. On 18 October 2002 the official from the Belgian embassy in Kinshasa went to B.’s home, only to discover that he had disappeared.
On the same day the Belgian authorities received a message from the Canadian embassy in The Hague informing them that the first applicant had been granted refugee status and indefinite leave to remain in Canada with a work permit in 2002 and was consequently entitled to have her family join her.
34. The second applicant left the DRC on 23 October 2002 following the intervention of the Belgian and Canadian Prime Ministers, with the latter agreeing in principle to authorise the reunification of the family. The second applicant travelled to Paris with Ms T. and from there to Canada the same day on a Canadian visa. During the stopover in Paris, Ms T. and the second applicant were accompanied by two officials from the Belgian embassy. The journey was paid for by the Belgian authorities.
The case had attracted considerable attention from the press in the meantime.
35. On 25 October 2002 the airline which had flown the second applicant back to Kinshasa informed the Aliens Office that she had not travelled alone, but with four other aliens who were also being removed. It said that it had arranged for an air hostess to look after her until she was handed over to the authorities in Kinshasa.
36. On 29 October 2002 the first applicant applied to the Canadian authorities for a visa permitting family reunification.
37. At the request of the Aliens Office, the director of Transit Centre no. 127 described the second applicant’s living conditions at the centre in a letter of 23 November 2004. He explained that she had been looked after by two women who were themselves mothers, that she had played with other children, that her uncle and mother had telephoned her nearly every day and that she had been allowed to telephone them free of charge under the supervision of a team of social workers; he added that her lawyer had paid her a number of visits and had brought her telephone cards, confectionary and money, that she had often played outdoors, had watched large numbers of videos, done drawings and arithmetic and had been comforted if she showed any signs of distress after telephone calls from her family. The director also explained that during the removal procedure the second applicant had been accompanied to the embarkation area (more precisely, the federal police checkpoint) by a social worker and that the entire staff at Transit Centre no. 127 were concerned about the welfare of children, particularly unaccompanied minors.
“Administrative decisions may give rise to an appeal under the expedited procedure, an application to reopen the proceedings, a request for security measures to be lifted, an application to an administrative court to have the decision set aside or an appeal to an ordinary court in accordance with the following provisions.
No summary application for an interim order under Article 584 of the Judicature Code will lie against an administrative decision taken pursuant to sections 3, 7, 11, 19, Part II, Chapter II, and Part III, Chapter I bis. ...”
“Aliens against whom a measure depriving them of their liberty has been taken pursuant to sections 7, 25, 27, 29, second paragraph, 51/5(3), fourth paragraph, 52 bis, fourth paragraph, 54, 63/5, third paragraph, 67 and 74/6 may appeal against that measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they reside in the Kingdom or the area in which they have been found.
Aliens held in a designated place at the border pursuant to section 74/5 may appeal against the measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they are being held.
They may renew the appeal referred to in the preceding paragraphs at monthly intervals.”
“The chambre du conseil shall deliver its decision within five working days after the date the appeal is lodged after hearing the submissions of the alien or of his or her counsel and the opinion of Crown Counsel. If the case has been referred to it by the Minister in accordance with section 74, the chambre du conseil must hear submissions from the Minister, his or her delegate or his or her counsel. If it fails to deliver its decision within the time allowed, the alien shall be released.
The chambre du conseil shall review the legality of the detention and of the removal directions but shall have no power to review their reasonableness.
An appeal shall lie against orders of the chambre du conseil by the alien, Crown Counsel and, in the circumstances set out in section 74, the Minister or his or her delegate.
The procedure shall be the same as that applicable under the statutory provisions on pre-trial detention, with the exception of the provisions relating to arrest warrants, investigating judges, prohibitions on communications, release on licence or on bail, and the right to inspect the administrative file.
Counsel for the alien may consult the case file at the registry of the relevant court during the two working days preceding the hearing. The registrar shall notify counsel of the decision by registered letter.”
“If the chambre du conseil decides that the alien is not to remain in custody, he or she shall be released as soon as the decision becomes final. The Minister may order the alien to reside in a designated place either until the removal directions have been carried out or until his or her appeal has been decided.”
“If the Minister decides to prolong the alien’s detention or to keep him or her under arrest pursuant to section 7, paragraph 5, section 25, paragraph 5, section 29, paragraph 3, section 74/5(3), or section 74/6(2), he or she must apply within five working days of that decision to the chambre du conseil with jurisdiction for the area in which the alien is resident in the Kingdom or was found to enable it to determine whether the decision is lawful. If no application is made to the chambre du conseil within that period, the alien shall be released. The remainder of the procedure shall be as stated in sections 72 and 73.”
“§ 1. Any public or private carrier bringing passengers into the Kingdom who are not in possession of the documents required by section 2 or who come within any of the other categories referred to in section 3 shall transport or arrange for the transport of such passengers without delay to the country from which they have come or to any other country prepared to accept them.
§ 2. Any public or private carrier which has brought passengers into the Kingdom will also be required to remove them if:
(a) the carrier that was due to take them to their country of destination refuses to allow them to embark; or
(b) the authorities in the State of destination refuse them leave to enter and send them back to the Kingdom and access to the Kingdom is refused because they do not possess the documents required by section 2 or they fall within any of the other categories referred to in section 3.
§ 3. If the passengers do not possess the documents required by section 2 and their immediate removal is not possible, the public or private carrier shall be jointly liable with the passengers for the costs of the passengers’ accommodation and stay and any medical expenses they incur.
...”
“§ 1. The following persons may be held in a designated place at the border pending the grant or refusal of leave to enter the Kingdom or their removal from the territory:
1o aliens who, pursuant to the provisions of this Act, are liable to be refused entry by the immigration authorities;
2o aliens who attempt to enter the Kingdom without satisfying the conditions set out in section 2, who claim to be refugees and request refugee status at the border.
§ 2. The Crown may designate other places within the Kingdom which will be assimilated to the places referred to in § 1.
Aliens held in such other places shall not be deemed to have been given leave to enter the Kingdom.
§ 3. Detention in a designated place at the border may not exceed two months. The Minister or his or her delegate may however prolong the detention of an alien referred to in § 1 for two-month periods provided:
1o the alien is the subject of enforceable removal directions, an enforceable decision to refuse entry or an enforceable decision upholding the refusal of entry; and
2o the steps necessary to remove the alien are taken within seven working days of the decision or measure referred to in 1o and are prosecuted with all due diligence and the alien’s physical removal within a reasonable period remains possible.
After one extension has been granted, the decision referred to in the preceding paragraph may only be taken by the Minister.
The total length of detention shall under no circumstances exceed five months.
If the preservation of law and order or national security so demands, aliens may be held for further successive one-month periods after the time-limit referred to in the preceding paragraph has expired, provided that the total length of their detention shall not on that account exceed eight months.
§ 4. The following may enter the Kingdom:
1o aliens referred to in § 1 against whom no decision or enforceable measure referred to in § 3, paragraph 1, 1o has been taken;
2o aliens referred to in § 1 against whom an enforceable decision or measure referred to in § 3, paragraph 1, 1o has been taken but in respect of whom the Minister or his or her delegate has not extended the period at the end of the two-month period or of any extension thereof;
3o aliens referred to in § 1 who have been held for a total period of five or eight months respectively.
...”
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”
“1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
...”
“1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
2. For this purpose, States Parties shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent intergovernmental organisations or non-governmental organisations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.”
“States Parties shall ensure that:
...
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
...”
40. In its “Concluding observations of the Committee on the Rights of the Child: Belgium” of 13 June 2002, the Committee on the Rights of the Child made the following recommendation to Belgium:
“28. ...
(a) Expedite efforts to establish special reception centres for unaccompanied minors, with special attention to those who are victims of trafficking and/or sexual exploitation;
(b) Ensure that the stay in those centres is for the shortest time possible and that access to education and health is guaranteed during and after the stay in the reception centres;
(c) Approve as soon as possible the draft law on the creation of a guardianship service, in order to ensure the appointment of a guardian for an unaccompanied minor from the beginning of the asylum process and thereafter as long as necessary, and make sure that this service is fully independent, allowing it to take any action it considers to be in the best interests of this minor;
(d) Ensure unaccompanied minors are informed of their rights and have access to legal representation in the asylum process;
(e) Improve cooperation and exchange of information among all the actors involved, including the Aliens Office and other relevant authorities, police services, tribunals, reception centres and NGOs;
(f) Ensure that, if family reunification is carried out, it is done in the best interests of the child;
(g) Expand and improve follow-up of returned unaccompanied minors.”
VIOLATED_ARTICLES: 3
5
8
VIOLATED_PARAGRAPHS: 5-1
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
5-4